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Cornell University Library 
 KFN5975.M12 1865 
 
 The New York civil and criminal ustice 
 
 3 1924 022 881 993 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 tine Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924022881993 
 
NEW LAW BOOKS 
 
 PUBLISHED BY 
 
 WILLIAM aOTJLD, 
 
 [Of the late Ann of Gould, Banks &, Co.] 
 
 LAW BOOKSELLER AND PUBLISHER, ' 
 
 No. 68 State Street, Albany N. Y. 
 
 Reeve's Domestic Relations— sd Edition. 
 
 PBICE $5.50. 
 
 The Law of Baron and Femme, of Parent and Child, Guardian 
 and Ward, Master and Serv.int, and of the Powers of the Court 
 of Chancery, with an Essay on the terms Pleir, Heirs, and Heirs 
 of the Body. By Tappan Reeve. Third edition, with Xotes 
 and References to English and American cases, by Hon. Amasa 
 J. Parker and Charles E. Baldwin, Esq. 
 
 From Hon. Rufus W. Peckham, Justice Supreme Court of the State of New York. 
 
 Albany, July 23, 1862. 
 ■Wn.LiAM Gould, Esq.: 
 
 Dear Sir — I have examined the edition, just issued, of Reeve's Domestic 
 Relations, witli notes by Jud^e Parker and C. E. Baldwin, Esq. The merits • 
 of tlie original book are familiar to the profession, and these notes bring the 
 work up to the present day. They seem, to be reliably accurate and full, and 
 will be very useful to the bar in the investigation of questions to which they 
 relate. Your obedient servant, 
 
 E. W. PECKHAM. 
 
 From Amos Sean, Esq., LL. D., Law Professor, UniversUy of Albamj. 
 
 Albany, August 20, 1852. 
 The work of Judge Reeve on the Domestic Relations has, ever since its 
 first appearance, befen regarded as a standard work by the legal profession. It 
 presents the matured result of his lectures and teachings fdr many years, in 
 the old Litchfield Law School. His object was to exhibit tlie common law of 
 England and such English statutes as have been generally adopted in this 
 country. The many great and vastly important changes that have be™ made 
 in the rights of married women in this and other States by legislation within 
 the last fifteen years, have rendered the earlier editions of comparatively little 
 value to the profession, so far as the first and most important relation of Baron 
 and Femme was concerned. A new edition was therefore imperatively de- 
 manded, and this has been undertaken and successfully accomplished by the 
 Hon. Amasa J. Parker and Cliarles B. Baldwin, Esq. The former has had 
 occasion to render himself familiar with the whole subject by lecturing upon 
 it annually for a number of years in the Albany Law School ; while the latter, 
 a graduate of that school, and a young lawyer of great iriSustry, method and 
 discrimination, was eminently fitted for the more laborious part of the under- 
 taking. The notes which these gentlemen have added have swelled the volumu 
 to at least one-third beyond its original size, and, to the legal profession In this 
 
country, will constitute its principal value. The very copious index at the end, 
 always of so much value to the profession, refers specially to the notes on the 
 different pages. These notes thus easily referred to, will be found to present 
 in clear and intelligent terms, and under appropriate heads, all tiie important 
 deeisioBS made in the courts of the several States, and in tliose of the United 
 States, in reference to these subjects. It .presents, therefore, both to the 
 etudent and the practicing lawyer, a work of vast importance, and one the 
 value of which can hardly be over-estimated. 
 
 "Willard on Real Estate and Conveyancing. 
 
 PRICE $6.00. 
 
 A Treatise on the Law of Real Estate and of the mode of 
 alienation thereof, with an appendix of Forms of Corive3'ancing, 
 and notes, adapted to the Law of the State of New York, by- 
 John Willard, LL. D., late one of the Justices of the Supreme 
 Court of the State of New York, and author of a Treatise on 
 Equity Jurisprudence, and a Treatise on the Law of Executors, 
 Administrators and Guardians. 
 
 TABLE OF CONTENTS: 
 Part First. Of tlie Law of Real Estate. 
 Chap. 1. Of tenure, and of the persons Chap. 4. Of estates upon condition, 
 capable of holding and con- 5. Of the law of mortgages, 
 
 veying lands. 6. Of estates in expectancy. 
 
 2. Of real estate, its natijire, qna- 7. Of estates with respect to a 
 
 lity and quantity of interest. severalandjointownership. 
 
 3. Of estates less than freehold. 8. Of incorporeal hereditaments. 
 
 Part Second. Of Equitable Estates. 
 Chap. 1 . Of uses and trusts. Chap. 3. Of marriage settlements. 
 
 2. Of powers. 4. Of merger. 
 
 Part Third. Of the Mode of Alienation of Beal Property. 
 CJiap. 1. Of title to things real. Chap. 8. Of alienation of real property 
 
 2. Of title by descent. through the exercise of the 
 
 3. Of the rules of descent. right of eminent domain. 
 
 4. Of title by purchase. 9. Of alienation of real estate, 
 
 5. Of the ahenation of real estate by devise. 
 
 by the voluntary act of the 10. Oftheconstmctionof devises, 
 
 parties inter vivos. 11. Of abstracts ; examination 
 
 6. Of the several kinds of Seeds thereof; seai'ching for in- 
 
 known to the law. cumbraiices and preparing 
 
 7. Of alienation of real estate by the conveyance, and at 
 * the order or permission of whose expense. 
 
 some tribunal or public oflicer. Appendix of forms. 
 
 F'\m Amos Sean, Esq., LL. Z>., Law Professor, Univei-siU/ of AHany. 
 
 Albany, July 6, 1361. 
 ■William Gould, Esq., 
 
 Dear Sir — Having examined with some care the recent work of Judge 
 "Willard on Real Estate and Conveyancing, I beg leave to say, that in my 
 judgment it is a work eminently fitted to meet the wants of the profession, so 
 far as relates to the law of Real Estate. It is a work admirably arranged, • 
 clearly methodized, and developed upon a plan at once easily comprehensible 
 by the student, and of ready reference by the lawyer. Wliile it avoids the 
 ostentatious display of learning which too often in modern works swells the size 
 of a volume by foot notes •containing references to numerous eases upon a 
 single point, thus confusing and perplexing, without leading to any clearness 
 of result, Judge Willard has judiciously placed his references in immediate 
 
connection with the lesral principles they are designed to ilhistrate and apply; 
 and while these are sufficiently ample for every want of the profession, they 
 do not by their number oppress, confuse, and waste time by a worse than use- 
 less examination of cases having little or no reference to the point under inves- 
 tigation. It is to be hoped that in this respect, his example may be followed 
 by other elementary writers. The saving of time and useless labor, thus 
 accomplished, is no small object to the legal profession. 
 
 This is a work of immense practical value, especially to the legal profession 
 in this State. It embraces all the important topics oonnecteri with the law of 
 real estate. The great changes from the common law made in this species 
 of property by the Revised Statutes, which went into effect in 1830, aud the 
 construction put upon many of the most important provisions by decisions of 
 the courts since tliat time, render a complete and exhaustive work on tliat 
 subject, at the present time, very desirable. The fact that most of the litigation 
 relating to real estate is a proceeding in rem, settling forever, by its result, the 
 right to the thing itself, gives an importance to all successful attempts to give 
 the law of that species of propei-ty, which does not attach to matters of a mere 
 personal nature. Very respectfully yours, 
 
 AMOS DEAN. 
 
 Gould's Pleadings. 
 
 A Treatise on the Principles of Pleadings, in civil actions, by- 
 James Gould, LL. D. 
 
 "It is one of the most honorable, laudable, and profitable (useful) things in 
 our law, to have the science of well Pleading, in actions, real and personal." — 
 LittMon. 
 
 Ordine placitandi servato, servatur et Jus. — Gohe. 
 
 "The laws itself spedketh by good pleading, as if pleading were the living 
 voice of the laws itself." — Ih. 
 
 Fourth edition, with notes adapted to the New York Code of 
 Procedure, by George Gould, one of the Justices of the Supreme 
 Court of the State of New York. Price $4.50. 
 
 " Gould's Pleadings is a legal classic of the highest order, aud has placed its 
 author among the best legal writers of the age."— JIarvin's Legal Bibliography. 
 
 "The great desideratum, an elementary and philosophical treatise of Pleading, 
 seems to have been accomplished by Judge Gould. The remark of Sargent 
 Stephens, that 'Pleadings when properly understood and appreciated, appears to 
 he an instrument so well adapted to the ends of distributive justice, so simple and 
 striking in its fundamental principles, so ingenious and elaborate in its details, as 
 fairly to be entitled to the character of a fine judicial invention.' This needs no 
 other confirmation, than the production of our countryman, whose work builds 
 up, on the established elementary principles of science, a consistent, rational 
 and practical system. We should be pleased to see Judge Gould's work in the 
 hands of every student." — Hoffman's Legal Studies. 
 
 From Bon. Ird Harris. 
 
 Albany, May 13, 1861. 
 Dear Sir — I have examined with some attention your new edition of 
 "Gould's Pleadings," with the notes and references to the Code of this State. 
 I have long regarded the Treatise itself as one of the best, if not the very best 
 work on that subject which has ever been published. I know of n6 other 
 writer who has with equal clearness and accuracy arranged and stated the 
 principles of Pleading. And as these principles under all systems of pleading 
 are substantially the same, the work has lost none of its value by the adoption 
 of the New York Code. 
 
The notes of the present edition, prepared by a son of the distinguished 
 author, himself now, an eminent judge in this State, show with great brevity 
 and distinctness what changes in this department of the law have been effected 
 b;v the New York Code, and wherever that Code has been adopted, must add 
 greatly to the value of the work. I am glad, therefore, to see this standard 
 book reproduced in this useful form. Yours, with respect, 
 
 "William Gould, Esq. IRA HARRIS. 
 
 McCall's Clerk's Assistant— 2d Edition, 1863. 
 
 PKICE $3.50. 
 
 The Clerk's Assistant, containing a large variety of legal 
 fprms and jtistruments, adapted • not only to county and town 
 officers, but to the wants of professional and business men 
 throughout the United States, having particular reference to 
 the Middle, Eastern and Western States, by Henry S. McCall, 
 Counselor-at-Law. 
 
 Fr(ym the Albany Evening Journal. 
 The object of this work is to supply a demand which has long existed, that 
 of a complete book of Forms, adapted to the late changes in our statutes. It 
 is arranged alphabetically as to subjects, and the full and complete index is so 
 admirably arranged that any particular form can be instantly turned to. For 
 the use of business men, such a work is invaluable, as the varied Forms 
 of Leases, Bills, Bonds, Contracts, Assignments, Deeds, Mortgages, Powers of 
 Attorney, are here already drawn to his hand, and the merest tyro, with such 
 a work, will be able without the assistance of a lawyer, to prepare the varied 
 papers he may require. For the magistrate, the chapters on Justices' Courts, 
 Lunatics, Town Officers, Strays, Pensions and Poor Laws, contain an amount 
 of Information and instruction, such as can be found in no other work. The 
 care and attention with which the work has been prepared, gives assurance 
 that the work will be found of great value to those engaged in any business, 
 mercantile or proffessional. 
 
 Prom Isaac Edwards, Counsehr-ai-Law and author of Edwards on Bailments 
 and Edwards on Bills and Promissory Notes, 
 
 Albany, Nov. 26, 1860. 
 I have examined McCall's Clerk's Assistant with considerable care. It 'is 
 comprehensive, happily arranged, and complete in all its details — just such a 
 ready handbook as every professional man finds more convenient than any 
 other, and every business man must have. And it greatly enhances the value 
 of the book to know, as every one may be assured, that the preliminary in- 
 structions, as well as the precedents given, have been carefully prepared by a 
 competent and skillful hand, and may therefore be relied upon as furnishing 
 not only a form, but also a reliable guide in the transaction of business. 
 
 ISAAC EDWARDS. 
 
 Willard on Executors. 
 
 PBICE $5.00. 
 
 A Treatise on the Law of Executors, Administrators and 
 Guardians, and of the remedies by and ngainst them, in Surro- 
 gates' Courts of the State of New York; together with an 
 account of the Jurisdiction and Practice of those Courts, in the 
 
Admeasurement of Dower, by John Willard, LL. D., late one 
 of the Justices of the Supreme Court of the State of New 
 York, and author of a Treatise on Equity Jurisprudence. 
 
 CONTENTS: 
 
 Part First. Of the Court having original jurisdiction in the State of New 
 York in matters testamentary and of intestacy. 
 
 Part Second. Of the original and exdvMve jurisdiction of the Surrogate's 
 Courts; and lierein of the appointment of executors and administrators. 
 
 Chap. 8. Of special, limited temporary 
 administrators and collec- 
 tors. 
 9, Of the effect of probate and 
 lettei'S of admiuistratioa as 
 long as they are in force ; of 
 the revocation of them, and 
 of the conseqnences thereof. 
 
 10. Of the inventory. 
 
 11. Of the payment of the per- 
 sonal charges, and the order 
 of paying the other liabili- 
 ties of the estate. 
 
 12. Of the rights and duties of 
 executors and administra- 
 tors with respect to the 
 payment of the debts of 
 the deceased. 
 
 Chap. 1. Of wills, their origin, nature 
 and incidents. 
 
 2. Of making, revoking and re- 
 
 publishing wills ; and herein 
 of th.e persons capable of mak- 
 ing a will or codicil. 
 
 3. Of the form and manner of 
 
 making a will and codicil. 
 
 4. Of the revocation of wills. 
 
 5. Of the appointment of execu- 
 
 tors ; their acceptance, refus- 
 al and renunciation of the 
 office. 
 
 6. Of probate, and of the proof 
 
 and recording of wills of real 
 estate. 
 
 7. Of administration, and the ap- 
 
 pointment of administrators. 
 
 Part Third, 
 exclusive 
 courts. 
 
 cogi^izable in Surrogates'' Courts of which they have not 
 and herein of various statutory proceedings in those 
 
 Chap. 1, Of proceedings by executors or Chap. 3, 
 administrators on their own 
 application before the surro- 
 gate, to obtain' authority to 4, 
 mortgage, lease or sell the 
 real estate of the deceased for 
 the payment of del)t.B. 
 2. Of proceedings against execu- 
 tors or administrators to cause 
 an application to be made to 
 the surrogate for an order to 
 lease, mortgage, or sell the 
 real estate of the deceased for 
 the payment of his debts. 
 
 Of legacies, their different 
 kinds and incidents, and 
 the construction thereof. 
 
 4. 0^" the payment of legacies ; 
 and herein of the payment 
 of the residue and of distri- 
 butive shares. 
 
 5. Of enforcing the payment of 
 legacy and of distributive 
 shares in surrogates' courts ; 
 and herein of compelling 
 and rendering final ac- 
 counts. 
 
 6. Of guardian and ward. 
 
 7. Of admeasurement of dower. 
 
 Appendix of iorme. 
 
 Howard's Practice Reports. 
 
 27 VOLUMES, PBICE $121.50. 
 
 Reports of cases argued and determined in the Supreme Court 
 and Court of Appeals of the State of !New York, with j^oints of 
 practice decided, from 1844 to 1863. These reports are espe- 
 cially valuable as giving a connected line of decisions under the 
 Constitution of 1846 and Code of Procedure, from their adop- 
 tion. They are indispensable to the practitioner in the State of 
 New York, and will be found very useful in the States having a 
 similar Code. 
 
McClellan's Executor's Guide. 
 
 PEICB $1.75. 
 
 The Executor's Guide; A Complete Manual for Executors, 
 Administrators and Guardians, with a full exposition of their 
 rights, privileges, duties and liabilities, and of the rights of 
 Widows in the Personal Estate and to Dower, with Forms, by 
 Robert H. McClellan, Counselor-at-Law, and late Surrogate, 
 Rensselaer county. 
 
 RBCOMMESTDATIOJSrS. 
 From, 0. A. Waldron, Esq., Surrogate of Saratoga County. 
 
 Suebosate's -Office, ) 
 
 "Waterford, July 16th, 1863. ) 
 E. H. McClellan, Esq. : ( 
 
 Dear Sir — I have with great aatisfaotlon perused and examined your 
 Treatise or Guide for Executors, Administrators, &c., and unhesitatingly 
 pronounce it the most perfect and concise work, for the purpose evidently 
 intended, that I have yet seen or examined. It will he of great practical 
 benefit, and its simplicity will commend it to every person having duties to 
 perform relative to the subjects upon wliioh it treats. Everybody having charge 
 of the estates of deceased persons or of minors, should have a copy. 
 
 Tours, respectfully, 
 
 C. A. WALDRON. 
 
 From Moses Wojrren, Esq., Surrogate of Rensselaer County. 
 
 ate's Office, 
 Troy, Jan. 29th, 1863, 
 
 Surrogate's Office, ) 
 
 Egbert H. McClellan, Esq. : 
 
 Sir — I have examined your Treatise on the duties of Executors, Adminis- 
 trators and Guardians. It wiU be found to be a work of great practical value 
 to those officers in the discharge of their duties. The arrangement, bringing 
 together those sections of the statute bearing upon the point under considera- 
 tion, will be found of great convenience to the legal profession and surrogates, 
 as well as to those officers for whom it was more specially Intended. I 
 believe your work will supply a need much felt. It gives me much pleasure 
 to say it supplies it well. Yours, truly. 
 
 From Bon. George GoiM. 
 
 MOSES WAEREN. 
 
 Trot, Jan. 29, 1862. 
 
 E. H. McClellan, Esq. : 
 
 Dear Sir — I have read with considerable care, your Treatise on the duties 
 of Executors and Administrators, and I think there can be no doubt that it 
 will be found very useful, as a brief, convenient and correct book of reference 
 for persons charged with such duties. For them, a reference to the law in any 
 other form than that of some such digest, is of course impossible. And I 
 have no doubt your Treatise will be found to combine the general principles 
 required, with enough of detail for great practical benefit. . 
 
 Respectfully yours, 
 
 GEO. GOULD. 
 
McCall's Constable's Guide. 
 
 PKICE $1.75. 
 
 The Constable's Guide : Being a concise Treatise on the 
 Powers and duties of Constables in the State of New York. To 
 whicAi is added an Appendix, containing most of the practical 
 Forms necessary to be used by them in their several duties. By 
 H. S. MoCall, Counselor-at-Law. 
 
 EEOOMMENDATIONS. 
 From Hon. George Wolford, Judge, Albany County. 
 
 Albant, June 2, 1862. 
 ■WiLLiAii Gould, Esq. : 
 
 Dear Sir — I have just completed an examination of the Constable's Guide, 
 an admirable little treatise on the powers and duties of constables in this 
 State, by H. S. McCall, eounselor-at-law. 
 
 This work comprises all the pTovisions of the Revised Statutes and the acts 
 of the Legislature relating to the powers and duties of constables, together 
 ■with the decisions of our courts construing the statutes, and detailing and 
 explaining the numerous and delicate powers and duties of those officers. 
 
 While the subjects discussed are exhausted, the law is clearly and concisely 
 presented. Among the peculiar merits of the work are the methodical 
 arrangement of subjects, an appendix of useful and instructive forms, and an 
 excellent index, so indispensable to the utility of every law book. A work of 
 this character has been much needed by the profession, and by officers and 
 others having business relations with our courts; and let me congratulate you 
 upon the success with whicii, in my opinion, the efforts of Mr. MoCall and 
 yourself have been crowned, in fully supplying this want. 
 
 I am very truly yours, 
 
 GEORGE WOLFORD. 
 
 From Hon. Alexander S. Johnson. 
 
 Albany, June 4, 1863. 
 WttLiAM Gould, Esq. : 
 
 Dear Sir — At your request I have looked over, with some attention, " The 
 Constable's Guide," by H. S. McCall, which you are about to pubHsh. I am 
 satisfied that the work contains, in a plain and readily comprehended form, all 
 the legal information which that numerous and important class of officers need 
 to possess, and that it is well calculated to be generally useful. 
 
 Tours &c., ALEXANDER S. JOHNSON". 
 
 Street's New York Council of Revision. 
 
 Sketches op Members and Eaklt Courts. 
 
 The Council of Revision of the State of New York, its His- 
 tory, a History of the Courts with which its members were 
 connected, Biographij;jal Sketches of its Members, and its 
 Vetoes. By Alfred B. Street. Price I4..50. 
 
 From Hon. Charles 0' Conor. 
 
 New York, Feb. 1, 1860. 
 My Dear Sir — Your work on the Council of Revision is an important addition 
 to the legal literature of our State. The historical and biographical portions 
 are interesting and valuable. For your industry in bringing tho Vetoes to 
 
8 
 
 light, and placing them in an easily accessible form, the Bench and the Bar are 
 deeply indebted to you. The Vetoes will afford great aid in the oft recurring 
 and occasionally difficult task of expounding our earlier statutes. As memo- 
 rials of public virtue, they are very gratifying to our pride, and we may fairly 
 hoiiR, will prove effective incentives to emulation. The fideUty of our judges 
 iu guarding fundamental principles against the encroachments of inconsiderate 
 or partial legislation, is apparent from our law reports ; but a perusal of your 
 boolt, abounding as it does with instances of their efforts in that direction, will 
 tend greatly to increase the reverence so justly due to the judiciary of New 
 York. 
 
 A learned and liberal profession will award to this valuable work the pat- 
 ronage it so eminently deserves. 
 
 I am, dear sir, with great respect, yours truly, 
 
 CHARLES O'CONOR. 
 
 Bingham on Infancy. 
 
 The Law of Infancy and Coverture, by Peregrine Bingham, 
 A. B., of Middle Temple. Second American from the last Lon- 
 don edition, with notes and references to English and American 
 Cases, by E. H. Bennett. Price |2.50. 
 
 Blatchford's Circuit Court Reports, 2 Vols. 
 
 Reports of cases argued and determined in the Circuit Court 
 of the United States, for the Second Circuit. By S. Blatchford, 
 Esq. Hon. Samuel Nelson, Justice. Two Vols. $13.00. 
 
 Laws of New York, 1860, 1861, 1862, 1863, 1864 
 and 1865. 
 
 21st, 22d, 23d, 24th, 25th, 26th and 27th Vols. New 
 York Reports. 
 
 Crth, 8th, 9th, 10th, 11th, 12th and 13th Vols. Smith's Court of Appeals Reports.) 
 
 B^^ Will be pleased to receive orders from the Profession 
 for any Works in his department of the trade. 
 
 §^~ An extensive stock of Second Hand Law Works on 
 hand. Law Blanks of the most approved form. 
 
 Albant, April, 1865. 
 
THE 
 
 NEW YORK CIYIL AND CRIMINAL 
 
 JUSTICE: 
 
 A COMPLETE TREATISE ON THE 
 
 CIVIL, CRIMINAL, AND SPECIAL POWEKS AND DUTIES 
 
 JUSTICES OF THE PEACE 
 
 IN THE STATE OF NEW YORK; 
 
 WITH NUMEROUS FORMS. 
 
 THIED EDITION: REVISED AND ENLARGED. 
 
 Bt H. S. McCALL, Counsellor-at-Law. 
 
 ALBANY: 
 
 WILLIAM GOULD, 68 STATE STREET. 
 1865. 
 

 Entered according to Act of Congress, in the year one liiousand eight hundred and fifty-three, 
 
 BY DERBY & MILLER, 
 
 In the Clerk's Office of the DiBtriet Court of the United States for the Northern District of 
 
 New York. 
 
 Entered according to Act of Congress, in the year one thousand eight hundred and fifty-nine, 
 
 BY C. M. SAXTON, 
 
 In the Clerk's Office of the District Court of the United States for the Southern District of 
 
 New York. 
 
 Entered according to Act of Congress in the year one thousand eight hundred and sixty-five, 
 
 BY H. S. McCALL. 
 
 In the Clerk's Office of the District Court of the United Slates for the Northern District of 
 
 New York. 
 
 TAN BENTHUTSEn's STEAM PBINTINO HOUSE. 
 
PRE FAC E. 
 
 The great favor with which the New York Civil and 
 Criminal Justice has been received has induced the 
 preparation of the present edition. The rapid sale of 
 two large editions has shown it to be a work well suited 
 to the purpose for which it was designed. 
 
 The preparation of the first edition was commenced 
 by the late John S. Jenkins, Esq., and completed by 
 Messrs. Cheistopher Morgan, Samuel Blatchford and 
 Clarence A. Seward. The second edition was amended 
 and enlarged by Messrs. Abbott Brothers. The work 
 having been for some time out of print, and there being 
 a large call for it, both from Justices and members of 
 the legal profession, it was thought advisable to review 
 the whole work, make such alterations as the various 
 changes in our statutes required, bring the citation of 
 authorities down to the present time, and add quite a 
 number of forms to the already large number contained 
 in the work. It will be seen that more than thirty 
 pages have been added to the text, and the Index ren- 
 dered fuller and more complete. 
 
 Of the multitude of authorities with which our rapidly 
 increasing volumes of reports abound, it cannot be 
 expected that all or nearly all can be referred to in a 
 work of this kind. To embrace them all, would ma^ke 
 
IV PEEFACB. 
 
 the work too large for the purposes for which it was 
 designed. A judicious selection of the more important 
 cases is all that can be expected or desired. Those who 
 wish to pursue the study of the different topics, will 
 find them fully discussed in those books which are de- 
 voted exclusively to the several subjects; and those 
 who have not time to continue their investigations 
 further, will find the present volume well adapted to 
 their wants. 
 
 It is difficult to acquire that happy medium adapted 
 both to the wants of the Justice and the legal profes- 
 sion ; that such a medium has been reached, the large 
 demand for the former editions of the present work 
 would seem to warrant. 
 
 The present edition is submitted to the attention of 
 those who have business both as members and prac- 
 titioners in our Justices' Courts, hoping that all who 
 have occasion to use it will find it well adapted to all 
 their requirements. 
 
CONTENTS. 
 
 INTEODUCTION. 
 
 Page. 
 
 Of the Office of Justice of the Peace 1 
 
 P^RT I. 
 
 OF THE CIVIL JURISDICTION OF JUSTICES OF THE PEACE. 
 
 CHAPTER I. 
 
 Of the Nature and Extent of the Jurisdiction 17 
 
 CHAPTEE II. 
 
 Of the Causes of Action cognizable before Justices' Courts 26 
 
 1. Amount in controversy 31 
 
 2. Territorial jurisdiction 34 
 
 3. Jurisdiction of the person 35 
 
 CHAPTER III. 
 
 Of Actions generally, their Subjects, and Incidents 37 
 
 1. Contracts generally 37 
 
 2. Contracts of sale 39 
 
 3. Statute of frauds 40 
 
 4. Sales and mortgages of chattels 50 
 
 5. Warranty 55 
 
 6. Bailment 57 
 
 7. Money paid, laid out, and expended, &c 61 
 
 8. Contracts relating to lands 63 
 
 9. Use and occupation of lands 65 
 
 10. Promissory notes 65 
 
 11. Interest 72 
 
 12. Usury 73 
 
 13. Payment 76 
 
 14. Illegal contracts 77 
 
 15. Contracts made on Sunday 80 
 
 16. Fraudulent contracts 82 
 
 17. Husband and wife 87 
 
 18. Parent and child , 91 
 
 19. Infants 93 
 
VI ONTENTS. 
 
 Pago. 
 
 20. Executors and administrators 94 
 
 21. Corporations 95 
 
 22. Principal and agent 97 
 
 23. Partnersliip 1 03 
 
 Limited partners^hip 108 
 
 24. Injuries to the person, and to real and personal property, 110 
 
 (1.) Injuries to the person 110 
 
 (2.) Injuries to real property 110 
 
 (3.) Injuries to personal property 114 
 
 2.5. Penalties and forfeitures 119 
 
 26. Fixtures 125 
 
 27. Mechanics' liens 128 
 
 CHAPTER IV. 
 Of the time of commencing Civil Actions 136 
 
 CHAPTER V. 
 Of the Parties to Civil Actions 145 
 
 CHAPTER VI. 
 
 Of the Commencement of Civil Actions, and the different Forms 
 
 of Process 156 
 
 1. Long summons 156 
 
 3. Warrant 160 
 
 3. Short summons 163 
 
 4. Attachment 165 
 
 CHAPTER VII. 
 Of the Service and Return of Process 173 
 
 1. Summons 173 
 
 2. Warrant 174 
 
 3. Attachment 181 
 
 4. Process generally 189 
 
 5. Substituted service 191 
 
 6. Replevin 192 
 
 CHAPTER VIII. 
 Of the appearance of Parties 202 
 
 CHAPTER IX. mn 
 
 Of Pleadings 209 
 
 1. Pleading generally 210 
 
 2. Complaint 212 
 
 3. Demurrer 21 3 
 
 4. Offer to allow judgment 215 
 
 5. Answer 216 
 
 6. Amendments 218 
 
 7. Plea to the jurisdiction 220 
 
 8. Former action 222 
 
 9. Plea of payment 222 
 
 10. Plea of tender 223 
 
 (1.) Tender generally 228 
 
CONTENTS. VH 
 
 Page. 
 
 (2.) By whom a tender may be made 22.5 
 
 (3.) What is a pood tender 225 
 
 (i.) As to the thing tendered 226 
 
 (5.) At what place a tender must be made 228 
 
 (6.) At what time a tender must be made 229 
 
 (7.) To whom a tender must be made 230 
 
 (8.) The consequences of a tender and refu.sal 230 
 
 (9.) Tender, after action brought 231 
 
 11. Set-oflF 233 
 
 12. Recoupment 240 
 
 13. Plea of title 243 
 
 CHAPTER X. 
 
 Of Adjournments 248 
 
 1. On motion of the Justice 248 
 
 2. On motion of the plaintiff 249 
 
 3. Oq motion of the defendant 252 
 
 4. Further adjournments 256 
 
 5. Irregular adjournments 257 
 
 6. Waiver of irregularity 259 
 
 7. General rules 260 
 
 CHAPTER XI. 
 
 Of Commissions and Subpoenas 261 
 
 1. Commissions 261 
 
 2. Subpoenas 270 
 
 (1.) The issuing of a subpoena 270 
 
 (2.) The service of a subpoena 271 
 
 (3.) Attachment to compel the attendance of a witness, 272 
 (4.) Duty of a witness, and what will excuse non-attend- 
 ance 274 
 
 (5.) When damages may be recovered from a defaulting 
 witness 275 
 
 (6.) When a defaulting witness may be fined and impris- 
 oned .' 275 
 
 CHAPTER XII. 
 
 Of the Trial of Issues of Fact 279 
 
 1. G-eneral rules , . , 280 
 
 2. Trial by jury 282 
 
 (1.) Venire 282 
 
 (2.) Qualifications and exemptions of jurors 285 
 
 (3.) Drawing of the jury 289 
 
 (4.) Challenges to the jurors 290 
 
 (5.) Swearing the jury 293 
 
 (6.) Statement of the cause of action 293 
 
 (7.) Evidence 294 
 
 (8.) Swearing witnesses 295 
 
 (9.) Punishment of witnesses who refuse to testify .... 296 
 
 (10.) Examination of plaintiff's witnesses 298 
 
 (11.) Nonsuit ,. 299 
 
Vlll CONTENTS, 
 
 Page. 
 
 (12.) Statement of the defence 300 
 
 (13.) Examination of defendant's witnesses 300 
 
 (14.) Amendment of pleadings 300 
 
 (15.) Summing up 301 
 
 (16.) Ketiring of the jury 301 
 
 (17.) Receiving of the verdict 304 
 
 (18.) Variance 306 
 
 (19.) Contempts of Court 306 
 
 CHAPTEK XIII. 
 
 Of Evidence 307 
 
 1. The nature and principles of evidence < 307 
 
 2. Things judicially taken notice of without proof 308 
 
 3. The various kinds of evidence 309 
 
 4. Presumptive evidence 311 
 
 The relative value of direct and of circumstantial evi- 
 dence 323 
 
 5. Relevancy of evidence 325 
 
 6. Burden of proof 327 
 
 7. Amount of proof 329 
 
 8. The best evidence 330 
 
 9. Hearsay evidence , 333 
 
 (1.) Matters of public or general interest 338 
 
 (2.) Ancient documents 338 
 
 (3.) Declarations of deceased persons 338 
 
 (4.) Dying declarations 339 
 
 (5.) Testimony of deceased witnesses 340 
 
 10. Admissions 343 
 
 (1.) By whom an admission may be made 343 
 
 (2.) The time and circumstances of the admission 349 
 
 (3.) Implied admissions 349 
 
 (4.) The whole admission must be given in evidence. . . . 350 
 
 (5.) The conclusiveness of an admission ^ 351 
 
 11. Evidence excluded from public policy 352 
 
 12. Evidence required by the statute of frauds 353 
 
 13. Parol evidence to vary written instruments 355 
 
 (1.) Parol evidence to annul written instruments 357 
 
 (2.) Parol evidence to show a subsequent variance of a 
 
 written instrument 357 
 
 (3.) Parol evidence as to the consideration of written 
 
 instruments 358 
 
 (4.) Usage 359 
 
 14. Competency of witnesses 359 
 
 (1.) Persons excluded by statute and by the common law 360 
 
 (2.) Persons rendered competent by special statue 363 
 
 1. Corporators 363 
 
 2. Indians , 364 
 
 3. Owners of lost baggage 364 
 
 4. Persons betting and gaming 364 
 
 5. Plaintiff, where the defence is usury 364 
 
CONTENTS. IX 
 
 Pago. 
 
 6. Persons interested in actions on demands bought 
 
 for suit 365 
 
 7. Parties to the action 365 
 
 8. Interested witnesses 366 
 
 15. Examination of parties 367 
 
 16. Mode of examining witnesses 372 
 
 (1.) Privilege of witnesses 372 
 
 (2.) Direct examination 374 
 
 (3.) Cross-examination 377 
 
 (4.) Impeachment of witnesses 380 
 
 (5.) Ee-direct examination 381 
 
 (6.) Sustaining impeached witnesses 382 
 
 17. Public documents 383 
 
 (1.) Public documents not judicial 383 
 
 (2.) Records and judicial writings 385 
 
 (3.) Documentary evidence generally 388 
 
 Aliens, Depositions of 388 
 
 Attorneys, Letters of 388 
 
 Certificates to documentary evidence, Form of 389 
 
 Canal maps 389 
 
 Canal contractors' bonds 390 
 
 Chattel mortgages, Copies of 390 
 
 Common Council of New York, Proceedings of 390 
 
 Conveyances, &c.. Certificates of proof and acknowl- 
 edgment of 391 
 
 Corporations, Certificates of incorporation of 398 
 
 Corporations, Seals of 400 
 
 County clerks, Papers certifieed by 400 
 
 Depositions in perpetuam rei memoriam 400 
 
 Firemen, Certificates as to service of 400 
 
 Insolvent's discharge 401 
 
 Legislative papers 401 
 
 Land Companies, Papers and field notes of 401 
 
 Loan Commissioners, Certificates of 401 
 
 Lost papers, Certificates as to 403 
 
 Marriage certificates • • • 403 
 
 Notary's Certificates 403 
 
 Offices of the State Grov't, Papers deposited in the 404 
 
 Plank and turnpike roads, Transfer books of 405 
 
 Printers' affidavits 405 
 
 Redemption of real estatCj Certificates of 406 
 
 Statutes of this State 406 
 
 Taxes unpaid. Certificates of 407 
 
 Town clerks. Papers in offices of 407 
 
 Trustees of Absconding Debtor 407 
 
 Villages, Certificates of incorporation and proceed- 
 ings of ' • 407 
 
 Wills 407 
 
 Written instruments generally, Proof or acknowl- 
 edgment of 408 
 
CONTENTS. 
 
 Page. 
 
 18, Private writings 408 
 
 (1.) Production of private writings 408 
 
 (2.) Mode of proving private writings 411 
 
 (3.) Admissibility of shop books 413 
 
 19. Evidence in particular actions 416 
 
 (1.) Agency 416 
 
 (2.) Assumpsit 416 
 
 (3.) Common carriers 418 
 
 (4.) Damages 420 
 
 (5.) Infancy 421 
 
 (6.) Limitations 422 
 
 (7.) Partnership 423 
 
 (8.) Payment 424 
 
 (9.) Promissory notes 425 
 
 1. The existence of the note 425 
 
 2. The relation of the defendant to the note 427 
 
 3. The interest of the plaintiff in the note 427 
 
 4. The breach of contract by the defendant 428 
 
 (10.) Tender 432 
 
 (11.) Trespass 433 
 
 (12.) Trespass on the case 435 
 
 (13.) Trover 486 
 
 CHAPTER XIV. 
 Of Damages 439 
 
 1. Liquidated damages - 440 
 
 2. Vindictive damages 441 
 
 3. General and consequential damages 442 
 
 4. Damages for breach of contract generally 444 
 
 5. Damages on a breach of warranty 446 
 
 6. Damages for not delivering goods sold 447 
 
 7. Damages against common carriers and factors 448 
 
 CHAPTER XV. 
 
 Of Judgments, Dockets, and Transcripts 450 
 
 1. Judgments generally 450 
 
 2. Judgments by confession 451 
 
 3. Judgment of non-suit 453 
 
 4. Judgment after a trial 453 
 
 5. Transcript of Judgment 455 
 
 6. Revival of judgment 459 
 
 8. The justices' docket and papers 459 
 
 CHAPTER XVL 
 
 Of Costs and Pees in Civil Proceedings 465 
 
 1. Costs 465 
 
 2. Fees 468 
 
 CHAPTER XVII. 
 
 Of executions 478 
 
 1. Issuing executions 473 
 
CONTENTS. XI 
 
 Page. 
 
 2. Renewing executions 477 
 
 3. Executions on judgments docketed in County Court .... 478 
 
 4. Levy and sale 479 
 
 5. Property exempt from execution 491 
 
 6. Imprisonment on execution 494 
 
 7. Return of execution 496 
 
 CHAPTER XVIII. 
 
 Of Appeals 497 
 
 1. Appeal, when and how taken 499 
 
 2. Stay of execution 502 
 
 3. Return to appeal 503 
 
 4. Proceedings in appellate Court 505 
 
 5. Costs and fees on appeals 509 
 
 I^^RT II. 
 
 OF THE CRIMINAL JURISDICTION OF JUSTICES OF THE PEACE. 
 
 CHAPTER I. 
 
 Of Crimes in general 515 
 
 Of Persons capable of Committing Crime 517 
 
 Insanity 518 
 
 CHAPTER II. 
 Of the Criminal Jurisdiction of Justices of the Peace generally, 
 
 and of Police Justices 520 
 
 1. Gen-eral powers 521 
 
 2. Affrays and riots 525 
 
 3. Contempts of Court 525 
 
 4. Dying Declarations 530 
 
 5. Search warrants 531 
 
 6. Searching prisoners 534 
 
 7. Stolen property 535 
 
 CHAPTER III. 
 Of the process for the Arrest of Offenders 536 
 
 1. The complaint 537 
 
 2. The warrant 556 
 
 CHAPTER IV. 
 Of the Execution of the warrant 563 
 
 1. Serving the warrant 563 
 
 (1.) Arrest 563 
 
 (2.) Escape 566 
 
 (3.) Indorsing the warrant 567 
 
 2. Bringing up the prisoner 568 
 
 CHAPTER V. 
 
 Of the Examination of Persons Arrested 571 
 
 1. Examination of the Complainant and his witnesses, 573 
 
XU CONTENTS. 
 
 Page. 
 
 2. Examination of the prisoner and his witnesses 674 
 
 3. Discharge of the prisoner 579 
 
 4. Recognizing the complainant and his witnesses 579 
 
 CHAPTER VI. 
 
 Of Commitments 583 
 
 1. Commitment, when to be made 583 
 
 (1.) Crimes punishable with death 584 
 
 (2.) Crimes punishable by imprisonment in a State prison, 
 
 for a period exceeding five years 585 
 
 2. To what prison 602 
 
 3. The mittimus 602 
 
 CHAPTER VII. 
 
 Of Bail and its Incidents 608 
 
 1. What offences are bailable by a Justice , 608 
 
 2. Bail, when to be taken 623 
 
 3. Bail, by whom to be given 625 
 
 4. Contents of the recognizance 626 
 
 5. Eorm of the recognizance 627 
 
 CHAPTER VIII. 
 
 Of Courts of Special Sessions generally, and Trials therein 629 
 
 1. Jurisdiction of Courts of Special Sessions 629 
 
 2. By whom held 635 
 
 3. Disposition of the prisoner while awaiting trial 635 
 
 4. The trial 637 
 
 (1.) The prisoner's plea 637 
 
 (2.) Trial by the Justice. . 639 
 
 (3.) Trial by a jury .640 
 
 (4.) Witnesses 642 
 
 (5.) Evidence 643 
 
 (6.) Verdict of the jury 644 
 
 (7.) General rules 645 
 
 5. Proceedings subsequent to the trial .... 646 
 
 6. Judgment when the complaint was malicious 650 
 
 CHAPTER IX. 
 
 Of Courts of Snecial Sessions in Particular Localities 651 
 
 CHAPTER X. 
 
 Of the Compromise of Offences 663 
 
 CHAPTER XI. 
 
 Of Proceedings to Reverse Judgments in Criminal Cases 665 
 
 CHAPTER XII. 
 
 Of Surety of the Peace. 671 
 
 CHAPTER XIII. 
 
 Of Fees in Criminal Cases , 677 
 
CONTENTS. Xlll 
 
 F-A.RT III. 
 
 OF THE SPECIAL POWERS AND DUTIES OF JUSTICES OF THE PEACE. 
 
 CHAPTER I 
 
 Page. 
 
 Of the Acknowledgment and Proof of Conveyances and other 
 Written Instruments 686 
 
 CHAPTER II. 
 Of Affidavits and Oaths 698 
 
 CHAPTER III. 
 Of Apprentices 700 
 
 CHAPTER IV. 
 Of Bastards 714 
 
 CHAPTER V. 
 Of Beggars and Vagrants 736 
 
 CHAPTER VI. 
 Of Disorderly Persons 740 
 
 CHAPTER VII. 
 
 Of the Disturbance of Religious Meetings, the Observance of 
 Sunday, and Profane Cursing and Swearing 746 
 
 1. The disturbance of religious meetings 749 
 
 2. The observance of Sunday 752 
 
 3. Profane cursing and swearing 753 
 
 CHAPTER VIII. 
 Of Dogs 756 
 
 CHAPTER IX. 
 Of Draining Swamps 757 
 
 CHAPTER X. 
 Of Excise and Taverns ; 761 
 
 CHAPTER XI. 
 Of Fugitives from Justice 780 
 
 CHAPTER XII. 
 Of Gaming, and Lottery Tickets 785 
 
 CHAPTER XIII. 
 Of Habitual Drunkards 787 
 
 CHAPTER XIV. 
 Of Hawkers and Pedlers 792 
 
XIV CONTENTS. 
 
 CHAPTEE XV. 
 
 Page. 
 Of Highways and Roads 795 
 
 1. Collection of fines for not working on highways 795 
 
 2. Re-assessment of damages for laying out highways 800 
 
 3. Removal of obstructions and encroachments from highways, 803 
 
 CHAPTER XVI. 
 
 Of Landlords and Tenants 810 
 
 1. Deserted premises 810 
 
 2. Special proceedings for re-entry 814 
 
 3. Summary proceedings to recover possession of demised 
 premises 814 
 
 (1.) Trial by jury 823 
 
 (2.) Staying proceedings 826 
 
 (3.) Certiorari ■; 828 
 
 (4.) Appeal to County Court 829 
 
 CHAPTER XVII. 
 Of Lunatics 832 
 
 CHAPTER XVIII. 
 Of Marriages 885 
 
 CHAPTER XIX. 
 Of Parents Absconding 838 
 
 CHAPTER XX. 
 Of Pawn-Brokers 841 
 
 CHAPTER XXI. 
 Of Unclaimed Baggage 843 
 
 CHAPTER XXIL 
 
 Of Miscellaneous Powers 844 
 
 1. Arbitrators 845 
 
 2. Depositions to be used in other States 845 
 
 3. Firemen 846 
 
 4. Firing of woods 846 
 
 5. Forcible entry and detainer 847 
 
 6. Justices of Sessions 847 
 
 7. I/imited partnerships 848 
 
 8. Racing 849 
 
 9. Removal of constables 850 
 
 10. Town auditors 850 
 
 11. Town meeting 853 
 
 12. Vacancies in town oiEces 853 
 
 13. Justice to act as Coroner 856 
 
 Index 857 
 
TABLE OF FORMS. 
 
 Form Page 
 
 1. Certificato of the election of a 
 
 Justice of the Peace 5 
 
 2. Supervisor's notice of drawing... 6 
 
 3. Certificate of the Drawing 7 
 
 4. Oath of office 9 
 
 PART I.— CIVIL CASES. 
 
 5. Consent to be guardian for infant 
 
 plaintiff. 153 
 
 6. Description of particular charac- 
 
 ter of plaintiff 157 
 
 7. Af&flavit for a long attachment 
 
 under the Revised Statutes 170 
 
 8. Affidavit for a long attachment 
 
 under the non-imprisonment act 171 
 
 9. Affidavit for an attachment 
 
 against a non-resident 171 
 
 10. Bond on all attachments, long 
 
 and short 172 
 
 11. Approval of Justice on the bond. 172 
 
 12. Retui*n on Summons 174 
 
 12. Summons in action for claim and 
 
 delivery of personal property .. 197 
 
 13. Affidavit on 198 
 
 14. Notice to constable 198 
 
 15. Undertaking 198 
 
 16. Justification of bail 199 
 
 17. Approval on 199 
 
 18. Return of constable 199 
 
 19. Return of constable under section 
 
 twelve 200 
 
 20. Notice of exception to sureties .. 200 
 
 21. Undertaking requiring return of 
 
 property 200 
 
 22. Affidavit of claim by third person. 201 
 
 23. Undertaking to constable on claim 
 
 of third person 201 
 
 24 Affidavit of sureties 201 
 
 25. Entry in Justice's docket 201 
 
 26. Consent to be guardian for infant 
 
 defendant 204 
 
 27. Demurrer to complaint 215 
 
 28. Demurrer to answer 215 
 
 29. Offer for judgment 216 
 
 30. Acceptance of offer .' 216 
 
 31. Answer, setting up plea of title. 243 
 
 32. Undertaking on plea of title .... 244 
 
 33. Bond for defendant on adjourn- 
 
 ment where he can be impri- 
 soned on execution 253 
 
 Porm Page 
 
 34. Bond for defendant on adjourn- 
 
 ment where he cannot be impri- 
 soned on execution 255 
 
 35. Affidavit of service of notice.... 263 
 
 36. Commission 265 
 
 37. Interrogatories and cross-inter- 
 
 rogatories 26G 
 
 38. Return to be endorsed on com- 
 
 mission 200 
 
 39. Subpoena 270 
 
 40. Minute of conviction of defaulting 
 
 witness 277 
 
 41. Execution against him for fine 
 
 and costs 278 
 
 42. Oath of witness upon the Gospels. 295 
 
 43. The same, not on the Gospels . .. 295 
 
 44. Affirmation of witness 296 
 
 45. Warrant of commitment against 
 
 witness who refuses to testify. . 298 
 
 46. Confession of judgment and affi- 
 
 davit 452 
 
 47. Entry in Justice's docket 460 
 
 48. Renewal of execution 477 
 
 49. Bond to indemnify constable , ... 488 
 
 50. Memorandum of sales of goods or 
 
 chattels 490 
 
 51. Notice of appeal in a civil action. 501 
 
 52. Undertaking 502 
 
 53. Justice's Return 504 
 
 II.— CRIMINAL CASES. 
 
 54. Warrant of arrest for contempt 
 
 of Court 527 
 
 55. Record of conviction therefor .... 528 
 
 56. Warrant of commitment therefor. 529 
 
 57. Complaint to obtain a search war- 
 
 rant 582 
 
 58. Search warrant 533 
 
 59. Oath of complainant, or of wit- 
 
 ness on complaint 539 
 
 60. Complaint for assault and battery 540 
 
 61. Complaint for grand or petit lar- 
 
 ceny 540 
 
 62. Complaint for murder ..- 541 
 
 63. Complaint for murder by poison- 
 
 ing 541 
 
 64. Complaint for murder by stabbing 541 
 05. Complaint for murder by shooting 541 
 66. Complaint for murder by cutting 
 
 throat 542 
 
XVI 
 
 TABLE OF FORMS. 
 
 Form 
 67> Complaint against an accessory 
 
 after the fact 542 
 
 68. Complaint for arson in the first 
 
 degree 542 
 
 69. Complaint for arson in the second 
 
 degree 542 
 
 70. Complaint for arson in the third 
 
 degree 543 
 
 71. Complaint for getting fire to a 
 
 crop of grain growing. .... .... 543 
 
 72. Complaint for manslaughter, in 
 
 killing another with an axe .... 543 
 
 73. Complaint for manslaughter, in 
 
 killing an unborn child, by 
 kicking its mother 543 
 
 74. Complaint for manslaughter, in 
 
 killing an unborn child, by ad* 
 ministering drugs, &c., to its 
 mother 544 
 
 75. Complaint for rape 544 
 
 76. Complaint for rape on a female 
 
 under ten years of age 544 
 
 77. Complaint for assault, with at- 
 
 tempt to commit a rape 544 
 
 78. Complaint for forcible abduction 
 
 of a woman, with intent to com- 
 pel her to marry, or prostitute 
 herself 545 
 
 79. Complaint for taking a female 
 
 under fourteen years of age 
 from her parent or guardian.. 545 
 
 80. Complaint for mayhem or maim- 
 
 ing 545 
 
 81. Complaint for child-stealing .... 546 
 
 82. Complaint for abandoning child . 546 
 
 83. Complaint for shooting, or at- 
 
 tempting to shoot at, with in- 
 tent to kill, rob, or maim 546 
 
 84. Complaint for assault with deadly 
 
 weapon, with intent to kill 546 
 
 85. Complaint for poisoning food.,.. 547 
 
 86. Complaint for poisoning well..., 547 
 
 87. Complaint for assault, with intent 
 
 to rob, or commit burglary .... 547 
 
 88. Complaint for burglary 548 
 
 89. Complaint for felony and burglary 
 
 in shop 548 
 
 90. Complaint for burglary in enter- 
 
 ing store 548 
 
 91. Complaint for constructive bur- 
 
 glary 549 
 
 92. Complaint for forgery 549 
 
 93. Complaint for passing, or offer- 
 
 ing to pass, counterfeit hank 
 notes ... 550 
 
 94. Complaint for altering or coun- 
 
 terfeiting bank notes 550 
 
 95. Complaint for obtaining property 
 
 by a false token, or by falsely 
 personating another 550 
 
 96. Complaint for obtaining money, 
 
 or property, by false pretences . 551 
 
 97. Complaint for robbery 551 
 
 98. Complaint for embezzlement .... 551 
 
 99. Complaint for receiving stolen 
 
 goods 552 
 
 100. Complaint for perjury 552 
 
 101. Complaint for bigamy 552 
 
 Form Page 
 
 102. Complaint for marrying the wife 
 
 of another.. 553 
 
 103. Complaint for malicious mischief. 553 
 
 104. Complaint for malicious trespass, 
 
 or for girdling trees 553 
 
 105. Complaint for procuring abortion. 553 
 
 106. Complaint for making an affray . 554 
 107* Complaint for cruelty to animals. 554 
 
 108. Complaint for a rout or riot 554 
 
 109. Complaint for selling unwhole- 
 
 some food 554 
 
 110. Complaint for disturbing a reli- 
 
 gious meeting 555 
 
 111. General form of warrant in a 
 
 criminal case 561 
 
 112. Warrant for assault and battery . 562 
 
 113. Warrant for grand or petit lar- 
 
 ceny 562 
 
 114. Form for backing or endorsing a 
 
 warrant 568 
 
 115. Warrant of commitment for fur- 
 
 ther examination 572 
 
 116. Prisoner's examination 577 
 
 117. Examination of the complainant, 
 
 and of the witness for both par- 
 ties 578 
 
 118. Warrant of commitment of a wit- 
 
 ness who refuses to enter into a 
 recognizance 580 
 
 119. Recognizance by a witness to ^re 
 
 evidence 582 
 
 120. Recognizance by a witness, with. 
 
 sureties 582 
 
 121. Recognizance by sureties for a 
 
 witness who is an infant or a 
 married woman . . . , 582 
 
 122. Warrant of commitment 607 
 
 123. Recognizance on giving bail. ■ . . . 627 
 
 124. Warrant to liberate a prisoner on 
 
 giving bail 628 
 
 125. Warrant of eommitment of pri- 
 
 soner to await trial by Court of 
 Special Sessions 636 
 
 126. Order to jailer to bring up pri- 
 
 soner for trial 636 
 
 127. Plea to the jurisdiction 637 
 
 128. Demurrer to the complaint 638 
 
 129. Plea in abatement 638 
 
 130. Special plea in bar 639 
 
 131. Venire 640 
 
 132. Subpoena 643 
 
 133. Oath to witness 643 
 
 134. Constable's oath, on retiring with 
 
 jury 645 
 
 135. Minutes of proceedings on trial. . 646 
 
 136. Certificate of conviction at Spe- 
 
 cial Sessions 647 
 
 137. Warrant of commitment, on con- 
 
 viction at Special Sessions 648 
 
 138. Acknowledgment of satisfaotion, 
 
 on the compromise of an offence. 664 
 
 139. Order superseding the commit- 
 
 ment of the prisoner 664 
 
 140. Order discharging the recogniz- 
 
 ances of the prisoner and the 
 witnesses. 664 
 
 141. Affidavit to obtain a certiorari on 
 
 appeal from Special Sessions. . . 668 
 
TABLE OF FORMS. 
 
 XVll 
 
 Atlii Page 
 
 142. Ebdorseikient on foregoing affida- 
 
 vit...; 670 
 
 143. Writ Of certiorari to remove con- 
 
 viction to county Sessions 670 
 
 14 1. Endorsement on the writ 670 
 
 145. Recognizance on appeal to county 
 
 Sessions 671 
 
 146. Complaint to obtain surety of the 
 
 peac6 673 
 
 147. Peace warrant 673 
 
 148. Recognizance to Iseep the peace . 674 
 
 149. Commitment for not finding sure- 
 
 ties 675 
 
 150. Warrant to discharge prisoner on 
 
 finding sureties 675 
 
 151. Affidavit to accompany account 
 
 fat fees in criminal cases. ...... 677 
 
 PART III.— SPECIAL PRO- 
 CEEDINGS. 
 
 152. Certificate of acknowledgment by 
 
 a party known to the officer .... 689 
 
 153. By a party, Where his identity is 
 
 proved to the officer 690 
 
 454. By husband and wife, both known 
 
 to the officer 690 
 
 155. By husband and wife, both proved 
 
 to the officer 690 
 
 156. By husband and wife — busband 
 
 knowti, and wife proved, to the 
 officer 691 
 
 157. By two husbands and their wives, 
 
 all known to the officer 691 
 
 158. By wife, in separate certificate . . 691 
 
 159. ^ two or more parties 692 
 
 160. By one of several parties 692 
 
 161. By an attoffley . . '. 692 
 
 162. By ah executor, or trustee 692 
 
 163. Certificate of proof by subscribing 
 
 witness known to the officer .... 692 
 
 164. By gabseribihg witness, where his 
 
 identity is proved to the officer . 693 
 
 165. By subscribing witness — grantors 
 
 residing in another State 693 
 
 166. The same, by subscribing witness 
 
 proved to the officer 693 
 
 167. By subscribing witness as to the 
 
 husband, and acknowledgment 
 by the wife, both being known 
 totbeofficer 694 
 
 168. By suUscribing witness as to the 
 
 h'usbaAcf, and acknowl'edgme'nt 
 by wife, both proved to the offi- 
 cer 694 
 
 169. By subscribing witness to a deed , 
 
 executed by an attorney 694 
 
 170. Proof of deedj by a religious cor- 
 
 poration..- 695 
 
 171. Satisfaction of mortgage, and 
 
 acknowtedgme'nt, by individual 
 known to the officer 695 
 
 172. 6ertiflcate of satisfaction of a 
 
 mortgage, to be' Written tlieife- 
 dn' 696 
 
 173. Satisfaction of i mortgigei by 
 
 tan execWor, ad'ministratot, or 
 tTUStele e t ....... . 696 
 
 B 
 
 Form 
 
 174. Satisfaction of a judgment in a 
 
 Justice's Court, where a tran- 
 script is filed in the county 
 clerk's office 696 
 
 175. Satisfaction of a judgment in a 
 
 Court of Record 696 
 
 176. Oath to be administered to a sub- 
 
 scribing witness 697 
 
 177. Oath to a witness proving the 
 
 identity of the parties, or of 
 the subscribing -fitness, to a 
 conveyance 697 
 
 178. Oath to a deponent 699 
 
 179. Apprentice's Indenture 709 
 
 180. Consent by father or mother .... 706 
 
 181. Justice's certificate, where the , 
 
 fa;ther does not give the consent 706 
 182- Consent of guardian 706 
 
 183. Cohsent by the Overseers of the 
 
 Poor, or two Justices of the 
 Peace of the town, or the County 
 Judge of the county, where the 
 infant resides 707 
 
 184. Complaint by master against ap- 
 
 prentice for refusing to serve . . 707 
 
 185. Warrant on the foregoing com- 
 
 plaint 707 
 
 186. Commitment of an apprentice re- 
 
 fusing to serve 708 
 
 187. Complaint to two Justides con- 
 
 cerning any misdemeanor or ill- 
 behavior of an apprentice 708 
 
 188. Warrant on' the foregoing com- 
 
 plaint 709 
 
 189. Commitment of an apprentice on 
 
 the foregoing complaint 709 
 
 190. Discharge of the apprentice frOm 
 
 his sei'vice, and of the master 
 from his obligations 710 
 
 191. Complaint by an apprentice to 
 
 two Justices, for the cruelty' or 
 misusage of his master, or his 
 refusal to furnish him with ne- 
 cessary provisions or clothing. . . 71ff 
 
 192. Summons on the foregoing com- 
 
 plaint 710 
 
 193. Discharge of an apprentice on the 
 
 foregoing Complaint 71! 
 
 194. Complaint by an a-pprentice 
 
 aigainst his master, whei'e mo- 
 ney has been paid or agreed to 
 be paid...... ......'. .... 711- 
 
 195. Summons on the foregoing com- 
 
 plaint 712 
 
 196. Recognizance of master and sure- 
 
 ty on the' foregoing complaint.. 7}2 
 
 197. Complaint by master against ap- 
 
 prentice refusing to serve, where 
 money has been paid, or agreed 
 to be paid 713 
 
 198. Summons On the foregoing com- 
 
 plaint 713 
 
 199. Recognizance of an ajtprentiCe ^ 
 
 and' surety on the' foregoing 
 complaint - • . . 715 
 
 200. Applicatioii of a Superintendent, 
 
 or Overseer, of th«r Poori in' a 
 case of bastaudy ..-.. .V. ..../. . 715 
 
XVlll 
 
 TABLE OF FORMS. 
 
 Form Page 
 
 201. Exnioination of the mother be- 
 
 fore birth 715 
 
 202. Examination after birth 716 
 
 203. Warrant to apprehend reputed 
 
 father 716 
 
 204. Endorsement on a warrant of ar- 
 
 rest to be executed in a foreign 
 ' county 716 
 
 205. EDdorsement by a Justice in a 
 
 foreign county 717 
 
 206. Bond to be taken by the Justice 
 
 before whoni the reputed father 
 
 is carried 718 
 
 207. Certificate to be endorsed on war- 
 
 rant 719 
 
 208. Subpoena in case of bastardy.... 720 
 
 209. Bond on adjournment 720 
 
 210. Order of filiation 721 
 
 211. Bond on order of filiation 723 
 
 212. Warrant to commit putative 
 
 la,ther 725 
 
 213. Warrant to commit a mother who 
 
 refuses to disclose the name of 
 the father 726 
 
 214. Summons where the mother has 
 
 property in her own right 727 
 
 215. Order to compel the mother to 
 
 pay for the support of the child. 728 
 
 216. Warrant to commit the mother.. 729 
 
 217. Bond by the mother of a bastard 
 
 to appear at the next Court of 
 Sessions 729 
 
 218. Order reducing the sum to be 
 
 paid by the father or mother of 
 a bastard child 730 
 
 219. Warrant to discharge putative 
 
 father 731 
 
 220. Warrant to seize the property of 
 
 a/bsconding father of bastard. . . 733 
 
 221. Bond to be given by party where 
 
 property has been seized 733 
 
 222. Order to discharge the warrant, 
 
 and to restore the property 734 
 
 223. Record of the conviction of a 
 
 vagrant 737 
 
 224. Warnint of commitment of a 
 
 vagrant 738 
 
 225. Warrant to arrest a person in 
 
 disguise f'39 
 
 226. Warrant to commit a child to the 
 
 county poor-house 739 
 
 227. Warrant to arrest a disorderly 
 
 person 741 
 
 228. Recognizance of a disorderly per- 
 
 son 741 
 
 229. Record of the conviction of a 
 
 disorderly person 742 
 
 230. Warrant to commit a disorderly 
 
 person 743 
 
 231. Warrant to commit a disorderly 
 
 person, after a recovery upon 
 his recognizance 744 
 
 232. Discharge of a disorderly person, 
 
 to be granted by any two Jus- 
 tices 745 
 
 233. Warrant to arrest a person for the 
 
 disturbance of a religious meet- 
 ing, &c 746 
 
 Form Page 
 
 234. Record of conviction for disturb- 
 
 ing a religious meeting, &c.,. . 747 
 
 235. Execution to collect penalty and 
 
 costs on such conviction 748 
 
 236. Certificate of such conviction.... 749 
 
 237. Security for the payment of pen- 
 
 alty and costs, upon conviction 
 for disturbing a religious meet- 
 ing 751 
 
 238. Warrant of commitment, on snch 
 
 conviction 751 
 
 239. Warrant to seize goods forfeited 
 
 by being exposed to sale on 
 Sunday 753 
 
 240. Warrant of arrest for profanity . 754 
 
 241. Security for the payment of the 
 
 penalty and costs, upon convic- 
 tion for profanity 754 
 
 242. Warrant of commitment, upon 
 
 conviction for profanity . .,^,.. 755 
 
 243. Order to kill a dangerous dog. ... 756 
 
 244. Summons for a jury to determine 
 
 on opening a ditch 758 
 
 245 . Oath to the jurors , 758 
 
 246. Inquisition 759 
 
 247. Petition of freeholders for a 
 
 license to sell spirituous liq[uor. 776 
 
 248. Proof of signatures 777 
 
 249. Affidavit on application to sell 
 
 intoxicating liquor 777 
 
 250. Bond for selling 773 
 
 251. Acknowledgment of bond . ...... 778 
 
 252. Justification of sureties. ......... 778 
 
 253. Approval of jjommissioners ...... 779 
 
 254. Bond of innkeeper 779 
 
 255. Warrant to commit a. fugitive 
 
 from justice 781 
 
 256. Bond by a fugitive from justice. . 781 
 
 257. Notice designating habitual 
 
 drunkards, &c 788 
 
 258. Kotice to Overseers by Justice. .. 788 
 
 259. Venire for a jury to try the fact 
 
 of habitual drunkenness. . .... 788 
 
 260. Juror's oath 789 
 
 261. Oath to witness 789 
 
 262. Execution agains-t the drunkard. 790 
 
 263. Execution against the Overseers. 790 
 
 264. Revocation by the Overseers, 
 
 where a drunkard reforms.... 791 
 
 265. Commitment of a hawker or ped- 
 
 ler for refusing to pay the pen- 
 alty for not showing his license. 793 
 
 266. Warrant to collect a penalty from 
 
 a hawker or pedler 794 
 
 267. Complaint against a person for 
 
 refusing to work on a highway. 796 
 
 268. Complaint against a person for 
 
 not furnishing a team 796 
 
 269. Summons for refusing to work on 
 
 a highvFay 797 
 
 270. Return of constable on serving 
 
 summons 798 
 
 271. Conviction endorsed on the com- 
 
 plaint 798 
 
 272. Warrant to collect a fine for not 
 
 working on a highway 799 
 
 273. Summons for a jury to re-assess 
 
 highway damages 801 
 
TABLE OF FORMS. 
 
 XIX 
 
 Form Page 
 
 274. Oath to the jurors 801 
 
 275. Oath to witnesses 801 
 
 276. Verdict of the jury 802 
 
 277. Certificate of the Justice 802 
 
 278. Precept to summon a jury, in 
 
 case of an encroachmex)t on a 
 highway 805 
 
 279. Oath to jurors 806 
 
 280. Oath to witnesses 806 
 
 281. Certificate of the jury 807 
 
 282. Warrant to collect costs of pro- 
 
 ceedings, upon an encroach- 
 ment on a highway 808 
 
 283. Certificate where no encroach- 
 
 ment is found 809 
 
 284:. Petition and affidavit, where de- 
 mised premises are deserted .... 811 
 
 285. Notice to a tenant who has de- 
 
 serted the demised premises .... 811 
 
 286 . Bond on appeal 812 
 
 287. Notice to landlord of the appeal. 813 
 
 288. Record of Justice, where premises 
 
 are deserted 813 
 
 289. Notice of intention to re-enter 
 
 demis ed premises 81 4 
 
 290. Notice requiring payment of rent, 
 
 or possession of demised pre- 
 mises 816 
 
 291. Affidavit to authorize the sum- 
 
 mary removal of a tenant 817 
 
 292. Summons to remove tenant hold- 
 
 ing- over after expiration of 
 . lease 819 
 
 293. Summons in case of tenancy at 
 
 will, or at sufferance, termin- 
 ated by notice 819 
 
 294. Summons to remove tenant for 
 
 non-payment of rent 820 
 
 295. Affidavit of service of summons.. 820 
 
 296. Warrant to put in possession, 
 
 where tenant holds over after 
 expiration of lease 821 
 
 297. Warrant to remove the tenant in 
 
 a case of a tenancy at will, or at 
 sufferance, terminated by notice. 822 
 
 298. Warrant to put in possession, on 
 
 default of payment of rent .... 822 
 
 Form Pago 
 
 299. Return of officer to warrant 823 
 
 300. Affidavit to obtain trial by jury, 
 
 in proceedings to remove atenant 824 
 
 301. Precept for a jury 824 
 
 302. Oath to jurors 825 
 
 303. Officer's oath to keep jury, after 
 
 evidence given 825 
 
 304. Bond to stay proceedings on a 
 
 warrant for non-payment of 
 rent 826 
 
 305. Security for rent, to stay proceed- 
 
 ings, where the tenant has taken 
 the benefit of an insolvent act.. 827 
 
 306. Affidavit to stay proceedings by 
 
 occupant of premises sold under 
 execution 828 
 
 307. Bond to stay proceedings, by the 
 
 same 823 
 
 308. Affidavit for appeal to County 
 
 Court, in proceedings to remove 
 
 a tenant 829 
 
 309. Notice of appeal 830 
 
 310. Undertaking on appeal 831 
 
 311. Warrant to confine a lunatic .... 833 
 
 312. Form of Marriage 836 
 
 313. Marriage certificate , 837 
 
 314. Justice's certificate 838 
 
 315. Warrant to seize the goods of an 
 
 absconding father, husband, or 
 mother 839 
 
 316. Bond to be given by party, where 
 
 property has been seized 840 
 
 317. Order to discharge the warrant, 
 
 and to restore the property .... 840 
 
 318. Bond of claimant of property 
 
 pledged with a pawn-broker . . . 842 
 
 319. Warrant to apprehend persons en- 
 
 gaged in racing 849 
 
 320. Recognizance by a person appre- 
 
 hended -849 
 
 321. Affidavit to attach to an account. 652 
 
 322. Certificate of town auditors 852 
 
 323. Abstract of claims audited by the 
 
 town auditors 852 
 
 324. Warrant appointing town officers. 854 
 
 325. Notice of acceptance of resigna- 
 
 tion of town officer 854 
 
THE 
 
 NEW YORK JUSTICE. 
 
 INTEODUCTION. 
 
 OF THE OFFICE OF JUSTICE OF THE PEACE. 
 
 The office of Justice of the Peace, besides being of great 
 importance in view of the magnitude of the interests upon 
 which he may be called to decide, is an ancient and an honor- 
 able one. Justices were iSrst nominated in England, in every 
 county, by William the Conqueror, in 1076. They were known 
 in English law, however, merely as Conservators of the Peace, 
 and were called Guardians or Wardens of the Peace, till 1361, 
 when the statute, 34 Edward IH., chapter 1, gave them the power 
 of trying felonies; and they were then dignified with the appel- 
 lation of Justices, which term had been applied to the English 
 judges ever since the Norman Conquest. (1 Black. Comm. 351.) 
 
 Justices of the Peace, in England, were appointed by special 
 commission, issued under the great seal, though there are some 
 officers, such as the Master of the Rolls, municipal authorities, 
 and others, who are Justices of the Peace by prescription, in 
 virtue of their other offices; and as it is usual to designate two 
 or more of the Justices named in the commission, as those with- 
 out whose presence no important business can be transacted, the 
 persons thus selected are called Justices of the quorum, frtm the 
 language of the commission^—" quorum aliquem vestrum, efe." 
 (1 Black. Oomm. 351; 3 Stejihen's Comm, 40.) The first judi- 
 cial proceedings in regard to persons accused of grave offences 
 may be instituted before them, and they are also clothed, by 
 
 various statutes, with power to try certain minor offences. In 
 • 1 
 
NEW YORK JUSTICE. 
 
 these respects, their powers, and those of Justices of the Peace 
 in the United States, are very similar. 
 
 In France, the different departments are divided into arron- 
 dissements, and the latter into cantons, each of which has its 
 Justicier de Paix, or Justice of the Peace, who possesses a limited 
 jurisdiction in the decision of cases where property is in dispute, 
 in the settlement of difficulties growing out of slander and libel, 
 and in making compromises and directing guardianships. This 
 officer has jurisdiction, also, of the lower grade of offences against 
 the police regulations. 
 
 In the United States, Justices of the Peace, in addition to their 
 common-law powers as Conservators of the Peace, generally 
 have jurisdiction in civil cases. Their civil jurisdiction is differ- 
 ent in the different States, but it is usually limited to actions for 
 the recovery of debts not exceeding a certain amount, or of dam- 
 ages for injuries to property, and to suits on promises, express 
 or implied, or for trespasses, where the title to real estate does 
 not come in question. (JJ. 8. Digest and Supplement, Title, 
 Justices of the Peace.) This jurisdiction, in view of a single case, 
 may appear to be of minor importance; but in the aggregate it ■ 
 is, of vast consequence, and the amount annually in controversy, 
 in the Justices' Courts of the State of New York alone, must 
 exceed ten millions of dollars. Their criminal jurisdiction has 
 been materially enlarged, in most of the States, by statute; and 
 they share their common-law pOwers in the conservation of the 
 peace, with municipal officers and the judges of the higher 
 courts. The tenure of the office is not the same in all the 
 States; but they are usually appointed by the executive author- 
 ity, or elected by the people in towns or cities. * 
 
 In New York, under the Colonial rule. Justices of the Peace 
 were appointed by the Governor of the Province. They were 
 empowered, by acts of the General Assembly, to try all cases to 
 the amount of £5, New York currency (except where the Crown 
 was concerned, or the title to lands came in question, and actions 
 of slander); but either party might demand a jury of six men. 
 Any party aggrieved by a judgment might remove the same, by 
 certiorari, to the Supreme Court. The Provincial Legislatm-e 
 also conferred extraordinary powers upon the Justices in regard 
 to certain offences. Any three Justices, one being of the quorum, 
 might try an offence under the degree of grand larceny, provided 
 
HISTORY OF THE OFFICE. 
 
 the offender did not find ,bail in forty-eight hours after being 
 taken into custody; and, in conjunction with five freeholders, 
 and without a grand or petit jury, they had power to proceed 
 against and try slaves, in, a summary way, in certain cases, and 
 to punish them with death. (1 Documentary History of New 
 York, 755, 772.) 
 
 The fii'st State Constitution, adoptied in 1777, provided for the 
 appointment of Justices of the Peace by the Council of Appoint- 
 ment, and new commissions were required to be issued to them 
 at least once in three years. {Arts, xxiii, xxviii.) Laws were 
 passed by the Legislature, in conformity with the Constitution, 
 directing the appointment and commissioning of fit and discreet 
 men, from time to time, as Justices to keep the Peace, in everjr 
 county" in the State. (2 R. L. 506.) The number of these offi- 
 cers was not limited till the act of 1818, by which the appoint- 
 ment of more than four Justices of the Peace in any town was 
 prohibited. [Laws of 1818, chap. 60.) 
 
 The (Constitution of 1821, adopted in 1822, directed that 
 Justices of the Peace should be nominated for the several towns 
 in each coilnty, by the Board of Supervisoiis and the County 
 Judges thereof — each body acting separately — and if their nom- 
 inations agreed, then the persons nominated were to be the Jus- 
 tices; but if they did not agree, then the Governor of the State 
 was authorized to select from the two lists of nominations, so 
 many Justices of the Peace as might be requisite to fill the 
 vacancies. {Art. iv., % 7.) The term of office was fixed by the 
 Constitution at four years, and the Legislature provided by stat- 
 ute for the time and details of the appointment, '{Laws Of 1822, 
 chap. 184.) This cumbersome mode of appointment was abol- 
 ished by an amendment to the Constitution adopted in 1826 
 {Amendment, No. 1), by which it was provided that Justices of 
 the Peace should be elected by ballot in the several towns, and 
 be divided into four classes, of one in each class, and hold thiir 
 offices fbr one, two, three, and four yeai-s, so that thereafter one 
 Justice should be annually elected in each town, 
 
 The Constitution of 1846, which' is now in force, provides 
 {Ah. 'vi., % 17), that tte electors of the several towns, shall, at 
 their annual town meeting, and in such maimer as the Legisla- 
 ture may direct, elect Justices of the Peace, whose term of office 
 shall be four years, and that their number and classification may 
 
NEW YORK JUSTICE. 
 
 be regulated by law. It is then provjded, by statute (1 R. 8. 
 110, § 35), that there shall be four Justices of the Peace in each 
 town; (except that in several towns — as, Hector, now in Schuy- 
 ler County; Niagara, Niagara County; Potsdam and Canton, 
 St. Lawrence County; Ellisburgh, Jefferson County; Lenox, 
 Madison County; Champlain and Beekmantown, Clinton County; 
 Skaneateles, Onondaga County; Bath, Steuben County; Har- 
 mony, Pomfret an^ Hanover, Chautauqua County; Schodack, 
 Rensselaer County; and Fort Ann and Granville, Washington 
 County — there are, by special statutes, five justices; and in 
 Brookhaven, Suffolk County, there are eight;) that they shall 
 be divided into four classes, one of whom shall be annually 
 elected; and that each Justice shall hold his office for four years, 
 except when elected to fill a vacancy, or on the erection of a 
 new town. The election must be by ballot (1 R. S. 343, § 2; 
 Laws of 1829, cjiap. 356, § 1; ex-parte QvacJcenbush, 2 Hill, 
 369), and every Justice must be an elector of the town for which 
 he is chosen. (1 B. S. 345, § 11.) 
 
 There are also Justices of the Peace in cities, for instance: 
 four in Buffalo (Laws of 1843, chap, 132), Schenectady {Laws 
 of 1848, c/iaj). 15o; id. 1862, chap. 385), and Utica [Laws of 
 1862, cha^). 18); three in each of the cities of Rochester (Laws 
 of 1850, chap. 262; Laws of 1862, chap.'132), Auburn {Laws 
 of 1848, chap. 106; Laws of 1859, chap. 431), and Syracuse 
 Laws (f 1847, chap, AT 5); and four in the city of Oswego 
 {Laws of 1848, chap. 116; Laws of 1860, chap. 463). These 
 Justices of the Peace have, as a general rule, the same power 
 and authority as Justices of the Peace in towns. But, where 
 there is, in any city or village, an officer known as a Police Jus- 
 tice, the Justices of the Peace, generally have jurisdiction only 
 in civil cases. The Police Justices generally have exclusive 
 criminal jurisdiction, and, in same cases, they have civil jurisdic- 
 tion also. It has been held that the Legislature has the consti- 
 tutional power, under the Constitution of 1846, to provide for 
 the appointment of a Police Justice in a village, with jurisdic- 
 tion of 9ivil actions {StU vs. Village of Coming, 15 JSfew York 
 R. 297). Reference must be had to the various special statutes 
 for the particul,ar provisions in regard to'these various officers. 
 It is Ijhe duty of the clerk of every town meeting, at which an 
 election for Justice of the Peape shall have been had, to trans- 
 
ELECTION OF JUSTICES. 5 
 
 niit to the clerk of his county, within ten days thereafter, a 
 certificate of the result of such election, under his hand, which 
 will be evidence of the facts therein certified [Laws of 1829, 
 chap. 356, § 2). 
 
 § 1. Certificate of the Election of a, Justice of the Peace. 
 County, 
 Town of 
 
 I, E. F., Clerk of the annual town meeting, held in the town 
 of aforesaid, on the day of instant, do hereby certify 
 that the following persons were chosen Justices of the Pe^e for 
 said town, at such town meeting, viz. : 
 G. H. for four years; 
 L. M. to fill the unexpired term of S. T. 
 Dated the day of 18 . 
 
 E. F., clerk of the annual town 
 meeting in the town of 
 
 o 
 
 After the canvass of the votes given at a town meeting is 
 completed, a statement of the result is required by law to be 
 entered at length, by the clerk of the meeting, in the minutes of 
 its proceedings, and that statement must be publicly read by him 
 to the meeting. Such reading is notice of the result of such 
 election to every person whose name has been entered on the 
 poll list as a voter. (1 R. 8. 344, \ 9.) But where the nameof 
 the person elected a Justice has. not been entered on the poll 
 list as a voter, it is the duty of the clerk of the town meeting 
 to transmit a notice of his election to such person, within ten 
 days after the town meeting, (id. § 10.) 
 
 When a new town is erected, an election for Justices of the 
 Peace therein must be held at the next general election there- 
 after, unless a special election is directed by law. {id. Ill, \ 37.) 
 If there be one or more Justices then residing in such new town, 
 they will be deemed Justices thereof, and will hold their offices 
 according to their respective classes; and only so many addi- 
 tional Justices are to be chosen as will be necessary to complete 
 the number of four for such town. (id. § 38.) After the elec- 
 tion of the Justices in such new town, the supervisor thereof, 
 within six days after the completion of the canvass by the 
 county canvassers, must give notice in writing, to the Justices 
 elected and to the town clerk, of the time and place where he 
 will meet them, to determine by lot the classes of such Justices, 
 
6 NEW YORK JUSTICE. 
 1 
 
 which notices must be served at least six days, and not more 
 than twelve, previous to the time appointed therein for such 
 meeting. {1 B. S.-Ul, §39.) 
 
 § 2. Supervisor's Notice of Drawing. 
 
 Sir: Please take notice, that I will meet the Justices elected 
 for the town of , and the town clerk of said town, at the 
 
 house of O. P., in said town, on the day of . instant, \or, 
 next] at , in the noon, to determine by lot the classes of 
 such Justices. 
 
 Da^d the day of , 18 . 
 
 E. F., Supervisor of the Town of 
 
 At the time and place appointed in the notice, the supervisor 
 and town clerk must cause to be written on separate pieces of 
 paper, as near alike as may be, the numbers one, two, three, fom-, 
 if there shall have beeii four justices elected. These pieces of 
 paper must then be rolled up as nearly alike as may be, and 
 deiposited in a box. Each one of the persons elected Justices 
 must then draw out one of the pieces of paper, and the number 
 written thereon will be the class in which he will serve, and he 
 will hold his office for such number of yeai^, either one, two, 
 three, or four, as corresponds with the number so drawn, (id. 
 § 40.) If there fehall have been less than four Justices chosen, 
 the pieces of paper must correspond with the numbers of the 
 classes vacant, and each person elected must draw one as before 
 mentioned, and will be classed and hold his office according to 
 the number drawn, {id. \ 41.) If any person elected a Justice 
 neglects to attend to such drawing, the supervisor must draw 
 for him. If the supervisor is absent from his town, or unable 
 to serve, or his office is vacant, the town clerk must give the 
 notice of the drawing, and perform all the duties enjoined on 
 the supervisor, {id. \ 42.) Duplicate certificates of such draw- 
 ing, and the result thereof, must be made and certified by the 
 supervisor and town clerk, or such one of them as attends the 
 same, oiie of which must be filed with the town clerk and the 
 other with the county clerk, and be recorded by them in the 
 books in which the canvasses of votes ai-e recorded. These cer- 
 tificd,tes are conclusive evidence of the respective classes to 
 which the Justices belong, {id. 112, § 43.) 
 
ELECTION OP JUSTICES. 
 
 § 3. Certificate of the Drawing. 
 County, ) gg. ' ' 
 Town of , 3 ■ 
 
 We, the Supervisor and Town Clerk of the Town of 
 aforesaid, do hereby certify that on the day of instant, 
 
 at the house of , in said town, a drawing was had in our 
 
 presence, according to statute, to determine by lot the respec- 
 tive classes of G. H., S. T., &c., &c., elected Justices of the 
 Peace for said town, at a general [or, special] election held 
 therein, on the day of last past; and that the following 
 is the result of such drawing: , 
 
 G. H. drew for the term of four years; 
 S. T. drew for the term of three years; 
 &G., &c. 
 Dated the day of , 18 . E; F., Supervisor, 
 
 E. F., Town.Clerk. 
 
 If, by the erection of a new town, or the annexing of a part 
 of one town to another, there should at any time be more than 
 four Justices residing in any town, they will, notwithstanding, 
 hold and exercise their offices in the town in which they reside, 
 according to their respective classes. But on the expiration of 
 the term of office of two or more Justices, bein^ in the same 
 class, only one person can be elected to fill the vacancy in such 
 class. (1 R. 8. 112, § 44.) Whenever, by the erection of a new 
 town, or the annexing of part of one town to another, any town 
 is deprived of one or more Justices, by reason of their residence 
 being, within the part set off, the inhabitants of such town must, 
 at the next general election, supply the vacancy so produced in 
 the classes to which such Justices belong; and if two or more 
 Justices be elected, the same prof codings must be. had, as before 
 directed, to determine their respective classes, {id. § 45.) 
 
 The Legislature has no powei; to shorten the constitutional 
 term of office of a Justice of the Peace, and this cannot be done 
 indirectly, by the erection or division of counties; so, if a town 
 be transferred from one county to another, or a new county be 
 made out of several towns, the Justices residing in those towns 
 Avill continue to hold their offices. {The People vs. Garcy, 6 
 Oowen, 642: 8. O. 9 id. 640.) A Justice is not a town officer. 
 He holds a, judicial office, and is as much above and beyond 
 legislative abolition as is that of a Justice of the Supreme 
 Court. {The People vs. Keller, 25 Barb. 421.) 
 
8 NEW -^ 
 
 NEW TfORK JUSTICE. 
 
 ; When two or more persons are elected to the office of Justice 
 of the Peace at any annual town meeting, one of whom shall be 
 an incumbent of the office for a term not then expired, such 
 incumbent will be deemed elected for the regular term of four 
 years, which will commence on the first day of January next 
 following such election. {Laws of 1833, chap. 270, § 1.) When, 
 at any such town meeting, except the first election in a new 
 town, two or more persons are to be elected to the office of 
 Justice of the Peace, it is lawful for each of the electors not 
 voting for a person who is then an incumbent of the office, to 
 designate on bis ballot the person intended for the regular term 
 of four years, which will commence on the fijst day of January 
 then next following, by the words, or words and figures, "long- 
 est term," "four years," or "4 years;" and the persons having 
 the greatest number of votes, without any reference to such 
 designation, will be deemed duly elected, (id. § 2.) The person 
 elected, and having the greatest number of such designations, 
 will be deemed elected for the regular term of four years, {id. 
 ^3.) The presiding officer or officers at any annual town meet- 
 ing at which Justices of the Peace are elected, must determine 
 whether any, and what person, in pursuance of the foregoing 
 provisions, has been elected for the regular term of four years; 
 ,which determination must be made at the same time, and with 
 the like effect, as he or they may determine what persons are 
 elected to the office; and such determination must be entered in 
 the minutes of the proceedings of the meeting, and must be 
 publicly read, and will be deemed notice of the result, as in 
 other cases. («^. § 4.) Where no person is elected for the reg- 
 ular term of four years, according to the foregoing provisions, 
 the classes of all the persons elected must be determined by lot, 
 within twelve days after their election, in the presence of the 
 supervisor and town clerk, in the manner before described; and 
 the same notice must be given, the same proceeding had, and the 
 same certificates of the result made and filed. {Lav)s of 1833, 
 chap. 270, § 5; Laws of 1830, chap. 290, § 2; 1 i?. 8. 112, \ 
 46.^ Where one person is elected for the regular term, in pur- 
 suance of the foregoing, provisions, the other person or persons 
 elected will be deemed elected to fill the existing vacancy or 
 vacancies; and if there be more than one existing vacancy, the 
 classes of the persons elected to fill the same must be deter- 
 
ELECTION OF JUSTICES. 9 
 
 mined by lot, within the time and in the manner before pre- 
 scribed. {Laws of 1833, chap. 270, § 6.) 
 
 Persons elected Justices of the Peace, except it be tp fill 
 existing vacancies, enter upon the duties of their respective 
 oiEces, on the first day of January next succeeding their elec- 
 tion. {Laws of 1829, chap. 356, ^ 3.) If elected' to supply a 
 vacancy or vacancies at the time existing, or in any new town, 
 they may take the oath of office, and forthwith enter upon the 
 duties thereof {Laivs of 1830, chap. 290, § 1.) « 
 
 Previous to the act of 1849, {Laws of 1849, chap. 28), there 
 was no provision made by law for filling vacancies in the office 
 of Justice of the Peace, except at the annual town meeting. 
 Since that statute was passed, the power to appoint to fill a 
 vacancy was vested in the governor, until the Laws of 1859, 
 chapter 476, provided the vacancy to be filled by the town offi- 
 cers; and the appointee holds office, not until the next annual 
 town meeting, but until the commencement of the political 
 year next succeeding the :^rst annual election, after the happen- 
 pening of the vacancy, at which the officer could be by law 
 elected. {People vs. Keller, 25 Barb. 421.) If a person be 
 elected to fill a vacancy occurring before the expiration of a 
 full term, he can hold only for the residue of the unexpired 
 term. {Constitviion of 1846, Art. vi., sec. 17.) 
 
 Before entering upon the duties of his office, a Justice of the 
 Peace must take and subscribe the constitutional oath or affirm- 
 ation {id. Art. xii.; 1 H. S. 119, § 20), before the clerk of the 
 county for -which he is elected. This may be done at ajiy time 
 after his election, and before the fifteenth day of January next 
 succeeding. (1 H. S. 119,, § 23.) In some instances, however, 
 a different time is prescribed by special statute. 
 
 § 4. Oaih of Office. 
 
 I do solemnly swear, [or, affirm,] that I will support the Con- 
 stitution of the United States, and the Constitution of the State 
 of New York, and that I will faithfully discharge the duties of 
 the office of Justice of the Peace according to the best of my 
 ability. 
 
 Sworn and subscribed, this day ) P H 
 
 of , 18 , before me, . ) 
 
 P. Y., Clerk of the county of 
 
10 . NBW YORK JUSTICE. 
 
 The oath of office of a Justice of the Peace, duly certified by 
 the county clerk, must be deposited in the office of the .county 
 clerk (except where a different time is prescribed by special 
 statute), within fifteen days after he is notified of his election or 
 appointment (in case he is elected to supply an existing vacancy), 
 or within fifteen days after the commencement of his term of 
 office, (in. S. 119, §§ 21, 24.) La some places, by special stat- 
 ute. Justices of the Peace are required to give bonds before 
 enteiring on the duties of their offices, and, unless otherwise 
 specially provided, the bond must be filed in the office of the 
 county clerk within the time before prescribed for giving the 
 oath of office, (id. 120, § 26.) In case the Justice neglects to 
 file his oath of office or bond with the county clerk, within the 
 time required by law, the county clerk must immediately give 
 notice of such neglect to the supervisor of the town for which 
 the Justice was elected, (id. § 27.) 
 
 A Justice who executes any of the duties or functions of his 
 office, without having taken and subscribed the oath of office 
 required by law, or, when required, without having executed 
 and filed in the proper office the bond required by law, vidll 
 forfeit his office, ahd be deemed guilty of a misdemeanor, pun- 
 ishable by fine or imprisonment, (id. 121, § 31.) But, not^vith- 
 standing the omission to take the oath, he will be a Justice de 
 facto until the forfeiture is judicially declared; and his acts as 
 such, so far as they relate to the public, or to third persons, 
 will be valid. (People vs. Oovert, 1 Hill, 674/ People vs. 
 Stevens, b id. 616; People vs. Hopson, 1 Denio, 574,-*FFee^.s 
 vs. Ellis, 2 Bar., 320.) And in several cases where the taking 
 the oath' has been inadvertently omitted, special statutes have 
 been passed, giving the Justice a further time therefor, and con- 
 firming his intermediate acts. The title of a Justice to his office 
 cannot be questioned except by indictment for the misdemeanor, 
 qiix) warranto, or other proceedings to remove him, or in an 
 action by him for his fees. (People vs. Hopson, 1 Denio, 575; 
 Weeks vs. Ellis, 2 Barb. 320.) 
 
 The office of a Justice of the Peace will become vacant before 
 the expiration of his term, on the happening of either of the 
 following events (1 R. 8. 122, § 34): 
 
 1. His death. 
 
 2. His resignation. 
 
JUSTICES IN CITIES. 11 
 
 3. His removal from office. 
 
 4. His ceasing to be an inhabitant of the town for which he 
 was elected, except in the case of the erection of a new town, or 
 the annexing of a part of one town to another. (1 R. S. 
 112, § 44.) 
 
 5. Hjs conviction of an infamous crime, which includes every 
 offence punishable with death, or by imprisonment in a State 
 prison (2 R. 8. 702, § 31), or of any oifence involving a violation 
 of his official oath, such as treason, or malfeasance in offices 
 
 6. His refusal or neglect to take the oath of office within the 
 time required by law, or to give or renew any bond, within the 
 time prescribed by law. 
 
 7. The decision of a competent tribunal, declaring his election 
 void. 
 
 A resignation of a Justice of the Peace may be made to the 
 Supervisor of his town. (1 R. 8. 121, ^ 33, siibd. 5.) ■ 
 
 The Constitution of 1846 provides that Justices of the Peace 
 may be removed after due notice, and an opportunity of being 
 heard in their defence, by such county, city, or State courts, as 
 may be prescribed by law, for causes to be assigned in the order 
 of removal (^Art. vi., sec. 17); and the Legislature have pro- 
 vided, in accordance with this clause of the Constitution, that 
 such removal may be made by the Supreme Court, at day gen- 
 eral term thereof. (Laws of 1847, chap. 280, § 25.) The causes 
 of removal must be assigned by the Court in writing, and be 
 filed with the clerk thereof. (1 R. 8. Ill, § 36.) 
 
 Besides the Justices elected in the several towns in the State, 
 there are other Justices in some of the cities, towns and villageSj 
 some o^ whom are chosen in a different manner, and hold their 
 offices by a different tenure; the Constitution of 1846 authoriz-, 
 ing such officers to be created by law, and to be elected at such 
 times and in such manner as the Legislature may direct. '{Art. 
 vi., sec. 18.) Of this character are the Justices of the Marine 
 Court in the city of New York, the Justices of the District 
 Courts in the city of New York, the Justices of the Justices' 
 Courts in the cities of Albany and Troy, and the Police Justices 
 in certain cities, towns and villages. These last named officers 
 will be specially treated of hereafter. {Part II., Chap. I.) 
 
 The Marine Court of the city of New York is a Justices' 
 Court. {Matter of Philip Walker, 3 Bard. 162.) The Jus- 
 
12 NEW YORK JUSTICE. 
 
 tices thereof, who are three in number, are chosen by the elec- 
 tors of the city at a general election, and hold their offices for 
 six years, one being elected every two years. The clerk of the 
 Court is appointed by the supervisors of the city and county, and 
 holds his office for four years. The Justices and clerk receive 
 each an annual compensation, fixed by the supervisors, which can- 
 not be diminished during their term of office, and is in lieu of 
 all fees and pijrquisites. {Laws of 1852, chap. 389, §§ 1 to 5.) 
 
 The city of New York is divided into eight judicial districts, 
 in each of which there is elected, by the qualified electors there- 
 of at the charter election, a Justice to hold the District Court in 
 the district, (id. chap. 324; Laws of 1857, chap. 344/ and 
 Laws of 1865, chap. 688.) They hold their offices for six years, 
 commencing on the first day of January next after their election. 
 {Laws of 1851, chap. 514, ^ 7.) Each District Court has a 
 clerk; appointed by the mayor and board of aldermen, who 
 holds his office for four years, {id. chap. 147,- Laws of 1855, 
 chap. 293.) The Justices and clerk receive each an annual com- 
 pensation, fixed by the board of supervisors, which camiot be 
 increased or diminished during their term of office. The Justi- 
 ces can receive no oth^r fees or perquisites whatever to their 
 own use by virtue of their offices. {Laws of 1851, chap. 514.) 
 
 The p'owers of these courts and the course of practice in them, 
 has lately been remodeled by a special statute {Laws of 1857, 
 chap. 344), which prescribes in detail the proceedings which 
 shall be had, and abrogates all former laws providing for any 
 case provided for in the act. In so far as under that statute the 
 law governing the District Courts of the city differs from that 
 which govern Justices of the Peace, under the general' law of 
 the State, the reader is referred to the act itself. The details 
 of its provisions are omitted from this work. ' 
 
 Three Justices of the Peace are elected in the city of Albany, 
 who hold their offices for three years, and until their successors 
 are duly chosen and qualified, one being elected each year. 
 Notice of the election of such Justices is given in the same 
 manner as is provided by law in regard to other officers. Two 
 persons elected are designated Police Justices of the city, one 
 being elected biennially, and hold their offices for four years 
 respectively. 
 
 In the city of Poughlieepsie two Justices of the Peace are 
 
JUSTICES IN CITIES. 13 
 
 elected by the city at large. They hold office for four years. 
 {Laws of 1854, chap. 90; Laws of 1858, chap. 82.) They have 
 in general the power, authority, and jurisdiction, and are enti- 
 tled to the fees and compensation of Justices of the Peace in 
 towns; and the laws applicable to Justices of the Peace in towns 
 apply to these two Justices. They have also the powers of com- 
 missioner of deeds. Appeals from their judgments may be 
 taken to the County Court. The jurisdiction of all criminal 
 cases is, however, conferred upon the Recorder; though, in case 
 of his sickness, absence, or inability, either of the Justices of the 
 Peace of the city may act in his stead. 
 
 The Justices' Court of the city of Troy consists of three Jus- 
 tices, elected by the people, who hold their offices for three years, 
 one being elected every year. They are Justices of the Peace 
 for the county of Rensselaer {Laws of 1844, chap. 198; Laws 
 of 1848, chaps. 56, 113), and have power to hold a Court in 
 said city, called "The Justices' Court of the city of Troy." 
 It must proceed in all respects in like manner as a single Jus- 
 tice, except when otherwise provided in the special act estab- 
 lishing it. {Laws of 1834, chap. 271, § 3.) 
 
 In the city of Hudson there is one Justice of the Peace. He 
 is elected in the same manner with the Mayor, and holds office 
 for four years. He has the same civil jurisdiction with Justices 
 of the Peace in towns, but no criminal jurisdiction. He is, by 
 virtue of his office, commissioner of deeds for the city of Hudson. 
 In case of his inability to act, it is the duty of the recorder to 
 act in his place. {Laws of 1854, chap. 179; Laws of 1857, 
 chap. 559; Laws of 1858, chap. 6; Laws of 1861, chap. 205; 
 Laws of 1864, chap. 289.) 
 
 The Justices chosen under these special laws must, of course, 
 take the oath of office before entering upon their official duties. 
 {Constitution of 1846, Art. xii.) 
 
PART I. 
 
 OF THE CIVIL JUEISDICT^ION OF JUSTICES OF 
 THE PEACE. 
 
PART I. 
 
 OF THE CIVIL JURISDICTION OF JUSTICES OF THE PEACE. 
 
 CHAPTER I. 
 
 OF THE NATURE AND EXTENT OF THE JUEISDICTION. 
 
 Jurisdiction, in tjie general sense of the term, is the power to 
 make and declare the law, or the right to exercise authority, 
 {BurrilVs Law Dictionary, Title, Jurisdiction.) As applied 
 to the judiciary department, it is the right of administering 
 justice according to, and through the laws; or, as defined by 
 the late Mr. Justice Baldwin, of the Supreme Court of the 
 United States, it is " the power to hear and determine a cause." 
 (United States vs. Arredondo, 6 Peters, 691, 709.) 
 
 The Jurisdiction of Justices of the Peace in the State of New 
 York is two-fold, civil and criminal, except that in the cities and 
 larger towns the authority is generally divided — one set of 
 officers exercising the civil jurisdiction, and another, who are 
 called Police Justices, have cognizance of criminal^ proceedings. 
 In the first part of this work, the civil jurisdiction of Justices 
 of the Peace will be considered, and, in the present chapter, the 
 general nature and extent of that jurisdiction. 
 
 There are two classes of courts in this State — ^those of general 
 jurisdiction and those of special or limited jurisdiction. The 
 court held by a Justice of the Peace is called a Justice's Court, 
 and is one of limited jurisdiction. But, though comparatively 
 the feeblest of our tribunals, it comes home, perhaps, nearest of 
 all, to the people, and they are deeply interested in the proper 
 administration of the law, by its officers. Although its deci. 
 sions are not final, aiid it is governed and directed wholly by the 
 2 
 
18 NEW YORK JUSTICE. 
 
 statute from which its powers are derived, and to which they 
 are held in subordination, yet the authority it-wields may be an 
 instrument of great good or an engine of oppression. Its pro- 
 ceedings are not conducted at a distance, but in the very locality 
 where the suitors reside, and where the difficulties and disputes 
 brought before it for adjudication have originated. Its judg- 
 ments are not pronounced with the imposing formalities of 
 higher judicatories; yet they affect most nearly the interests and 
 relations of neighbors and friends. In a word, all who are con- 
 cerned in its determinations can see the manner in which its 
 functions are exercised, and are thus enabled the better to com- 
 prehend its decisions and mandates. 
 
 There is a wide distinction between courts of general jmis- 
 diction and those of limited jurisdiction. Every intendment of 
 law is in favor of the former, and they are presumed to have 
 jurisdiction until the contrary appears. But there is no pre- 
 sumption in favor of courts of limited jurisdiction, unless it be 
 the general one, that public officers are presumed to do their 
 4uty (Weaver vs. Devendorf, 3 Denio, 119); and the party 
 claiming any benefit, right, or exemption, under or by virtue of 
 the proceedings of any such court, must show, affirmatively, 
 that it had jurisdiction. (15 John. 141; 19 id. 33, 34, 40; Ad- 
 kins vs. Brewer, 3 Qow. 208.) Its authority, and the facts which 
 gave it jurisdiction, must clearly appear. (6 Oow. 221; 1 Hill, 
 130; 4 id. 76; 7 id. 35, 40; Corwin vs. Mefrritt, 3 Barh. 341.) 
 Accordingly, it is a principle of law, of universal force, except 
 where modified by special Statute, that when the proceedings of 
 a court of limited jurisdiction are pleaded, it is necessary to state 
 sufficient facts to show its jurisdiction, and to prove those facts 
 on the trial. (7 John. 78, 79; 6 Cow. 236; 8tryker vs. Kelly, 
 7 Hill, 24.) Where the judgment of an inferior court is 
 pleaded, its authority to render the judgment, both as to subject 
 matter and person, must be shown. Its proceedings need not, 
 however, be set forth in full, but sufficiently so to show the 
 jurisdiction. (6 Wend. 438; 5 Hill, 327; 6 id. 311; 7 id. 39; 
 1 Denio, 592; Turner vs. Roby, 3 Com. 193.) The only 
 exception is where an action is brought on a judgment for costs, 
 rendered against a plaintiff in a previous suit; it being unneces- 
 sary in such case to aver that the cause of the action in the prior 
 suit was within the jurisdiction of the court. {Turner vs. Roby, 
 
NATURE OF JURISDICTION. 19 
 
 3 Com. 193.) Where certain facts are necessary to be proved, 
 in order to confer jurisdiction on a court or officer of special or 
 limited jurisdiction, before process can issue, the process will be 
 absolutely void unless proofs are furnished which have a legal 
 tendency to make out a proper case. (9 Wlieat. 541; Saples vs. 
 Fairchild, 3 Com. 41.) And if the record of an inferior court 
 omits to state thefacts necessary to give jurisdiction, and they 
 are not shown otherwise, it will iiot be evidence for any purpose. 
 (8 Cow. 361,^70; 5 Wend. 292; Denning \s. Oorwin, 11 id. 
 647; but see Sheldon vs. Wright, 1 8eld. 497.) 
 
 In this State, however, the stringency of the foregoing rule 
 has been somewhat relaxed, and it is not now necessary, in 
 pleading a judgment, or other determination, of a court or officer 
 of special jurisdiction, to state the facts conferring jurisdiction, 
 but such judgment or determination may be stated to have been 
 duly given or made; and if this allegation be controverted, the 
 party pleading will be bound to establish on the trial the facts 
 conferring jurisdiction. [Code, \ 161.) This provision is, how- 
 ever not made applicable to pleadings in Justices' Com-ts. On 
 the contrary, such courts are expressly excluded from its oper- 
 ation, {id. § 8; Post, part I. chap. IX.) 
 
 Jurisdiction cannot be acquired by an officer, by his merely 
 deciding that he has it (19 John. 40; 3 Cow. 209; 5 Barb. 
 607; Harrington vs. The People, 6 id. 607, 613); or by his 
 falsely alleging the existence of facts on which jurisdiction 
 depends. {People vs. Cassels, 5 Hill, 168.) Without it, the 
 proceedings .of no court or officer have any validity whatsoever. 
 Where there is a clear want of jurisdiction, in any court, its 
 judgment is utterly void and of no effisct. (15 John. 140; 19 
 id. 162, 164; 4 Cow. 292; 5 Wend. 148; Shumway vs. Still- 
 man, 6 id. 447.) Whether a court be of general or of limited 
 jurisdiction, if it takes cognizance of a case, without having 
 jurisdiction of the parties and of the subject matter, its proceed- 
 ings are wholly void; and in the case of a court of limited juris- 
 diction, like that of a Justice of the Peace, the magistrate who 
 attempts to enforce a judgment, founded on any such void pro- 
 ceedings, is a trespasser. (19 John. 40, 41; Adhins vs. Brewer, 
 3 Cow. 209.) So carefully does the law protect the citizen 
 from the consequences of the exercise of an unwarranted juris- 
 diction, that an inferior court, no matter bow special or limited 
 
20 NEW YORK JUSTICE. 
 
 its own jurisdiction may be, can inquire into the jurisdiction of 
 a superior court, in all cases where its proceedings are relied on 
 by tjie party claiming the benefit of the same. (1 Hill, 130; 5 
 id. 285; Doty vs. Brown, 4 Howard's Pr. Rep. 429.) Courts 
 of inferior jurisdiction are confined strictly to the authority 
 given them, and can take nothing by implication. {Jones vs. 
 Reed, 1 Johnson's Oases,, 20; Wells vs. JSFewJcirJc, id. 228.) 
 Their jurisdiction is never presumed, but must always be proved. 
 (Bloon vs. Burdick, 1 Hill, 130.) Consent, even, will not give 
 jurisdiction as to the subject matter of a suit, though it will 
 give jurisdiction in respect of parties. (12 John. 2d>5; 14, id. 
 432; 17 id. 63; 3 Cow. 206; 1 Wend. 210; Onderdonh vs. 
 Ranlett, 3 Hill, 323.) 
 
 It is because jurisdiction is the essential element of the right- 
 fill exercise of authority, that an objection to the jurisdiction of 
 a court or officer is not waived by an answer omitting to raise 
 it [Cornell vs. Smith, 2 8and...22Qi); and the want of jurisdic- 
 tion in tribunals of special and limited jurisdiction can always 
 be shown. {Harrington vs. People, 6 Barb. 607.) 
 
 But when jurisdiction is once gained, it will not be lost by any 
 subsequent irregularity in the proceedings; and every presump- 
 tion is in favor of their regularity where jurisdiction has been 
 actually acquired. (8 Cow. 137, 187; 3 Denio, 168; Wesson vs. 
 Chamberlain, 6 Barb. 621.) Jurisdiction, too, depends on the 
 state of things at the time of the commencement of a suit or 
 proceeding, and if the circumstances are then such as to give 
 jurisdiction, ^ it cannot be' ousted by any subsequent event. 
 {Mollan V. Torrance, 9 Wheat. 537.) A change in the condi- 
 tion of the parties, after the commencement of a suit, may work 
 an abatement; but a defendant cannot, by any voluntary act, 
 as by accepting the office of consul after the commencement of 
 an action in a State court, oust the court of the jurisdiction 
 which it originally had. {Koppel vs. Heinnchs, 1 Barb. 449.) 
 
 Though jurisdiction is of so much importance that without it 
 the acts and proceedings of courts and officers are absolutely 
 void, it is not a shelter for wrong, nor will the possession of it 
 excuse the errors that may be committed in exercising it. 
 "Where, however, an inferior court has jm-isdictioii, but errs in 
 the exercise of it, its proceedings are not void, but voidable 
 only; that is, they are valid until reversed. {Cuningham v. 
 
EXTENT OF JTJTilSMCTION. 
 
 JBucklin, 8 Oovj. 187.) If reversed, then they become void; 
 but if not appealed from and reversed, they remain valid. 
 
 The limited jurisdiction of courts held by Justices of the Peace 
 is entirely created by statute, and beyond the powers delegated 
 to them they have no authority whatever. They can tak(^ 
 nothing by implication, and if they act in any matter over which 
 the statute has not given them jurisdiction, their proceedings are 
 utterly void. (1 Johnson's Cases, 20, 228; 1 Caines, 191; 11 
 John, lib; 17 id. 145; Adkins vs. Brewer, 3 Cow. 209.) 
 Parties cannot confer upon a Justice's Court jurisdiction in an 
 action of which the statute gives it no cognizance ; and if an action 
 for slander, libel, or assault and battery, be tried in such court, 
 the proceedings will be void, even though the parties appeai- 
 and consent to go to trial. {Onderdonh vs. Ranlett, 3 Hill, 323.) 
 
 Every Justice of the Peace, elected in any town in this State, 
 is authorized by statute to hold a court for the trial of certain 
 specified actions, and to hear, try, and determine the same, 
 according to law and equity; and for that purpose, where no 
 special provision is otherwise made by law, such court is vestetl 
 with all the necessary powers which are possessed by courts of 
 record in this State. (2 R. S. 225, § 1; Brace v. Benson, Id 
 Wend. 213.) The Justices of the District Courts in the city of 
 New York, of the Marine Court in the city of New York, and of 
 the Justices' Courts in the cities of Albany and Troy, are also 
 authorized to hold courts in their respective cities, and posses.-:, 
 similar powers. (Laws of 1852, chap. 324; id. chap. 389; 2 I'. 
 L. 342; Laws of 1848, chap. 70; Laws of 1844, chap. 198: 
 Laws of 1848, chaps. 56, 113.) The jurisdiction, as respect- 
 parties, given to courts held by Justices, is acquired by thi' 
 service of process, or by voluntary appearance and agreemer^" 
 of the parties. (2 R. 8. 227, ^ 11; Cornell vs. Barnes, 7 
 Hill,?>b. '' i 
 
 Justices of the Peace must reside in the town for which thej- 
 were chosen, and they cannot try a civil cause in any other towi , 
 except in cases otherwise provided for by law. (1 R. S. 102, ^ 
 12.) In all other respects, except in the trial of a civil cause, 
 the territorial jurisdiction of a Justice is co-extensive with his 
 county. (1 Cow. 550; People vs. Oarey, 6 id. 642.) He may 
 issue process in any part of his county, but it must be return- 
 able in the town in which he resides; and it may be served in 
 
22 NEW YORK JUSTICE. 
 
 ^any part of the county, but not in a foreigii county {Guvnsey v. 
 Lovell, 9 Wend. 319, 322), except in the case of a subpoena, 
 which may be served in an adjoining county. (2 B. S. 240, § 
 80.) As we have seen, the office of a Justice is not vacated in 
 consequence of any change in his territorial jurisdiction, by the 
 erection of a new town, or the annexing of a part of one town 
 to another, or by transferring a town from one county to 
 another. (Ante, pp. 5, 7, 8.) 
 
 In addition to the requirements of the statute in regard to the 
 residence of a Justice, and to the place where civil causes brought 
 before him must be tried, it is necessary, in order to give him 
 jurisdiction in any cause, that the parties thereto should be 
 proper ones, and that the action should be cognizable before a 
 Justice's Court. These subjects, however, will be hereafter con- 
 sidered. (Post, part I. chaps. II. and V.) It need only be 
 remarked here, that unless there be proper parties, and a proper 
 cause, a Justice has no jurisdiction. Process issued by him, 
 requiring the defendant named therein to answer in an action of 
 slander, libel, or assault and battery, is utterly void. Or, if 
 the amount claimed in the pij'ocess exceeds his jurisdiction, he 
 haa no jurisdiction of the case, and any judgment he rMiders is 
 void. (9 John. 366; 6 HtU, 631; Tiffany v. Gilbert, 4 Barb. 
 323.) Where, however, the process claimed " one hundred 
 dollars and over," it was held that the words "and over " were 
 void for uncertainty, and that the process was good. {^Rock- 
 well vs. Ferine, 5 Barb. 573.) 
 
 A Justice may disqualify himself, by his own act, from exer- 
 cising civil jurisdiction in certain cases; and in others, he may 
 
 . be disqualified because of his relationship to the parties, or on 
 
 'the ground of interest. 
 
 No Justice of the Peace, becoming, or being an inn-holder or 
 tavern-keeper, in fact, has any power or jurisdiction imder the 
 provisions of title four of the second chapter of the third part 
 of the Eevised Statutes, which relates to courts held by Jus- 
 tices of the Peace; but if a judgment has been actually ren- 
 dered before a Justice, before he becomes so disqualified, he 
 may issue execution thereupon. (2 It. S. 226, § 6; Laws of 
 1846, chap. 140; Mice vs. Milks, 7 Barb. 337.) But this dis- 
 qualification extends only to the trial of suits between party 
 and party, and has no reference whatever to the jurisdiction of 
 
DISQUALIFICATIONS. 23 
 
 a Justice of the Peace as a criminal magistrate or conservator 
 of the peace, nor to any other powers conferred upon him by 
 other statutes; and it has been held that a Justice of the 
 Peace is not disqualified from entertaining proceedings against 
 a person for refusing to work upon a highway, on the com- 
 plaint of an overseer of highways, although such Justice was, 
 at the time of his election, and when the proceedings were had 
 before him, a tavern-keeper. [Rice vs. Milks, 7 Barb. 337.) 
 If a Justice keeps a tavern without having a license, the dis- 
 qualification still exists. {Qlayton vs. Per Dun, 13 John. 218.) 
 
 In regard to interest and relationship, the statute provides 
 that no judge of any court can sit as such, in any cause to which 
 he is a party, or in which he is interested, or in which he 
 would be excluded from being a juror by reason of consan- 
 guinity or affinity to either of the parties. (2 R. 8. 275, § 2.) 
 This provision applies to a Justice of the Peace, and is impera- 
 tive. He cannot sit in any such cause, and if he does, his act,s 
 will be void, and any judgment rendered by him will also be 
 void. (Baldwin vs. McJrthur, n Barb. 414; 17 Johns. 13'6; 
 21 Wend. 63.) 
 
 Eelationship is very properly a disqualifying circumstance, 
 and the consent of both of the parties to an action will not re- 
 move this disqualification, where it exists; partiality and bias 
 being presumed from relationship. (Oakley vs. Aspinwall, 'A 
 Corns. 550.) Where a Justice, through inadvertence, or igno- 
 rance of the fact, has entertained a cause, one of the parties 
 to which is related to him, a due regard- for the sanctity of jus- 
 tice, and respect for his own character and position, should 
 prompt him to dismiss it for want of jurisdiction the momer.' 
 he discovers.the relationship. He ought not to wait to be remindci I 
 of the disability, but should suggest it himself, if aware of th;' 
 fact, as must generally be the case, and promptly withdraw from 
 the cause. (Edwards vs. Russell, 21 Wend. 63.) No other 
 course is compatible with dignity or self-respect. Where a 
 cause is dismissed on account of his relationship to one of the 
 parties, he cannot even render a judgment for costs. (Foot vs. 
 Morgan, 1 Hill, 654; Hill & B. Sujpp., 239.) He is divested 
 of his jurisdiction at once, and has no authority whatever to act 
 in the cause. 
 
 As to the degree of relationship, it has been said that it should 
 
22 NEW YORK JUSTICE. 
 
 any pai-t of the county, but not in a foreign county {Guvnsey v. 
 Lovell, 9 Wend. 319, 322), except in the case of a subpoena, 
 which may be served in an adjoining county. (2 R. 8. 240, § 
 80.) As we have seen, the office of a Justice is not vacated in 
 consequence of any change in his territorial jm-isdiction, by the 
 erection of a new town, or the annexing of a part of one town 
 to another, or by transferring a town from one county to 
 another. (Ante, pp. 5, 7, 8.) 
 
 In addition to the requirements of the statute in regard to the 
 residence of a Justice, and to the place where civil causes brought 
 before him must be tried, it is necessary, in order to give him 
 jurisdiction in any cause, that the parties thereto should be 
 proper ones, and that the action should be cognizable before a 
 Justice's Court. These subjects, however, will be hereafter con- 
 sidered. {Post, part I. chaps. II. and F.) It need only be 
 remarked here, that unless there be proper parties, and a proper 
 cause, a Justice has no jurisdiction. Process issued by him, 
 requiring the defendant named therein to answer in an action of 
 slander, libel, or assault and battery, is utterly void. Or, if 
 the amount claimed in the p];'ocess exceeds his jurisdiction, he 
 has no jurisdiction of the case, and any judgment he renders is 
 void. (9 John. 366; 6 Hill, 631; Tiffany v. Gilbert, 4 Barb. 
 323.) Where, however, the process claimed " one hundred 
 dollars and over," it was held that the words "and over" were 
 void for uncertainty, and that the process was good. {Rock- 
 well vs. Ferine, 5 Barb. 573.) 
 
 A Justice may disqualify himself, by his own act, from exer- 
 cising civil jurisdiction in certain cases; and in others, he may 
 . be disqualified because of his relationship to the parties, or on 
 'the ground of interest. 
 
 No Justice of the Peace, becoming, or being an inn-holder or 
 tavern-keeper, in fact, has any power or jurisdiction imder the 
 provisions of title four of the second chapter of the third part 
 of the Eevised Statutes, which relates to courts held by Jus- 
 tice's of the Peace; but if a judgment has been actually ren- 
 dered before a Justice, before hfe becomes so disqualified, he 
 may issue execution thereupon. (2 R. 8. 226, § 6; Laws of 
 1846, chap. 140; Rice vs. Milks, 7 Barb. 337.) But this dis- 
 qualification extends only to the trial of suits between pai-ty 
 and party, and has no reference whatever to the jurisdiction of 
 
DISQUALIFICATIONS. 23 
 
 a Justice of the Peace as a criminal magistrate or conservatoi- 
 of the peace, nor to any other powers conferred upon him by 
 other statutes; and it has been held that a Justice of the 
 Peace is not disqualified from entertaining proceedings against 
 a person for refusing to work upon a highway, on the com- 
 plaint of an overseer of highways, although such Justice was, 
 at the time of his election, and when the proceedings were had 
 before him, a tavern-keeper. (jRice vs. Milhs, 7 Barb. 337.) 
 If a Justice keeps a tavern without having a license, the dis- 
 qualification still exists. (Clayton vs. Per Dun, 13 John. 218.) 
 
 In regard to interest and relationship, the statute provides 
 that no judge of any court can sit as such, in any cause to which 
 he is a party, or in which he is interested, or in which ho 
 would be excluded from being a juror by reason of consan- 
 guinity or affinity to either of the parties. (2 R. 8. 275, ^ 2.) 
 This provision applies to a Justice of the Peace, and is impera- 
 tive. He cannot sit in any such cause, and if he does, his acta 
 will be void, and any judgment rendered by him will also be 
 void. (Baldwin \s. McArthur, 11 Barb. 414; 17 Johns. 133; 
 21 Wend. 63.) 
 
 Kelationship is very properly a disqualifying circumstance, 
 and the consent of both of the parties to an action will not re- 
 move this disqualification, where it exists; partiality and bias 
 being presumed from relationship. (Oakley vs. Aspinwall, ;i 
 Corns. 550.) Where a Justice, through inadvertence, or ign{>- 
 rance of the fact, has entertained a cause, one of the parties 
 to which is related to him, a due regard for the sanctity of jus- 
 tice, and respect for his own character and position, should 
 prompt him to dismiss it for want of jurisdiction the momei;' 
 he discovers.the relationship. He ought not to wait to be remindci I 
 of the disability, but should suggest it himself, if aware of th:- 
 fact, as must generally be the case, and promptly withdraw from 
 the cause. (Edwards vs. Bussell, 21 Wend. 63.) No othci- 
 course is compatible with dignity or self-respect. "Where a 
 cause is dismissed on account of his relationship to one of the 
 parties, he cannot even render a judgment for costs. (Foot vs. 
 Morgan, 1 Bill, 654; Hill & T). 8upp., 239.) He is divested 
 of his jurisdiction at once, and has no authority whatever to act 
 in the cause. 
 
 As to the degree of relationship, it has been said that it should 
 
24. NEW YORK JUSTICE. 
 
 be SO near as to amount,,, of itself, to a strong presumption of 
 partiality and fraud. {JEgleston vs. Smiley, 17 Johns. 133.) 
 Where a judge was related to a party within the seventh degree, 
 being a second cousin, it was held that he was disqualified. 
 {Oakley vs. Aspinwall, 3 Ooms. 547.) In respect to affinity, or 
 relationship by marriage, it has been decided to be no objection 
 • that the Justice is half-uncle to the plaintiflF's wife {JEgleston 
 vs., Smiley., 17 Johns. 133); but where the Justice was the 
 father-in-law of the plaintiff, it was held that his authority was 
 questionable. {Clayton vs. Per Dun, 13 id. 191.) In another 
 case, where a Justice of the Peace, who was the son-in-law of 
 the plaintiff, insisted on retaining jurisdiction of a cause, not- 
 withstanding it was objected to by the defendant, it was held, 
 that this was of itself evidence that the trial was not fair and 
 impartial, and the judgment was reversed. (19 Id. 172.) And 
 where the wife of the Justice was the sister of a party in inte- 
 rest, though the suit was prosecuted in the name of another, it 
 was held that the Justice had no jurisdiction, and that his judg- 
 ment was absolutely void. {Foot vs; Morgan, 1 Hill, 654.) 
 The disqualification arising from relationship continues to exist, 
 although the party to whom the Justice is related be a mere 
 surety for the real party, and be fully indemnified against the 
 consequences of the suit. {Oakley vs. Aspinwall, 3 Corns. 547.) 
 Interest on the part of a judge, in the subject matter of a 
 cause submitted to him for decision, is wholly inconsistent Tvith 
 fairness and impartiality. It is a maxim of every code in every 
 country, that no man shall be a judge in his own cause. And 
 it is not left to his discretion, or to his sense of decency, whether 
 he will act ot not. (1 iroj>kins' Ch. Rep. 1.) The statute, 
 before cited, is express on this point. A judge cannot sit in a 
 cause to which he is a party, or in wliich he is interested. (2 
 R. 8. 275, § 2; Edwards vs. Russell^ 21 Wend. 63.) Consent 
 will i^ot remove this disqualification; and a judgment confessed 
 before a Justice of the Peace was held void, where the Justice 
 himself Qwned the demand and was the plaintiff in interest. (2 
 C%.96.) 
 
 It has been held that where a Justice has a' direct interest in 
 the amount recovered, his judgment will be void, though a remote 
 and contingent interest will not disqualify him {Corwein vs. 
 Hainm, 11 John. 76); but the interest must be so remote as to 
 
DISQUALIFICATIONS. 25 
 
 leave no room fox" presuming undue bias or partiality. For this 
 reason, it is provided by statute^ that no action to recover a 
 penalty given to a town, shall be brought before any of the 
 Justices of the Peace residing in the town for the benefit of 
 which the same is prosecuted, but that all such actions may be 
 brought before any Justice residing in any other town in the 
 same county. (1 M. 3. 357, § 5.) This statutory provision applies 
 only, however, to penalties given to a town directly, in its cor- 
 porate capacity, and not to those which are required to be pro- 
 secuted for by town officers in their official capacity, such as the 
 penalties recoverable by overseers of the poor, for the use of 
 the poor, by commissioners of highways for the repair of roads 
 and bridges, and the like. {\Vood vs. Rice, Q Hill, 58.) 
 
 The consequences of a want of jurisdiction on the part of a 
 Justice's Court, have been already mentipned. As it is a court 
 of special and limited jurisdiction, the officer holding it cannot 
 act beyond that jurisdiction without rendering all his proceed- 
 ings absolutely void; and he will be accountable for any injuries 
 arising from his acts. (2 Gaines, 108; 11 Johns. 175; 15 Id. 
 157, 493; l7 id. 145; 3 Cow. 206; 9 id. 61; Gold ads. Bissell, 
 1 Wend. 210.) 
 
 If a Justice should issue an attachment without any of the 
 preliminary proof required by the statute, or try an action of 
 assault and battery, or one in which he was directly interested, 
 or any cause while disqualified by reason of his being a tavern- 
 keeper, any judgment he might render would be void: and, if 
 an execution should issue thereon, and the body or property of 
 a party be taken, he would be liable as a trespasser. (2 Gaines, 
 108; 11 Johns. 175; 12 id. 257; 15 id. 493'; 16 id. 145; Ad- 
 kins vs. Brewer, 3 Gow. 206.) But> the officer who serves 
 process issued by a Justice who has no jurisdiction, is not lia- 
 ble, unless the want of jurisdiction appears on the face of the 
 process. (3 Gow. 206; Lewis vs. Palmer, 6 Wend. 367.) 
 
 In order to render the proceedings of a Justice utterly void, 
 it is necessary there should be a total want of jurisdiction; be- 
 cause, if he has jurisdiction, and merely errs in exercising it, 
 Ms acts are voidable only. (17 Johns. 145; Gunning ham vs. 
 Bucklin, 8 Gow. 178, 187; 2 Gow. & Hill's Notes, 978, 979.) 
 The want of jurisdiction may be shown at any stage of the 
 proceedings in a suit before a Justice {Gowen's Tr. 668, 2 ed.); 
 
26 
 
 NEW TORE JUSTICE. 
 
 but his title to the office cannot be questioned in that way, 
 because, though he be only ^ Justice de facto, yet his acts, so 
 far as they relate to third persons, and to the public, are valid, 
 (9 Johns. 135; 1 Hill, 674; 5 id. 616; 1 Denio, bib; 2 Barb. 
 320; OreenleafYS. Loxo, i Den. 168.) ' 
 
 Though a Justice of the Peace has jurisdiction jn a civil 
 cause, he is not obliged, in all cases, to exercise it. If he is a 
 member of the senate or assembly, or a judge of a county 
 court, he may act or not, so far as holding courts for the trial 
 of civil actions is concerned, at his discretion. (2 H. S. 226^ 
 §7.) 
 
 CHAPTER II. 
 
 OF THE CAUSES OF ACTION COGNIZABLE BEFORE 
 JUSTICES' COURTS. 
 
 An action is defined, by the Code of Procedure; to be an 
 
 < ordinary proceeding in a court of justice, by which a party 
 
 prosecutes another party for the enforcement or protection of a 
 
 right, the redress or prev^ention of a wrong, or the punishment 
 
 of a public ofifence. (Code, § 2.) 
 
 There are but two kinds of actions known in the courts of 
 justice of this State — civil actions, and criminal actions. 
 (id. § 4.) A criminal action is prosecuted by the people of the 
 State, as a party, against a person charged with a public offence, 
 for the punishment thereof (id. § 5.) Every other action is 
 a civil action, (id. § 6.) Where the violation of a i-ight ad- 
 mits of both a civil and a criminal remedy, the right to prose- 
 cute the one is not merged in the other, (id. § 7.) We 
 come now to consider the civil actions, or the causes of action, 
 cognizable before Justices' Courts. 
 
 As has been before intimated. Justices of the Peace derive 
 their authority in regard to civil proceedings exclusively from 
 the statute. They have civil jurisdiction in the following 
 actions, and no other, (id. § 53.) 
 
 1. An action arising on contract for the recovery of money 
 only, if the sum claimed do not exceed two hundred dollars; 
 
WHAT ACTIONS COGNIZABLE. 27 
 
 2. An action for damages for injury to rights pertaining to 
 the person, or to personal or real property, if the damages 
 claimed do not exceed two hundred dollars; 
 
 3. An action for a penalty not exceeding two hundred dollars; 
 
 4. An action commenced by attachment of property, as now 
 provided by statute, if the debt or damages claimed do not 
 exceed two hundred dollars; 
 
 5. An action Upon a bond, conditioned for the payment of 
 money, not exceeding two hundred dollars, though the penalty 
 exceed that sum, the judgment to be given for the sum actually 
 due. Where the payments are to be made by installments, 
 an action may be brought for each installment as it becomes 
 due; 
 
 6. An action upon a surety bond taken by them; though the 
 penalty or amount claimed exceed two hundred dollars. 
 
 . An action on a judgment rendered in a court of a Justice 
 of the Peace, or by a Justices' or other inferior court in the city, 
 where such action is not prohibited by section seventy-one. 
 
 8. To take and enter judgment on the confession of a defend- 
 ant, where the amount confessed shall not exceed five hundred 
 dollars, in the manner prescribed by article 8, title 4, chapter 
 2 of part 3 of the Eevised Statutes. 
 
 9. An action for damages for fraud in the sale, purchase or 
 exchange of personal property, if the damages claimed do not 
 exceed two hundred dollars. 
 
 10. An action to recover the possession of personal property 
 claimed, the value of which, as stated in the affidavit of the 
 plaintiff, his agent or attorney, shall not exceed the sum of one 
 hundred dollars. 
 
 But no Justice of the Peace has cognizance of a civil action: 
 {Code, \ 54.) 
 
 1. In which the people of this State are a party, excepting 
 for penalties not exceeding one hundred dollars; 
 
 2. Nor where the title to real property comes in question, as 
 provided by sections 65 to 62 of the Code, both inclusive {Post, 
 part 1, chap. IX); 
 
 3. Nor of a civil action for an assault, battery, false imprison- 
 ment, libel, slander, malicious prosecution, criminal conversa- 
 tion, or seduction; 
 
 4. Nor of a matter of account, where the sum total of the 
 
28 
 
 NEW YOKE JUSTICE. 
 
 accounts of both parties, proved to the satisfaction of the Jus- 
 tice, exceeds four hundred dollars. But should the Justice give 
 judgment in a case where the joint accounts'exceed four hun- 
 dred dollars, it would not be void, but voidable only [Lamoure 
 vs. Cart/I, 4 JDenio, 370): 
 
 5. Nor of an action against an executor or' administrator, as 
 such. 
 
 No action on a judgment, rendered by a Justice of the Peace, 
 shall be brought in the same county within five years after its 
 rendition, except in case of his death, resignation, incapacity to 
 act, or removal from the county, or that the process was not 
 personally served on the defendant, or on all the defendants, 
 or in case of the death of some of the parties, or where the 
 docket or record of such judgment is or shall have been lost or 
 destroyed. {Oode, §71.) 
 
 It was provided by the Code of Procedure that the Marine 
 Court of the city of New York, which, as we have seen, is a 
 Justice's Court, should have jurisdiction in the following cases, 
 and no other [Code, § 65): 
 
 1. In actions similar to those in which courts of Justices of 
 the Peace have jurisdiction, as above specified; 
 
 2. In an action aipon the charter or a by-law of the corpora- 
 tion of the city of New York, where the penalty or forfeiture 
 exceeds twenty-five dollars, and does not exceed one himdred 
 dollars; ' 
 
 3. In an action between a person belonging to a vessel in the 
 merchant Service, and the owner, master or commander thereof, 
 demanding compensation for the performance, or damages for 
 the violation, of a contract for services on board such vessel, 
 during a voyage performed, in whole or in part, or intended to 
 be performed, by such vessel, though the sum demanded exceed 
 one hundred dollars; 
 
 4. In an action by or against any person belonging to or on 
 board of a vessel in the nlerchant service, for an assault and bat 
 tery or false imprisonment, committed on board such vessel, 
 upon the high seas, or in a place without the United States, of 
 which the ordinary courts of law of this State have jurisdiction, 
 though the damages demanded exceed one hundred dollars. 
 But nothing in this, or the last preceding subdivision, is to be 
 construed as giving the court power to proceed in any of the 
 
COURTS IN NEW YORK CITY. 29 
 
 cases therein referred to, as a court of admiralty or maritime 
 jurisdiction.. 
 
 But, by subsequent statutes (Laws of 1852, chap. 389; 1853 
 chap. 617), it is enacted that in all cases in which the jurisdic- 
 tion of the Marine Court has heretofore been limited, so that 
 there could be no recovery therein for a larger amount than one 
 hundred dollars, the jurisdiction shall be extended, so that in 
 such actions the recovery of either party may hereafter be to 
 the amount of five hundred dollars. In actions commenced in 
 that court, where the amount recovered is one hundred dollars 
 or more, the plaintiff, when the defendant does not appear, is 
 entitled to recover seven dollars, and when a trial is had twelve 
 dollars, as costs, in addition to the fees before allowed by law. 
 The Marine Court has jurisdiction also of actions of assault and 
 battery, false imprisonment, malicious prosecution, libel and 
 slander, where the damages claimdd do not exceed five hundred 
 dollars. {Laws of 1852, chap. 389; Laws of 1853, chap. 617.) 
 But it has no jurisdiction in actions against thfe corporation of 
 the city, where the amount claimed exceeds two hundred dol- 
 lars. (Laws of 1858, chap. 334.) 
 
 The District Courts in the city of New York have jurisdiction 
 in the following cases {Laws of 1857, chap^ 344; Laws of 
 1858, chap. 334): excepting in actions against the city. 
 
 1. In actions similar to those in which Justices of the Peace 
 have jurisdiction, as heretofore specified, where the amount 
 recovered shall not exceed two hundred and fifty dollars, not- 
 withstanding the account of both parties may exceed four hun- 
 dred dollars. It has been decided that the District Courts in . 
 the city of New York are Courts of Justices of the Peace, 
 within the meaning of the section of the Code (§ 71), which 
 prohibits the bringing of an action on a judgment rendered by 
 a Justice of the Peace, in the same county, within five years 
 after its rendition. {McGuzre vs. Gallagher, 2 Sand. 402; 8. 
 G. I Code Rep. m.) 
 
 2. In an action upon the charter or a by-law of the corpora- 
 tion of the city of New York, where the penalty or forfeiture 
 does not exceed two hundred and fifty dollars. , 
 
 The District Courts have also jurisdiction of actions in which 
 the people of this State are a party, where such actions are 
 brought by the overseers of the poor or the commissioners of 
 
30 NEW YORK JUSTICE. 
 
 public charities and correction in said city, upon bastardy or 
 abandonment bonds, and the amount demanded or recovered 
 does not exceed five hundred dollars, and for any breaches of 
 the condition of such bond given in cases of bastardy which 
 shall happen after the recovery of any damages, or the com- 
 mencen^ent of any suit. (Laws of 1862, cha'p. 389,^. 712.) 
 
 The Justices' Courts of cities have jurisdiction in the follow- 
 ing cases, and no other: [Code, § 67.) 
 
 1. In actions similar to those in which Justices of the Peace 
 have jurisdiction, as heretofore specified; 
 
 2. In an action upon the charter or by-laws of the corporations 
 of their respective cities, where the penalty or forfeiture does not 
 exceed one hundred dollars. 
 
 The foregoing are all the provisions of the statute conferring 
 civil jurisdiction upon Justices' Courts, except in the case of 
 penalties, which will be hereafter considered. {Post, part I. 
 chap. III.) 
 
 It is proper here to remark that the provisions of the Revised 
 Statutes respecting courts held by Justices of the Peace in civil 
 cases, and the course of proceeding in them, apply to the 'Jus- 
 tices' Courts in cities respectively, except in the cases where 
 repugnant provisions exist in the acts organizing those courts, or 
 relating thereto. (2 R. 8. 207, § 231.) But they do not apply 
 to the courts in the city of New York, {id.) The laws gov- 
 erning those courts will be found in the special statutes already 
 cited relative to those courts; what was formerly the Justices' 
 Court being now called the Marine Court {Laws of 1819, chap. 
 71), and what were formerly the Assistant Justices' Courts 
 being now called the District Courts in the city of New York. 
 {Laws of 1848, chaps. 153, 276; Code, § 66; Laws of 1852, 
 chap. 324; Laws of 1864, chap. 308.) It is provided, however, 
 by section 68 of the Code, that the provisions of sections 55 to 
 64 of the Code, both inclusive, relating to forms of action, to 
 pleadings, to the times of commencing actions, to the rules of 
 evidence, to filing and docketing transcripts of judgments, to 
 their effect, and the mode of enforcing them, and to proceed- 
 ings where title to real property shall come in question, shall 
 
AMOUNT IN OONTROVERST. 31 
 
 apply to the Marine Court and the District Courts in the city 
 of New York, and the Justices' Courts of cities; except that, 
 after the discontinuance of the action in the inferior court upon 
 an answer of title, the new action may be brought either in the 
 Supreme Court, or in any other court having jurisdiction 
 thereof, and except, also, that in the 'city and county of New 
 York, a judgment for twenty-five dollars or over, exclusive of 
 costs, the transcript whereof is docketed in the office of the 
 clerk of that county, shall have the same effect as a lien, and be 
 enforced in the same manner as, and be deemed a judgment of, 
 the Court of Common Pleas for the city and county of New 
 York. 
 
 Before examining, in detail, the vaiious causes of action cogniz- 
 able before Justices' Courts, it will be well to refer to what may 
 properly be regarded as preliminary questions in all actions 
 brought in those courts, viz: the amount in controversy, the 
 territorial jurisdiction, and jurisdiction of the persons of parties. 
 
 1. Amount in Controversy. , 
 
 It will be perceived that the Legislature, in conferring civil 
 jurisdiction upon Justices? Courts, has adopted the general rule 
 or principle, that the sum or amount claimed, or for which judg- 
 ment may be rendered, shall not exceed two hundred dollars. 
 To this rule there are several exceptions. Actions upon surety 
 bonds taken by Justices of -the Peace, and upon judgments 
 rendered before them not within the prohibition as to time 
 {Mills vs. Winslow, 3 Code Rep. 44), may be brought in Justi- 
 ces' Courts, and judgment rendered thereon for a sum exceeding 
 two hundred dollars. (Code, \ 53; Humphrey vs. Persons, 
 23 Barb. 313.) Justices also have the power to take and enter 
 judgment on the confession of a defendant, where the amount 
 confessed does not exceed five hundred dollars, (id.) The 
 above exceptions equally apply to the Justices' Courts in cities. 
 
 If the complaint sets forth a cause of action exceeding in 
 amount the jurisdiction of the Court, but claims damages within 
 its limit, the Court has jurisdiction; but the complaint is bad 
 if it claims damages to an amount beyond that limit. (1 John- 
 son's Cases, 25, 333; 9 Johns. 366; 12 id. 205; Yager vs. 
 Hannah, 6 Hill, 631.) But the parties may present and prove 
 their demands as they are, and, if a balance is found to be due 
 
32 NEW TOEK JUSTICE. 
 
 upon them, exceeding the Justice's jurisdiction, the excess ma/ 
 be remitted, and judgment taken for the residue. {Justice's 
 Marmal^ Zd ed. 13.) 
 
 An obligee of a bond may bring an action in a Justice's Court, 
 to enforce the condition of the bond, when the penalty exceeds 
 two hundred dollars, if the sums specified in the condition, or 
 the damages claimed for a breach, do not exceed two hundred 
 dollars; he is not bound, however, to bring his 'action in a 
 Justice's Court, but may bring it in a Court of Eecord. (12 
 Wend. 139; 10 id. 525; Berinett vs. Ingersoll, 24 id. 113.) 
 Before the Code it was held that a summons issued by a Ju.stice 
 stating a cause of action exceeding in amount the jurisdiction 
 of the Court, was a nullity, and the defendant was under no 
 obligation to appear. Neither the process issued in the cause, 
 nor the complaint, should claim an amount exceeding' the juris- 
 diction of the Justice. {Yager- vs. Hannah, 6 Hill, 631.) On 
 a contract to build a house, the plaintiff claimed " damages one 
 hundred dollars and over; " the defendant demurred to the de- 
 claration, on the ground that, as the plaintiff claimed damages 
 for. one hundred dollars and over, the Justice had no jurisdic- 
 tion; ; judgment was rendered for less than one hundred dol- 
 lars; it was held that the words "and over" were void for 
 uncertainty, and had no greater effect than if an "&c." had 
 been added, but that, if the plaintiff had claimed one hundred 
 and fifty dollars, or any other sum more than one hundred, the 
 Justice would have been ousted of jurisdiction. {Rockwell vs. 
 P&rine^ 5 Barb. 573.) But since the Code, it is held that the 
 jurisdiction conferred on Justices of the Peace of actions upon 
 justices' judgments, &c., is general, and is not limited to cases 
 where the amount claimed does not exceed two hundred dol- 
 lars. And that, therefore, although a summons issued by a 
 Justice claims damages to an amount exceeding one hundred 
 dollars (the limit then being one hundred dollars), the defendant 
 is bound to appear in the action, inasmuch as Justices of the 
 Peace have jurisdiction of some actions wherein amounts exceed- 
 ing one hundred dollars are claimed. It is not necessary in 
 such case that the summons should state that the complaint will 
 be on such judgment. {Humphrey vs. Persons, 23 Barb. 313.) 
 
 Where there is one indivisible contract, as. the sale at bne 
 time of several barrels of pot-ashes, it cannot be made the found- 
 
TERRITORIAL JURISDICTION. 33 
 
 ation of several suits, so as to recover part in one suit and part 
 in another, nor can a plaintiif divide an entire conti-act for the 
 payment of one hundred and twenty-iive dollars, or any sum of 
 money exceeding the jurisdiction of a Justice of the Peace, into 
 several smaller demands, and bring a distinct action for each; 
 judgments rendered on a note thus divided would be reversed. 
 (15 Johns. 229; WillaTd vs. S^perry, 16 id. 121, 136.) If the 
 plaintiff bring an action for a part only of an entire and indi- 
 visible demand, the verdict and judgment in the action are a 
 conclusive bar to a subsequent suit for another part of the same 
 demand. (15 Johns. 432; 16 id. 136; Miller vs. Oovert, 1 
 Wend. 487.) A running account for goods sold is an entire 
 demand within the rule; and so is such an account, though it 
 include items for rents due and labor. (8 Wend. 492; 13 id. 
 644; Oolvin vs. Oorwin, 15 id. 557.) Where there has been a 
 trespass or conversion by one single indivisible act in relation 
 to several chattels, the plaintiff cannot split his claim for dam- 
 ages, by bringing separate actions for each particular article 
 seized or converted. (15 Johns. 432; Bull vs. Oolton, 22 Barb. 
 96.) This rule applies only to adversary, or what are com- 
 monly called litigated or contested suits. Parties to a large 
 demand may, by mutual agreement, divide it into any number 
 of smaller ones, and the debtor may confess separate judgments, 
 for each. {Cornell vs. Cook, 7 Cow. 310.) 
 
 Sec. 54 df the Code (which is the same as the former pro- 
 vision of the Ee vised Statutes), provides that in a matter of 
 account, if the sum total of the accounts of both parties, proved 
 to the satisfaction of the Justice, exceeds four hundred dollars, 
 he shall not have jurisdiction. This provision extends to those 
 accounts only which are open and unliquidated. When they 
 have been settled, the balance alone is the account between 
 them; and unless this balance, with the other accounts, exceeds 
 four hundred dollars, the Justice has jurisdiction. In order to 
 oust a Justice of his jurisdiction on the ground that th^ sum 
 total of both accounts exceeds four hundred dollars, that fact 
 must be proved by legal evidence, and the evidence must legi- 
 timately tend to establish it; and where the amount of the 
 accounts still subsisting is a question of fact, and the evidence 
 is conflicting, the determination of the Justice on that point is 
 
 conclusive. And if he decides that the accounts exceeds four 
 3 
 
34 NEW YORK JUSTICE. 
 
 hundred dollars, and that he has therefore no jurisdiction, the 
 County Court cannot reverse his judgment. {Parher vs. Sours, 
 25 Bavh. 122.) Under the provisions of the Revised Statutes 
 in regard to joint accounts, the i language of which is almost 
 precisely like that of the Code, where the plaintiff's claim and 
 the defendant's set-off together exceeded four hundred dollars, 
 and the Justice, instead of entering judgment of discontinuance, 
 proceeded with the cause, and gave judgment for the balance, 
 it was held that the judgment, though erroneous, was not void 
 for want of jurisdiction. {Lamour vs. Oaryl, 4 Den. 370.) 
 
 2. Terkitorial Jurisdiction. 
 
 It has been heretofore stated,^that Justices must reside in the 
 town for which they are chosen, and cannot try a civil cause in 
 any other town, except in cases otherwise provided for by law. 
 (1 R. 8. 102, § 12.) 
 
 Justices of the Peace were origitoally mere conservators of the 
 peace, and had no jurisdiction in civil matters; but various 
 powers have been conferred upon them from time to time by 
 statute, until, as Mr. Justice Blackstone says, such an infinite 
 variety of business has been hfeaped upon them, that few care to 
 undertake, and fewer understand the office. (Black, Comm. 
 354.) In this State competent persons have usually been 
 elected. In England, from which country we have borrowed 
 our civil institutions, these magistrates are county officers, and 
 they have been limited in their jurisdiction here only by statute. 
 
 A Justice is limited, in the exercise of any official act which 
 he is authorized to perform, to the town for which he is chosen, 
 only in the trial of civil causes; he may send his civil process 
 into any part of the county, but he cannot hold a Court for the 
 trial of a civil cause out of his own town, nor make processes 
 returnable elsewhere than in the town where he resides. 
 (l^urnsey vs. Lovell, 9 Wend. 319; 1 R. 8. 102, \ 12.) 
 
 Until the Revised Statutes, a Justice might exercise his office 
 in civil suits, anywhere in his county, and might make process 
 returnable elsewhere than in the town in which he resided; and 
 there is no law now limiting his action to his own town, except 
 in civil suits. {8chroepel vs. Taylor, 10 Wend. 196.) He 
 retains his authority during his constitutional teim, in whatever 
 county it may please the Legislature to place his town. {People 
 
JURISDICTION OP THE PERSON. 35 
 
 VS. Garey, 6 Cow. 642; 8. C. 9 id. 641.) A subpoena, however, 
 may be issued by him to compel the attendance of a witness 
 being in the same county where the cause is to be tried, or being 
 in an adjoining county, and in no other case. (2 R. B. 240, \ 
 80.) A summons, waa-rant, or attachment, can only issue to 
 the county in which the Justice resides. 
 
 Actions for injury to real property, or for the recovery of per- 
 sonal property distrained for any cause, must be tried in the 
 county in which the cause of action or some patt thereof is 
 situated. {Code, \ 123.) 
 
 The Code further provides, that actions for the following causes 
 must be tried in the county where the cause, or some part thereof, 
 arose {i^. % 124): 1. For the recovery of a penalty or forfeit- 
 ure imposed by statute; except, that when it is imposed for an 
 oflFence committed on a lake, river, or other stream of water 
 situated in two or more counties, the action may be brought in 
 any county bordering on such lake, river, or stream, and oppo- 
 site to the place where the offence was committed; 2. Against 
 a public -officer or person specially appointed to execute his 
 duties, for an act done by him in virtue of his office, or against 
 a person who, by his command or in his aid, shall do any thing 
 touching the duties of such officer. 
 
 , 3. Jurisdiction of the Person. 
 
 Jurisdiction of the petson is indispensable. A Justice has 
 jurisdiction over all persons residing in the town in which he 
 resides; and it is sufficient to give him jurisdiction if any one of 
 the plaintiflfe or defendants resides in his town. He has juris- 
 diction, .also, where either the plaintiff or defendant resides in 
 a town in the same county next adjoining his town. (2 R. S. 
 226, § 8; Cooper vs. Ball, 14 How. 295.) The Revised Statutes 
 further provide, that if a defendant has absconded from his resi- 
 dence, actions cognizable before a Justice may be brought before 
 a Justice of the to^Vn in which such defendant or his property 
 may be; and if the plaintiffs be all non-residents of the county, 
 or if the defendant be a non-resident of the county, then such 
 action may be brought before any Justice of the town in which 
 such plaintiffs or defendants may be. (2 B. S. 226, § 9.) 
 
 When a warrant issues in favor of a non-resident plaintiff, the 
 action may be brought before any Justice of the county, and 
 
36 NEW YORK JUSTICE. 
 
 need not be brought before a Justice of the town where the 
 defendant resides, or of the next adjoining town. In a suit against 
 a non-resident defendant, the action must be brought before a 
 Justice of the town in which the defendant may be at the time 
 of the commencement of the suit; but it is not necessary that a 
 non-resident plaintiff should be personally in the county at the 
 time of the application for process. {Hunter vs. Burtis, 14 
 How. 295.) 
 
 A suit in a Justice's Court must be brought in the town, or 
 next adjoining town, wherein either the plaintiff or defendant to 
 the record resides. {Hardy vs. Row, 7 Wend. 45^; 14 How. 
 295.) 
 
 Actions cognizable before a Justice may be brought by and 
 against all persons who sue or are sued in their own right; and 
 by and against all town and coun;|y oflScers, in their official char- 
 acter; and by and against corporations; and by executors and 
 administrators (2 R. 8. 226, \ 5); but not against an executor 
 or administrator. {Code, \ 54.) 
 
 When a Justice has no jurisdiction whatever, and undertakes 
 to act, his acts are voi^; but if he has jurisdiction, and errs in 
 the exercise of it, his acts are voidable only. {Butler vs. Potter, 
 17 John- 145.) The confession of a judgment does not confer 
 jurisdiction. {Coffin vs. Tracy, 3 Gaines, 129.) Jf a Justice 
 does not acquire jurisdiction, his proceedings are void {Harring- 
 ton vs. People'' Q Barb. 607); but having once acquired it, he 
 will not lose it by a subsequent irregularity, {id. 621; Stanton 
 vs. Schell, 3 Sand. 323.) When the statute declares expressly, 
 that a Justice shall have no jurisdiction of an action if the 
 idefendant be not proceeded against as the law prescribes, this 
 strips the Justice of all official authority, and he possesses no 
 more power to accept a waiver, and thus acquire jurisdiction, 
 than a private individual would have. {Robinson vs. West, 11 
 Barb. 309.) 
 
CONTRACTS GENERALLY. 37 
 
 CHAPTEE III. 
 
 OF ACTIONS GENERALLY, THEIE SUBJECTS, AND 
 INCIDENTS. 
 
 It will be recollected that the Code provides that Justices of 
 the Peace shall have civil jurisdiction in actions arising on con- 
 tract for the recovery of money only, if the sum claimed do not 
 exceed two hundred dollars. It will be proper, therefore, to, 
 consider the various kinds of contracts which most frequently 
 constitute causes of action in Justices' Courts. 
 
 1. Contracts Generally. 
 
 A contrad; is an agreement, upon sufficient consideration, to 
 do or not to do a particular thing. Contracts are divided into 
 two classes, viz.: contracts by deed, and simple contracts. An 
 agreement under seal is a contract by deed, and is commonly' 
 called a specialty. Simple contracts comprise all contracts, 
 whether verbal or written, of a degree inferior to a deed. A 
 contract not in writing is called a parol contract. A simple 
 contract must be voluntarily made, either verbally, or in writing 
 not under seal, upon a good consideration, between two or more 
 persons capable of contracting, to do or forbear to do some law- 
 ful act: as, if a man sells-or exchanges cattle or goods for money, 
 or any other ccanmodity, or agrees, in consideration of a sum of 
 money, to make a lease of lands, or forbear to prosecute :'. 
 legal claim, &c. These are valid contracts, because there is 
 quid pro quo, or one thing for another. But if a man, withou: 
 any other consideration than mere good will, or natural affec- 
 tion, make a voluntary promise to give to another a sum of 
 money, as for instance fifty dollars, and that he will be his debtor 
 for that sum, this is no contract, but a mere naked promise; for, 
 however a man may or may not be bound, in honor or conscience, 
 to perform such a promise, which the municipal laws of the. 
 conntry do not take upon them to decide, those laws will not 
 compel the execution of such a promise. But if any thing, 
 
38 ' NEW YORK JUSTICE. 
 
 however trifling, were done, or to be done or given for the fifty 
 dollars, it would be a valid contract, and binding upon the 
 parties. 
 
 Six things are necessary to render a contract certain and com- 
 plete: 1. A person competent to contract; ,2. A person capable 
 of being contracted with; 3. A thing to be contracted for; 4. A 
 good and sufficient consideration; 5. Clear and explicit words to 
 express the contract or agreement; 6. The assent of both the 
 contracting parties. 
 
 The parties who enter into the contract must do so willingly, 
 and not be biased or influenced unduly in the matter. No pre- 
 cise form of words is necessary, but any words which show the 
 assent of the parties are sufficient. 
 
 Contracts are express or implied. Express Contracts are where 
 the terms of the bargain, agreement, or promise, are openly 
 uttered or expressed in writing, by the contracting parties them- 
 selves; as, to pay a particular price io^ certain goods, or to 
 deliver a load of hay or fifty bushels of wheat. Implied Con- 
 tracts or promises are such as reason and justice dictate, and 
 which, therefore, the law presumes that every man makes and 
 undertakes to perform. If a person employs another to transact 
 any business for him, or to perform any work, and there is no 
 express agreement as to the price of his labor, the law implies 
 that the employer undertakes to pay the person employed as 
 much as he reasonably deserves for his labor. So, if one pur- 
 chases goods of a merchant, or produce of a farmer, without any 
 agreement as to price, the law assumes that the purchaser agrees 
 to pay the seller the value of the property sold. Without any 
 express agreement between landlord and tenanj as to the use 
 of a farm, the latter is bound to cultivate it in a husbandlike 
 and proper manner; and every person who undertakes any 
 office, employment, trust, or duty, contracts with those who 
 employ him, to perform it with integrity, diligence and skill. If 
 a surgeon, an attorney, or any professional person, is guilty of 
 neglect of duty, he is liable to an action on an implied promise, for 
 a reparation in damages for the injury sustained in consequence 
 of such neglect. An inn-keeper, common carrier, or other bailee, 
 is liable, on an implied contract, for the goods intrusted to his 
 care; so, a common farrier is bound to shoe a horse skillfully, 
 
CONTRACTS OF SALE, 39 
 
 and without injury to him, and a carpenter or other workman, 
 to perform his worlc in a workinanlike manner. 
 
 Contracts are also called executed or executory. If one agrees 
 to exchange property, with another, and they do it immediately, 
 it is called an executed contract, and conveys an interest in pos- 
 session; but if they agree, for a good consideration, to make the 
 exchange at some future time, they convey to each other a prop- 
 erty or interest in action merely, and the contract, not being , 
 performed, is called an executory contract. 
 
 As a general rule, all persons having capacity and understand- 
 ing, except infants and married women, may enter into a con- 
 tract, and bind themselves and their personal representatives to a 
 performance thereof. Infants and married women may, how- 
 ever, under certain circumstances, legally enter into contracts, as 
 will be subsequently shown. {Comyn on Contracts.) 
 
 Where one party proposes by mail a contract with another 
 residing at a distance, and the latter accepts it, apd deposits 
 his acceptance in the post-office, addressed to, and to be trans- 
 mitted to the former, the contract is complete. The party pro- 
 posing the contract may make it a condition of his proposal that 
 the contract shall not bind him until he receives notice of its 
 acceptance; but if he does not, it binds him from the time the 
 letter of acceptance is mailed, although he never receives it. 
 {J^assar vs. Gamp., 1 Kern. 441.) 
 
 2. Contracts of Sale. 
 
 One of the most numerous forms of contract, and one which 
 Justices are very frequently called upon to consider, is the con- 
 tract of bargain and sale. This comprises a lai'ge class of cases, 
 and as many as can be conveniently embraced in thi^ work will 
 be referred to. 
 
 Sale or exchange is a transmutation of property from one man 
 to another, in consideration of some price or recompense iu 
 value. If it be a commutation of goods for goods, it is an 
 exchange; but if it be a transferring of goods for money, it is 
 called a sale. There is no difference in the law applicable to 
 sales and exchanges. The seller is called the vendor, and the 
 buyer the vendee. {Cow. Treatise, 49.) 
 
 ' Independently of the Statute of Frauds, any words importing 
 a bai-gain, whereby the owner of a chattel should signify his 
 
40 NEW YORK JUSTICE. 
 
 willingness and consent to sell it, and whereby another person 
 should signify his willingness and consent to buy it, would be a 
 sale. (De Fondear vs. Shottenkirh, 3 John. 170.) 
 
 3. Statute of Fbauds. 
 
 By a statute, however, which is commonly called the Statute of 
 Frauds, it is enacted that in the following cases, every agree- 
 ment shall be void, unless such agreement, or some note or 
 memorandum thereof be in writing, and subscribed by the party 
 to be charged therewith : 
 
 1. Every agreement that, by its terms, is not to be performed 
 within one year from the making thereof: 
 
 2. Every special promise to answer for the debt, default, or 
 miscarriage of another person: 
 
 3. Every agreement, promise or undertaking, made upon con- 
 sideration of marriage, except mutual promises to marry. (2 B. 
 8. 135, \ 2; Laws of 1863, chap. 464, j?j. 802.) 
 
 1. Every agreement that, by its terms, is not to be performed 
 within one year from the making thereof, {id.) 
 
 To bring an agTeement within the statute, it must be express 
 and speciiic, and not to be performed within a year. If the 
 thing promised may be performed within the year, it is not 
 within the statute. "Where A promised to pay B two dollars 
 a year for his services as minister in a certain church, and had 
 paid for several years half-yearly, it was held that this was a 
 valid promise, for the jury might infer that it was a promise to 
 pay half-yearly. {Moore vs. Fox, 10 John. 244.) 
 
 An agreement by a person with the overseers of the poor, to 
 support a bastard child until it shall be five or six years old, or 
 as long as the child shall be chargeable to the town, at six shil- 
 lings per week, with the condition that the overseers may have 
 their pay every week, is not within the Statute of Frauds 
 {McLees vs. Hale et al., 10 Wend. 426); nor is a contract to 
 take care of A so long as he shall live. {Rhodes vs. Rhodes, 3 
 Sand. Ch. Rep. 279.) If one, under a contract, not written, to 
 work for another for the term of two years, for which he is to 
 receive one hundred dollars, or fifty dollars a year;4eave at the 
 expiration of six months, the employer cannot recover for the 
 non-performance, the contract being within the statute. {Drum- 
 mond vs. Burrell, 13 Wend. 307.) 
 
STATUTE OF FRAUDS. 41 
 
 Although one of the parties to a parol agreement is to perform 
 every, thing- on his part within the year, it is void, if a longer 
 time is stipulated for the performance by the other party. 
 Broadwell vs. Oetman, 2 Denio, 87.) To be within this first 
 subdivision of the statute, the contract must be necessarily 
 incapable of performance within a year i^Artcher vs. Zeh, 5 
 Hill, 200); as, an agreement to pay for improvements in one 
 year from the next month. {Lower vs. Winters, 7 Cow. 263.) 
 But an agreement that may be performed within a year, as to 
 furnish materials and build a house within fifteen months, is not 
 within the statute. {Plimpton vs. Ourtiss, 15 Wend. 336.) The 
 statute does not include a case where it is merely highly im- 
 probable that the time for performance may arrive within a 
 year; but, if the performance is commenced within the year, 
 yet if any part of the contract is, by its terms, not to be com- 
 pleted within that period, it is within the statute. (Lockwood 
 vs. Barnes, 3 Hill, 128.) A party who refuses to go on with 
 a void contract, after having derived a benefit by a part per- 
 formance, must pay for what he has received, (id.) 
 
 A parol lease for a year, made in January, to commence the 
 next. May, is not void, although it is a contract not to be per- 
 formed within one year from the making thereof (Young vs. 
 J)ake, 1 iSeld. 463); but an agreement made in April, for board 
 and rooms for one year, from the first day of May then next' 
 ensuing, would be void. (Wilson YS.*Martin, 1 Denio, 602, 
 606.) An unwritten contract made by a parent with a third 
 person, by which his son is to serve from sixteen years of age 
 until he shall arrive at the age of twenty-one, is void. {Shute vs. 
 How, 5 Wend. 204.) The plaintiff entered into a parol contract 
 to labor at a factory one year for the defendants, the latter to 
 pay for the services one dollar per day, and furnish the plain- 
 tiff with employment during that time; it did not appear from 
 the evidence that the parties expressly fixed upon any precise 
 day when the services were to commence; in an action for a 
 breach, in not furnishing the plaintiff with labor, &c., it being 
 objected that the contract was void because not to be performed 
 within a year, the court held that the plaintiff had a legal right 
 to commence perfo'rmance immediately upon making the con- 
 trftct, and that as, from its nature, it might be completely exe- 
 
42 NEW YORK JUSTICE. 
 
 cuted within a year, the Statute of Frauds did not apply. (12 
 Conneciicui R. 455.) 
 
 2. Every special promise to' answer for the debt, default, or 
 miscarriage of another person. (2 R. S. 135, § 2.) ■ 
 
 The promise here mentioned must be on behalf of a third 
 person originally liable to be sued, otherwise it is not within the 
 statute. It is, however, very difficult in many cases to discover 
 to whom credit for a debt was originally given. The general 
 rule in respect to the sale of goods is, that if the person for 
 Avhose use goods are furnished be liable at all, any promise by a 
 third person to pay that debt must b&in writing, otherwise it is 
 void by the statute. And the memorandum formerly must 
 express the consideration. (Gorayn on Contracts.) 
 
 A promise to indemnify another for becoming a guarantor 
 for a third person is not within the statute; the assumption of 
 the responsibility being a sufficient consideration for the prom- 
 ise. {Chajpin vs. Merrill, 4 Wend. 657.) The words, "for 
 value received," in a guaranty to pay the debt of another, is a 
 sufficient expression of the consideration to render the instru- 
 ment obligatory (Watson'sUx'rs vs. McLaren, 19 id. 557); so, 
 too, a seal imports a consideration. (24 id. 35,256; 10 Barb. 308 ; 
 Bamum vs. Ohilds, 1 Sand. 58; Cooper vs. Bederick, 22 Barb. 
 516.) A promise by a third person to pay the debt of another 
 need not be expressed in any partictilar form; hence, the signatures 
 of sureties to an instrument so di-awn as to express a,n obligation 
 to pay on the part of their principal alone, is an effectual 
 promise in writingr by the sureties, within the statute. {Parks 
 vs. BrinherJioff, 2 Hill,. 663.) Where the maker of a note pro- 
 cures a third pei'son to become his surety, by an endorsement 
 in these words: " I guarantee the collection of the within note," 
 the guaranty was void, because it did not express a considera- 
 tion. (5 id. 145, 161; 13 Wend. 114; 11 Barb. 144; 20 id. 
 298; 25 id. 625.) But would be otherwise under the present 
 statute. 
 
 The statute applies only when the promisor stands in the 
 relation of a surety for some third person who is the principal 
 debtor; therefore, a written promise to guarantee the payment 
 of a chattel note, it appearing that the defendant transferred the 
 
STATUTE OF FRAUDS., 43 
 
 note to the plaintiff, and made the guaranty, in consideration of 
 moneys paid by the plaintiff for the defendant at his request, was 
 held valid, though it expressed no consideration. {Johnson vs. 
 GHlbert, 4 Hill, 178.) Where one who is indebted to another, 
 sells property to a third person, under an agreement that the 
 purchase money shall be paid to his creditor, the agreement 
 need not be in writing, and the creditor may maintain^an action 
 against the vendee, although the consideration does not move 
 from the creditor. (2 Denio, 145; Blunt vs. Boyd, 3 Barb. 
 209.) And the contract of a commission merchant, whereby he 
 assumes the responsibility of a factor upon a del credere com- 
 mission, is not within the provision of the statute relative to 
 promises to answer for the debts of third persons, and is, there- 
 fore valid, though made by parol. {Sherwood vs. Stone, 4 
 Kem. [14 iV: Z".] 267.) 
 
 The former statute was not complied with by any thing 
 short of a statement or expression of the consideration in the 
 note or memorandum. The agreement must state the con- 
 sideration in writing ; and it cannot be implied or made out by 
 inference or conjecture. {4: Den. 275, 559; 4 Johns. 422; 12 id. 
 291 ; Brewster vs. Silence, 11 Barb. 144 ; S. O. 4 Seld. 207.) 
 Thus, an instrument signed by a party in the following form : 
 " Mr. Henry Peters, I hereby agree to pay you the rent of the 
 part! of the house hired of you by Mr. John Ward, in case he 
 fails, the rent to be paid quarterly, at the rate of thirty-seven 
 dollars for the year," is a promise to answer for the debt or de- 
 fault of another, and was void for failing to express the conside- 
 ration of the pronaise. {Newcomb vs. GlarJc, 1 Den. 226.) A 
 guaranty, though in writing, if it express & past consideration, 
 is void ; but parol evidence to explain, is admissible, when it is 
 doubtful whether the consideration was executed or not. (4 id. 
 559 ; Weed vs. Clark, 4 Sand. 31.) 
 
 It is well settled that if the whole credit be not given to the 
 person who assumes to answer for another, his undertaking is 
 collateral, ajid must be in writing, or it is void by the Statute of 
 Frauds. (1 Sand. 514; 5 Hill, 483; 3 Kent's Oomm. 123.) 
 Therefore, a parol promise to a vendor to endorse one's note, 
 in consideration of a sale of goods to the latter, is void. {Oar- 
 ville Ys.'Orane, 5 Hill, 483.) 
 
 K a promise to pay the debt of another be founded on a new 
 
M 
 
 NEW TOEK JUSTICE. 
 
 and distinct consideration, independent of the debt, and one 
 moving between the parties to the new promise, it is not within 
 the statute, but is an original promise. (8 Johns. 29, 376 ; 10 
 id. 242, 412 ; 11 id. 221 ; 13 id. 175 ; 4 Sand. 31, 611 ; 5 
 Barb. 501 ; 11 id. 485 ; 3 Corns. 335 ; but see Ohurchva. Brown, 
 29 Barb. 486.) Where A, being told by B on what terms he 
 would let A's nephew have newspapers to sell, said : " If my 
 nephew calls for the papers, I will be responsible for what he 
 takes," it was held that this was a valid agreement. {Chase vs. 
 Day, 17 Johns. 114.) And a promise to pay the debt of a third 
 person, in consideration that the promisee surrender property 
 levied upon by execution, is an original undertaking, and need 
 not be in writing. (Mercine vs. Andrews, 10 Wend. 461.) 
 
 A parol promise, made without consideration, to indemnify 
 and save the promisee harmless from all damages by reason 
 of his becoming bail for a third person, is void ; and to support 
 aia action on a promise to answer for the debt of a third person, 
 on the ground of there being a new and original consideration- 
 for it, that consideration must be such as to change the actual 
 indebtedness to the new promissor, so that, as between him and 
 the original debtor, he is bound to pay the debt as his own. 
 (4 Wend. 657 ; Kingsley\%. Balcome, 4 Barb. 131.) If a man 
 should say: " Lend John a horse, and I will undertake he shall 
 pay the hire of it"; or, " Send him goods, and I will undertake 
 he shall pay you," such a promise is void, because credit is given 
 to the person obtaining the horse or goods ; but if a man should 
 say : " Let John ride your horse, and / will pay you the hire ;" 
 or, "Deliver him the cloth, and /will pay you," the promise 
 is good, because no credit is given to the person using the horse 
 or taking the goods, and the liability is entirely on the part of 
 the person making the promise. (Comyn on Contracts, 52.) 
 
 It has been seen that the agreement or memorandum required 
 by the statute, need not be drawn in any particular form. It 
 may be contained in a letter, or other writing referred to by 
 letter. But in whatever form the writing may be, the agree- 
 ment or promise formerly must contain with certainty the con- 
 sideration for the promise ; and also a specification of the terms 
 of the agreement or contract. It must also be signed with the 
 name of the party to be charged therewith, or his agent law- 
 fully authorized ; otherwise, the promise or contract will be 
 
STATUTE OF FRAUDS. 45 
 
 Void. (1 Comyn on Contracts, 103.) "Where A agreed in 
 writing to become security for silver or money, not exceeding 
 four hundred dollars, that M might from time to time, for two 
 years, put into the hands of J for the purpose of manufacturing 
 into work, and that, if J refused to pay, A would assume and 
 pay the same with interest, the delivery of the silver to J was 
 held to be a sufficient consideration upon the face of the agree- 
 .ment. {Marquand vs. Hipper, 12 Wend. 520.) 
 
 A guaranty in this form : " We guarantee the coUection of 
 the within note," imposes on the person holding the guaranty 
 the duty of diligence in the collection of the note, even to its 
 prosecution out o'f the State, if the maker resides without the 
 State, before, he can resort to the guarantor. (Burt vs. Horner, 
 h Barb. 501.) But if the party is living within this State and 
 absconds, he is not bound to follow him out of the State. 
 {Coohe vs. Nathan, 16 Barh. 342.) 
 
 A seal to an instrument guaranteeing the payment of a debt 
 of a third person, expresses a consideration; (11 id. 14; Rosen- 
 baum vs. Gunter, 2 B. D. Smith, 415); and so do the words, 
 "for value received." (JVatson^s exrs. vs. McLaren, 19 Wend. 
 557.) A letter written to G, stating that if the owner of a 
 house will rent it to G at a given rent, he will become igecurity 
 to G, and directing G to state the same and send the papers to 
 the writer for execution, expresses on its face a sufficient cou" 
 sideration ; and the owner of the house, G having entered into 
 the occupancy, may maintain an action against the writer, on 
 his refusing ,to execute the proper security, (^ateirhury vs. 
 Qraham, 4 Sand. 215.) , 
 
 3. Every agreement, promise, or undertaking, made upon 
 consideration of marriage, except mutual promises to marry. 
 (2 R. 8. 13,5, § 2.) 
 
 Any parol agreement to pay money, or make a settlement, in 
 vjonsideration of marriage, if not reduced to writing previous to 
 the marriage, is void ; and a subsequent marriage is not a part 
 execution of such an agreement, so as to take it out of the statute. 
 (1 Gomyn on Contracts, 73.) An ante-nuptial agreement to 
 support the daughter of the wife, is void, if not in writing, 
 {Matter of Willoughhy, 11 Paige, 257.) A marriage settlement 
 ■which authorizes a wife to control her property during cover- 
 
46 NEW YORK JUSTICE. 
 
 ture,,does not authorize her to dispose of it by mil. (Wad- 
 hams vs. Home Miss. 800. 2 Kern. 415.) 
 
 Every contract for the sale of' any goods, chattels, or things 
 in action, for the price of fifty dollars or more, is made void by 
 statute, unless, 
 
 1. A note or memorandum of such contract be made in 
 writing, and be subscribed by the parties to be charged there- 
 by : or, 
 
 2. Unless the buyer shall accept and receive part of such 
 goods, or the evidences, or some of them, of such things in 
 action : or, 
 
 3. Unless the buyer shall, at the time, pay some part of the 
 purchase money. (2 M. S. 136, § 3.) 
 
 This section of the statute applies to every sale of tangible, 
 moveable property, where the price is fifty dollars or more. 
 
 1. We will first consider what note, or memorandum in 
 writing, is a compliance with the. statute. The memorandum 
 should disclose who the person is with whom the contract is 
 made, as well as the person to be charged by it ; otherwise, it 
 is no memorandum of the bargain. It is not necessary that the 
 name of the party with whom the contract is made, should be 
 inserted, if there be on the face of the memorandum a suflicient 
 description to show who he is. (Blackburn on Contract of 
 Sale, 37.) Nor is the form of the memorandum of the bargain 
 material. It must, however, state the contract with reasonable 
 certainty, so that the substance of il can be understood from the 
 writing itself, without having recourse to parol proof. (Bailey 
 vs. Ogden, 3 John. 399.) The memorandum must be in writing, 
 and must contain in itself sufficient matter to amount to the note 
 or memorandum, without calling in parol testimony to supply 
 the deficiency. It must contain the whole agreement ; that is 
 to say, the parties, the subject matter, and the promise. 
 
 Blackburn, in his treatise on the Contract of Sale, speaking 
 of the section of the English law which, like our own, requires 
 the memorandum to be signed by the parties to be charged, 
 gays, that if the question were now open, it might seem that the 
 words of this section required the note or memorandum to be 
 signed on behalf of both parties to the contract, but that it is 
 well settled, that the only signature required is a signature on 
 
STATUTE OT FKATJDS. 47 
 
 behalf of the party who is sought to be charged in the proceed- 
 ing in which the question arises. Our own /jourts concur in^ 
 this opinion, and have decided that the subscription by the 
 party to be charged, or by his authorized agent, is sufficient. 
 {Bavh vs. Shields, 26 Wend. 341; 2 Oaines, 117; 2 R. S. 
 136, §8.) ' 
 
 It is necessary that the name of the party to be charged should 
 be subscribed at the bottom of the instrument; and where it is 
 in the body of the memorandum, and in the handwriting of the 
 party to be charged, it is not a compliance with the statute; as 
 a bill of sale in this form: "Albany, March, 12, 1847: Mr. 
 Thomas James, bought of M. & S. Patten, (for the relief com- 
 mittee,) 3,000 bushels of yellow corn, (fifty-six pounds per 
 bushel,) to be delivered at the opening of the Hudson river navi- 
 gation, at our store in Albany, at eighty-one cents per bushel, 
 $2430." (James vs. Fatten, 2 Seld, 9.) 
 
 2. Something more than mere words is necessary to consti- 
 tute a delivery and acceptance of goods, such as the statute 
 requires. There must be some act of the parties, amounting to 
 a transfer of the possession, . and an acceptance by the buyer. 
 Cumbrous articles are not exempt from this rule, as will be 
 seSn by the following case. The parties agreed as to the price 
 of a pile of lumber, separated from other lumber, which had 
 been inspected and measured, and which was on a dock, in 
 view of the parties, at the time of the bargain. The vendor 
 said, " The lumber is yours." The vendee then told the vendor 
 to take th^ inspector's bill to another person, who would pay it. 
 This was done, but payment was refused. It was held, that 
 there was no delivery and acceptance of the lumber, within the 
 meaning of the statute. (Shindler vs. Houston, 1 Com. 261.) 
 
 An actual delivery of goods, or of a part of them, is not 
 always required, but a virtual or constructive delivery may be 
 sufficient. Those circumstances, however, whjch are tantamount 
 to an actual delivery, ought to be so strong and unequivocal, 
 as to leave no doubt of the intent of the parties. As, if the 
 vendor give the vendee an order on a depositary of the goods 
 for their delivery, this is a good delivery; and so, when the 
 chattels are not in the actual possession of any one, the owner's 
 saying to the vendee, ten miles^ away from them, '' I deliver" 
 
48 NEW YORK JUSTICE. 
 
 the' property, is a delivery within the statute. (S John. 399; 
 3 Gaines, 182; 7 Oow. 256; Kimherly vs. PatcMn, 6 E. P. 
 Smith, 330.) A contract for the sale of a boat-load of wheat, 
 to be delivered at a subsequent day, is within the statute of 
 frauds, when no part of the wheat is delivered at the time, no 
 earnest paid, and no note or memorandum of the bargain made 
 in vrriting. {Jackson vs. Covert, 5 Wend. 139.) 
 
 To take the case out of the statute there must be not only 
 a delivery, but an acceptance by the purchaser; for any words 
 or acts of the seller will be unavailing, without an acceptance 
 on the part of the buyer, either by himself or by his agent. 
 (2 jSand. 157; 6 Wend. 397; Gray vs. Davis, 6 Seld. 285.) 
 
 An officer who makes a sale must separate the property he 
 sells from the mass of property with which it is mixed, or the 
 title will not pass. No sale can be perfect, and no property 
 passes to the purchaser, when any act remains to be done by 
 the vendor, such as weighing, measuring or counting out of a 
 common parcel. Accordingly, when hay in the stack was sold 
 by a school collector, under a tax ijirarrant, but was not de- 
 livered, the quantity sold being mixed with the other hay of 
 the owner, to be weighed off, or otherwise separated from the 
 general mass, by the purchaser at a future time, it was held 
 that the property in the hay did not pass to the purchaJbr. 
 {Stevens vs. Uno, 10 Barb. 95.) 
 
 A contract for the sale of goods, to be delivered at a future 
 day, is not invalidated by the circumstance, that at the time of 
 the contract, the vendor neither has the goods in his possession, 
 not has entered into any contract to buy them, nor has any rea- 
 sonable expectation of becoming possessed of them at the time 
 appointed for delivering, otherwise than by purchasing them 
 after making the contract. When the goods are ponderous or 
 bulky, or camfiot conveniently be delivered manually, the law 
 does not require an actual delivery, but only that they should 
 be put under the absolute power of the vendee, or that his 
 authority as owner should be formally acknowledged; or that 
 some act should be done typical of a surrender of them on the 
 one side, and of an acceptance of them on the other. The law 
 only requires such a delivery as is consistent with the nature 
 and situation of the thing sold. {Stanton vs. Small, 3 Sand. 
 230.) 
 
STATUTE OP FRAUBS. 49 
 
 3. The amount of purchase or earnest nloney paid is imma- 
 terial, nor need it be in money, but something must be given 
 and accepted by way of consideration, which is money, or 
 money's worth. {ArtcherYS. Zeh, 2 Hill, 200.) Upon an exec-* 
 utory contract for the delivery of goods sold to be paid for 
 on delivery in notes of a third person, if the third person has 
 become insolvent between the time of the contract and that of 
 the delivery, the seller is not bound to deliver on a tender of 
 the notes, even though they are not entirely worthless. {Bene- 
 dict vs. Field, 16 JV. F. 595.) 
 
 , A broker for sale is a person making it a trade to find pur- 
 chasers for those who wish to sell,- and vendors for those who 
 wish to buy, and to negotiate and superintend the making of 
 the bargain between them, and his authority to make the con- 
 tract need not be in writing. But, in practice, he who employe 
 a broker gives him a discretion as to the terms on which he is 
 to sell or buy. In the absence, however, of express directions, 
 he who employs a broker (or indeed any other common agent) 
 must be taken to give hinjirauthority to act for him in the manner 
 in which such agents ordinarily do act, and the other party who 
 treats with him has a right to assume that the broker has such 
 authority from his principal, and to hold the principal bound' 
 by all acts of his broker not exceeding that apparent authority, 
 If the principal does in fact limit the broker's authority more 
 than usual, it is his business to see that- the other party knows 
 of such an unusual limitation. The question therefore is, what 
 is the customary authority of brokers? This was originally a 
 question of fact, and is still so to some extent; but where a 
 trade has been long established, its customs become known to 
 the la"5v, and are judicially noticed as matters of law. {Blaxik- 
 bMm on Sales, AQ; Memt\s. Bailey, 12 Johns. 102; S. Q. 14 
 id. 484.) 
 
 It is also provided by statute, thatj whenever goods shall be 
 sold at public auction, and the auctioneer shall, at the time of 
 salp, enter in a sale-book a memorandum specifying the nature 
 and price of the property sold, the terms ©f the sale, the name 
 of th^, purchaser, and the name of the person on whose account 
 the sale is made, such memorandum shall be deemed a note of 
 the pontrapt of sale, within the meaning of the section last con- 
 sidered. (272. ^. 1^6, §4-) 
 
50 
 
 NEW TORK JUSTICE. 
 
 ..T.h,e memofaJi^um inu$t be made in a sale-book at the time 
 and place pf sale, or the contract cannot be enforced; it is not 
 enough that a minute in pencil is made at the place of sale, of 
 ithe sums bid 9,nd of the name of the highest bidder, although 
 an eijtry be immediately thereafter made in a sale-book, getting 
 :forth all the particulars prescribed by statute, if such entry 
 ' be m^de at a place different from that where the sale was had. 
 It is not necessary that the names of the owners of the property 
 should be mentioned in the entry pf the memorandum, butdt is 
 sufficient if it contain the name of any factor, or agent, or per- 
 son having authority to sell, on whose account the sale is made. 
 {JSicks vs. Whitmore, 12 Wend. 548.) Where goods amounting 
 in, the aggregate to one hundred dollars are purchased at auc- 
 tion, in several parcels, upon distinct and separate bids, to be 
 paid for in a note af a future day, the whole constitutes but one 
 contract, and the delivery of some of the parcels is sufficient 
 to take the case out of the Statute of Frauds as to the residue. 
 (MiUs\s. Hunt, 20 id. 4^1; 17 «d ,333.) The memorandum 
 may be niade by the agent or clerk o^ the auctioned. {Frost 
 vs. Hill, 3 Wend. 386.) 
 
 All d.eeds of gift, all conveyances, and all transfers or assign-i 
 ments, verbal or written,, of goods, chattels, or things in action, 
 made in trust, for the use of the person making the same, are, 
 by statute, made void a& against the creditors, existing or sub- 
 sequent, of such person,: (2 B. 8. 135, § 1.) 
 
 4. Sales and Mortgages of Chattels. 
 
 The statute declares, that every sale made . by a vendor, of 
 goods and chattels in his possession, or under his control, and 
 every assignment of goods and chattels, by way of mortgage or 
 security, or upon any condition whatever, unless the same be 
 accompanied by an immediate delivery, and be followed by an 
 actual and continued change of possession of the things sold, 
 mortgaged, or assigned, shall be presumed to be fraudulent and 
 void, as against the creditors of the vendor, or the creditors of 
 the person making such assignment, or subsequent purchasers 
 in good faith; and shall be conclusive evidence of fraud, unless 
 it shall be made to appear, on the part of the persons claiming 
 under such sale or assignment, that the same was made in good 
 faith, and without any intent to defraud such creditors or pur- 
 
CHATTEL MORTGAGES. 51 
 
 chasers. (2 E. 8. 136, § 5.) The term creditors, as used in 
 the foregoing section, includes all persons who are creditors of 
 the vendor or assignor, at any time while the goods or chattels 
 remain in his possession or under his control, (id. ^ 6.) 
 
 This section requires an actual and continued change of pos- 
 session. The word actual is used in contradistinction to virtual 
 or constructive. An actual change, as distinguished from that 
 which, by the mere intendment of the law, follows a transfer 
 of the title, is an open, visible, public change, manifested by 
 such outward signs as render it evident that the possession of 
 thcj^ormer owner, as such, has wholly ceased. It was the inten- 
 tion of the Legislature that a debtor who wishes to free himself 
 from the imjDutation of fraud, when he parts with his title to 
 goods, must also part with their use and enjoyment, so as to 
 exclude the hazard of his deriving a false credit from the con- 
 tinuance of his apparent ownership; and this intention, recom- 
 mended by the strongest reasons of public policy, will be en- 
 forced by the courts. Where there has been no actual and con- 
 tinued change of possession, the party asserting the validity of 
 a sale of goods must prove affirmatively that the sale was made 
 in good faith, and without any intent to defraud creditors or 
 purchasers; and both of these propositions must be proved; 
 {Groat vs. liees, 20 Barb. 26.) The good faith of the parties, 
 in the restricted sense in which the term is here used, is evinced 
 by showing that the sale was not colorable and fictitious, but 
 was founded upon a valuable and, as the parties believed, an 
 adequate consideration, and was intended to operate as a valid 
 transfer of the ownership. Yet, even where a full considera- 
 tion is actually given, the motive of the parties may have been, 
 tp prevent the application of the goods sold to the payment of 
 the debts of the vendor. Hence this intent must be disproved, 
 even where the sale is real and effectual. {Randall vs. Parker^ 
 3 Sand. 69.) 
 
 , ^ m.ortgage of goods and chattels, though imaccompanied 
 by an immediate delivery, and not followed by an actual and 
 continued change of possession of the thing mortgaged, is not 
 void, if it be made to appear on the part of the mortgagee 
 that the same was made in good faith, and withotit any intent 
 to defraud purchasers or creditors. Continuance of possession 
 in the mortgagor a,ffords the highest presumption of fraudulent 
 
62 NEW YORK JUSTICE. 
 
 iatent, and will amount to conclusive proof, unless it be rebut^ 
 ted by such evidence as to make the good faith of the transao 
 tion appear affirmatively. Guilt, and not innocence, is presumed, 
 and the burden of proof of innocence is thrown wholly upon 
 the party claiming under the mortgage. {Smith v&. Acker, 23 
 Wmd. 653; 26 id. 511; 4 Hill, 271; 6 id. 433; 1 id. 438, 467, 
 473; 9 Wefthd. 198; 16 id. 523; 17 id. 53.) • An actual removal 
 of the property from the premises in which it was at the time 
 of the assignment is not essential to a change of possession. 
 The publicity of the transfer, the exercise of an owner's au- 
 thority and control over the property by the assignee, and, 
 above all, the absence of any such control by the assignor, are 
 the true tests of the validity of the transfer. (1 Hoff. Oh. R. 
 447, 511.) 
 
 -Whether a chattel mortgage is fraudulent and void as to 
 creditors, for want of a change of possession of the property, 
 is a question for the jury to decide; and their verdict will not 
 be disturbed unless it is palpably against evidence. '{Swift vs. 
 Mart, 12 Sarb. 530; 1 Oom. 496; 23 Wend. 653; 4: Hill, 271.) 
 
 The statute also provides that every mortgage, 'or convey- 
 ance intended to operate as a mortgage, of goods and chattels, 
 •which shall not be accompanied by an imniediate delivery, and. 
 be followed by an actual and continued change of possession 
 of the things mortgaged, shall be absolutely void as against 
 the creditors of the mortgagor, and as against subsequent piu-- 
 chasers; and mortgagees in good faith, unless the mortgage, or 
 a true copy thereof, shall be filed in the town or city Where the 
 mortgagor, if a resident of this State, shall reside at^the time 
 of the execution thereof; and, if not a resident, then in the 
 city or town where the property so mortgaged shall be at the 
 time of the execution of such instrument. In the city of New 
 York, such instrumeilt must be filed in the office of the Regis- 
 ter of said city; in the several cities, other than the city of 
 New York, and in the several towns in which a county clerk's 
 office is kept, in such office; and in each of the other towns, in 
 the office of the town clerk thereof. (2 B. S. 136, §§ 9, 10.) 
 
 Every mortgage thus filed ceases to be valid against the cre- 
 ditors of the person making the same, and against subsequent 
 purchasers or mortgagees in good faith, after the expiration of 
 one year . from the filing thereof; unleiss, within thirty days 
 
CHATTEL MOETGAGES. 53 
 
 next preceding the expiration of the said term of one year, a 
 true copy of such i mortgage, together with a statement exhi- 
 biting the interest of the mortgagee in the property thereby 
 claimed by him by virtue thereof, shall be again filed in the 
 office of, the clerk or register of the town or city where the! 
 mortgagor shall then reside. (2 R. 8. 136, § 11.) 
 
 If the mortgage be not accompanied by an actual and con- 
 tiuuedchange of possession of the whole of the property, and 
 be not filed in the proper office, it is absolutely void, as against 
 creditors of the mortgagor. [Benedict vs. S^nith, 10 Paige, 
 126.) And where, the mortgage not having been filed, the 
 mortgagor was left in possession, as the mortgagee's agent, to 
 manage the property for him, it was held, as a matter of law, 
 that there was no actual change of possession. (2 Hill, 628; 
 Otis vs. 8ill, 8 Barb. 102.) 
 
 A new copy of the mortgage must be filed within thirty days 
 preceding the expiration of a year from the time of filing the 
 first mortgage or copy, and so on from year to year, if the 
 mortgagee wishes to continue his lien. [Nitchie vs. Townsend, 
 2 Sand. 299.) The protection given to purchasers by the sta- 
 tute requiring the refiling of the mortgage, is not limited to 
 purchasers from the mortgagor, but includes a pui'chaser from 
 his vendee, or, in case of his death, from the person in whom, 
 but for the mortgage, the title to the property would have 
 vested, as an executor or administrator. {JFox vs. Burns, 12 
 Barb. 677.) The omission to refile a chattel mortgage does 
 not render it invalid as against purchasers or mortgagees interme- 
 diate the original filing and the omission to refile. [Meeck vs. 
 JPatchtn, 4 Kern. 71.) 
 
 If one takes a mortgage, with actual notice of another which 
 is (Qeither filed nor accompanied by change of possession, he is 
 not a bona fide mortgagee within the statute, and can gain no 
 preference by filing his mortgage. [Gregory vs. Thomas, 20 
 Wend. 17.) 'To show good faith in the making of a mortgage, 
 so a^ to avoid a prior one which was not filed, nor accompanied 
 by an actual and continued change of possession, it is essential 
 to: show that it was made for a valuable consideration, or to 
 secure an honest debt; and proving an honest debt is not suffi- 
 cient, unless it be connected with, the giving of the mortga;ge,' 
 [Bachus vs. -Skamon, 3 Oom. 310.) 
 
54 NEW YOKK JUSTICE. 
 
 An instrument by which one party agrees to sell, and the 
 other to purchase, certain personal property, at a specified 
 price, the vendor to retain a lien upon the property until the 
 purchase price is paid, is in the nature of a chattel mortgage. 
 {Dunning vs. Stearns, 9 Barb. 630.) A mortgage of goods 
 may be valid between the parties, without writing; but it must 
 be in writing and filed when the rights of creditors and pur- 
 chasers in good faith are concerned. {Bank of Rochester vs. 
 Jones, 4 Com. 497.) 
 
 These provisions of the statute in regard to the necessity of a 
 delivery of goods and chattels do not apply except when they 
 have an existence and can be delivered. A contract relating to 
 goo'ds thereafter to be manufactured is not within the statute; 
 as where a mortgage is given upon barrels to be made, or ashes 
 to be manufactured into pot-ashes. {Frost vs. Willard, 9 Barb. 
 440.) In such a case, there must be fraud in fact, to render the 
 contract void. Nor does the statute extend to contracts for the 
 sale of goods which are not in a condition to be delivered, but 
 which require something to be done to get them ready for de- 
 livery or fit them for sale. {Oroohshank vs. Bwrill, 18 Johns. 
 58.) But where the purchaser of a stock of goods in a retail 
 store executed to the vendor a mortgage upon the entire stock, 
 by schedule, the mortgage including also in its terms all articles 
 of a like nature which might be in the store at the time of de- 
 fault in the condition, the mortgagor to continue in possession, 
 although forbidden by a clause in the mortgage from selling on 
 credit, it was held that the mortgage was in its terms fraudu- 
 lent and void as against creditors. {Edgell vs. Hart, 5 8eld. 
 213; 8. O. 13 Barb, 280.) 
 
 It has been held in England, that a contract for the sale of 
 goods, to be thereafter produced by work and labor, is not 
 within the statute requiring a delivery as against creditors, 
 which only relates to sales where the sale is to be immediate, 
 and the buyer immediately answerable. In one case, a coach 
 was to be made, and in another, wheat was to be thrashed; and 
 as the article contracted to be sold was to be first manufac- 
 tured, or labor bestowed upon it, the contract was deemed to 
 ■be one for work and labor, or preparing an article for delivery, 
 (1 Strange, 506; 4 Burrow, 2101.) If the article Sold exists 
 at the time perfect and complete, and is capable of delivery, 
 
, iWARRANTy. . , 55 
 
 tJiiQ cpfitvmt i^ witliin the statute; but if the article is to be 
 afterward manufaQturecl, or prepared by work and labor for 
 d,eliYery, the contract is not within the statute. (8 Oow. 215; 
 5_.Wend. 139; 2 Kenl's Comm. 512; Frost vs. Willard, 9 Barb. 
 4,40.) 
 
 If th«,debt, to secure which a mortgage was given, is assigned, 
 the mortgage passes with the debt, as an incident. The whole 
 legal title to a tiling mortgaged, is transferred to the mort- 
 gagee, subject only to be defeated by the performance of the 
 condition, and, pn the failure, of the mortgagor to, perform the 
 condition, the mortgagee acquires an absolute title to the chat- 
 tel, (1 Cow., 496 ; 7 id. 290 ; 2 Wmd. 596 ; id. 80 ; 12 id.&\ ; 
 XHill, 473 ; Fox vs. Burns, 12 Ba,rb. 677), notwithstanding 
 the mortgage contains a power of sale ; [Burdick vs. McVan- 
 ner, 2 Den. 170) ; and a tender of the money after forfeiturcj 
 dops uot r€!vest the legal title. {Patddn vs. PiercOi 12 Wend. 
 61.) When, however, upon a default in payment, the mort- 
 gagee sells, under the power, a part of the property, and realizes 
 enoijgh therefrpm to pay the mortgage debt, with the interest 
 and expenses, the title to , the residue revests absolutely in the 
 mortgagor, and a subsequent sale, of the residue is tortious; 
 (Charter vs. Stevens, 3 Den. 33;) but, if the property is fairly 
 sold, and brings less than the debt, the balance may be recov- 
 ered of the mortg,agor.. {Case vs. BougMon, 11 Wend. 106.) 
 And until the property is actually sold the mortgagor may 
 redeem. (Pratt y&. Stiles, 'h Abb. \b^^ 
 
 5. Warranty. 
 
 In every sale of a chattel, if the possession be at the time in 
 another, and there be no covenant or warranty ,pf title, the rule 
 of caveat emptor, (let the purchaser beware,) applies, and the 
 party buys at his peril. Btit if the seller has possession of the 
 article, and he sells it as his own, and not as agent for another, 
 and for a fair price, he is understood to warrant the title. 
 (2 Kent's Comm. 478; 1 Johns. 274; Dresser vs. Ainsworth, 9 
 . Barb, 619.) The general rule is, that the vendor of a chattel 
 impliedly warrants the title; yet, when it is not in the vendor's 
 possession, but in that of another, this rule does not prevail.- 
 In ^uch case the party buys at his peril, unless there be an 
 
S6 NEW YOKK JUSTICE. 
 
 express warrg,nty. {!(} Barb.-Mb; B' 0()w; 272; 6 Johns. 5; 
 20 id. 196; Vibbard vs. Johnson^ 19 id. 77). 
 ; With, regard to the qvality or goodness of the article so'ld,' 
 the seller is not responsible except under special circumstances; 
 as, where he has expressly warranted the article to be sound 
 and good, or has made a fraudulent representation, or used 
 some fraudulent concealment concerning it, which amounts to 
 a warranty in law. The common law very reasonably requires 
 the purchaser to attend, when he makes his fcontract, to those 
 qualities of the article he buys which are supposed to be within 
 the reach of his observation and judgment. (1 Johns. 274; 5 
 id. 355; 4 id. ^21; Paul\s. Hadley,2^ Barb. 521.) On a 
 general sale of merchandise for a sound price, where there is no 
 express warranty or fraud, an action will not lie against the 
 vendor on an implied warranty that the article is merchantable, 
 although it is not fit for all the purposes to which it is ordinar 
 rily applied. {ICow. Treatise, 355; 18 Weiid. 449; Moses 
 vs. Mead,-! Ben. 378.) 
 
 If there is no express warranty by the seller, or fraud on his 
 part, the buyer, who examines the article himself, must abide 
 l^y all losses arising from latent defects equally unknown to 
 both parties. (2 Gaines, 48; 1 Johns. dQ, 129, 274; 5 id. 354, 
 
 -395; 13 id. id2; 18 id. 4.03; Sweet vs. Colgate, 20 id. 196.) 
 Where goods aire ordered of a particular character, and are dis- 
 covered not to answer the order given for them, or to be 
 unsound, the purchaser ought immediately to return them to 
 the vendor, or give him notice to take them back, or he will be 
 
 \ presumed to acquiesce in their quality.' (2 KenSs Comm. 480.) 
 Ml the case of a, breach of warranty, the vendee may sue upon 
 it for fjamages without returning the goods; {Muller vs. JEno, 
 4 Ker. 597); but he must return them and rescind the contract 
 in a reasonable time, before he can maintain an action to recover 
 back the ly hole price paid. {11 Johns. iBI ; Warinx/TS. Mason, 
 18: Wend. 425; 12 id. 14.) 
 
 If an article be sold^ by sample, and the sample be a fair 
 ^eciiaen of the articlfc, and there be no deception or Warranty 
 on the part of the vendor, the vendele cannot rescind the sale. 
 •But auoh sale amounts to an implied warranty that the article 
 is in bulk of the same Idnd, and equal in quality to the sample. 
 If the article should turn out to be unmerchantable, from the 
 
BAILMENT. ! 57 
 
 same latent prineiple of infirmity in the sample as well as in 
 the bulk of the commodity, the seller is not answerable. The 
 only warranty is, that the whole quantity answers the sample, 
 (2 Kent's Comm. 481; 20 Johns. 196; 4. Cow. 3&4, 440; 9 Wend. 
 80; 12 id. 5,56; 18 id. 425; Moses ys. Mead, 1 Den. 378.) 
 
 In contractss for the sale, of jjrovisions, a warranty on the 
 part of ,the seller is implied, that they are sound and whole- 
 some,, especially if the provisions be intended for domestic use, 
 (3 Black. Comm. 165; 12 t7oAn«. 468; Wright \s. Hart, 18 
 Wend. 449; 17 id. 268.) 
 
 In general, a warranty of an article sold should be made at 
 the time of the sale; but if, when parties are first in treaty re- 
 specting the sale, the owner oflFers to warrant the article, the 
 warranty will be binding, although the sale does not take place 
 until some days after)vards. (WilmotYa. Hurd, 11 Wend, 584.) 
 
 It is not necessary that the term warrant ^should be used, nor 
 are any paiiicular words required to make out a warranty. 
 But it is essential that the affirmation made at the time of the 
 sale should be intended by the parties as a warranty; otherwise 
 it is merely the -opinion or judgment of the vendor. (20 Johns. 
 196; 19 id. 290, 484; 4 Oow. 440;- 2 id. 438; 10 Wend. 413; 
 Rogers vs. Ackerman, 22 Barb. 134.) An affii-mation that a 
 horse is not lame, accompanied by a declaration of the owner 
 that he would not be afraid to warrant him, is enough to estab- 
 lish a, warranty. (Cqo^vs. Mosely, 13 Wend. 211.) In general 
 a positive affirmation in regard to an existing fact distinctly 
 jnade in negotiations for a trade, should be regarded as a part 
 of, the contract and enforced as a warranty. {Sweet vs. Brad' 
 ley, 24 Barb. 549.) 
 
 ',. 6. Bailment. 
 
 ■••■"'. . ' . 
 
 Actions are frequently brought in Justices' Courts, upon con- 
 tracts of bailment, 
 
 Mr. Justice Story defines bailment to be a delivery of a thing 
 in, trust for some special object or purpose, and upon a contract, 
 express or implied, to conform to the object or purpose of the 
 trust. Story on Bailments, ^ 2. The one who delivers the 
 thing in trust, is called the bailor, and the one receiving it, the 
 ^ailee. 
 
58 NETV YORK JUSTICE. 
 
 BaJlments are properly divided into 'three kinds : 
 
 1. Those in which the trust is for the benefit of the bailor. 
 Under this division, deposits and ttiandates are embraced. A 
 deposit is a delivery of goods to be kept by the bailee; without 
 recompense, for the bailor, and to be returned when he shall 
 require it; as when one leaves his watch or silver with another, 
 to be kept until his return from a journey. K mandate is a de- 
 livery of goods, to be carried from place to place, .or to have 
 some act performed about them, without reward; as when one 
 requests a friend to receive a package and deliver it for him at 
 a particular place or to a certain person. 
 
 2. Those in which the trust is for the benefit of the bailee. 
 Under this division is included a loan for use, or in other words 
 a delivery of property to be used by -the bailee, for a limited 
 time, without reward; as when one gratuitously lends his horse 
 or watch to a friend. 
 
 3. Those in which the trust is for the benefit of both parties; 
 which embraces articles pledged or pawned, and articles hired 
 or let to hire. A pledge or pawn' is a delivery of goods to a 
 creditor as security for some debt or engagement. A hiring is 
 a bailment, always for reward or compensation. {Story on 
 Bailments, §§ 3 to 7.) 
 
 This last subdivision embraces four classes: First. The hiring 
 of a thing for use, as ,tbe hiring of a horse; Second. The hiring 
 of work and labor, as the hiring of an assistant; Third. The 
 hiring of care and services, to be performed or bestowed on the 
 thing delivered, as the deposit of a watch with a silversmith, to 
 be repaired, or the leaving of cloth with a tailor to be made 
 into clothes; Fourth. The hiring of the carriage of goods, of 
 which freight is a familiar illustration. 
 
 It is obvious that these diflFerent kinds of bailments impose 
 different obligations upon the bailee, {id. ^§ 8, 9.) Under the 
 first subdivision, where the trust is for the benefit of the bailor, 
 the bailee is liable for gross neglect only, {Edson vs. Weston, 
 7 Cow. 278), and is not liable at all until the property has been 
 demanded and refused. {Broion vs. Cook, 9 Johns. 361; 
 Phelps vs. Bostmck, 22 Barb. 314.) Where goods are left 
 with a factor for sale on commission, the owner has no cause of 
 action against the factor for the price or value of the goods, 
 until a demand by him; and until such demand the statute of 
 
COMMON CAEKIEKS. 59 
 
 limitations does I not commence running. (^Baird ys. Walker, 12 
 Barb. 298.) But if the property has been delivered to a third 
 person, proof of demand and refusal is not necessary. {Esmay 
 vs. Fanning, d Barb. 176.) 
 
 .rUnder the second subdivision, where the bailee receives the 
 benefit of the trust, he is responsible for the slightest neglect. 
 He must exercise all the care and diligence that the most care- 
 ful persons are accustomed to apply to their own aflFairs. 
 {Scranton vs. Baxter, 4 Sand. 5.) / 
 
 Under the third subdivision, where both parties are to be 
 benefitted by the trust, most of the causes of action arise. 
 
 Common carriers, who undertake to carry goods for a com- 
 pensation, are bailees under the third subdivision, and are 
 liable for any loss not occasioned by the act of God, or of the 
 public enemy. They are, therefore, liable for a loss by fire. 
 (2 Bill, 623; 4 Sund. 136, 490; Mc Arthur vs. Sears, 21 Wend. 
 190.) A common carrier cannot restrict his liability by a gen- 
 eral n'otice that he will not be responsible for baggage j, although 
 such notice is brought home to the passenger; (19 Wend. 251, 
 324; 21 id. 354; 26 id. 591; 9 id. 85; 25 id. 459; Gould vs. 
 Hill; 2 Hill, 623); though he may by an express contract; 
 {The Mer. M. Ins. Co. vs. Ohase, 1 U. D. Smith's O. P. R. 
 115); but to subject the carrier to damage for the loss thereof, 
 it must be strictly baggage, and include neither money nor 
 merchandise. (25 Wend. 459; 6 Hill, 586; Grant vs. Newton, 
 1 U. D. Smith's a P. R. 95.) 
 
 The rule is the same as to a carrier by water and a carrier by 
 land. (19 Wend. 329; McArthur vs. Sears, 21 id. 190.) The 
 freezing of our canals and rivers is such an interposition of 
 superior force as excuses the delay of a common cari'ier by 
 water; but he is bound to exercise ordinary forecast in antici- 
 pating the obstruction, and must use the proper means to over- 
 come it, and exercise due diligence to accomplish the transpor- 
 tation as soon as the obstruction is removed, and, in the mean 
 time, must not be guilty of negligence in the care of the pro- 
 perty. {JBovmmn vs. Teall, 23 id. 306.) 
 
 A common carrier remains liable until the actual delivery of 
 the goods to the consignee; or, if the course of business be such 
 that the delivery need not be made to the consignee, his liability 
 continues until notice of the arrival of the goods be given. He 
 
60 
 
 NEW YORK JUSTICE. 
 
 may, however, show that it is the uniform custom to leare them 
 without notice. (26 Wend. 591; 17 id. 305.; U id. 216, 225; 
 Price vs. Powell,^ Qom. 322.) The liability of the carrier ag 
 insurer, does not continue beyond the period of the arrival of 
 the goods at the place of destination, and their readiness for 
 delivery, with notice of such readiness, when the consignee can 
 be found. (Goold ys. Chapin, 10 Barb, iyl'i.) 
 
 A contract to forward goods from one place to another and 
 distant place, subjects the party to liability as a common carrier 
 for the whole route, although his own transportation line ex- 
 tends only a part of the distance, and the loss occurs on a por- 
 tion' of the route in which heis not interested; and, if a carrier 
 on the lakes agrees to forward by steam goods so marked, and 
 instead of doing so, sends them by a sailing vessel, and they are 
 lost in a gale, he is liable for their value. {Wilcox vs. Parmer 
 lee, 3 Sand. 610.) 
 
 Acceptanee of the goods by the owner does not bar the right 
 of recovery for injury arising from negligence, but may properly 
 be shown in mitigation of damages. {Bowman vs. Teoll^ 23 
 Wend. 306.) 
 
 Within the .</«^V(^ subdivision hiring is embraced; in which 
 case the bailee is answerable for ordinary neglect. One who 
 aires a horse to go a journey is bound to treat it as carefully as 
 any man of common discretion would his own; {Harrington ys. 
 Snyder, 3 Barb. 380); but for any damage happening to the 
 horse without any negligence or misconduct of the bailee, the 
 loss must be sustained by the bailor, and the burden of proof 
 lies on him to show the negligence. It is not enough that the 
 horse becomes disabled, if he is not shown to have become so 
 through the bailee's fault. {Millon ys. Salisbury, 13 Johns. 
 211; 3 Barb. 380.) 
 
 When articles are delivered to aiiother to be repaired or re- 
 newed, the property of the articles, with the additions, remains 
 ia the former owner, both during the performance of the work, 
 and after its completion; {Gregory vs. Stryker, 2 B^. 628); 
 but the bailee has a lien upon the articles for the labor be- 
 stowed, and if a part of the articles has been redelivered, the 
 lien attaches upon the residue. (26 Wend. 467; Morgan vs. 
 Congdon, 4 Corns. 552.) 
 
 Property is frequently delivered to a creditof, as security for 
 
MONET PAID, ETC. 61 
 
 antecedent debt, or for a debt incurred at the time, and when 
 so delivered it is termed a pledge. [Stearns vs. Marsh, 4 Den. 
 227.) The legal property continues in the person making the 
 pledge, and therein consists the difference between a pledge 
 and a mortgage. In the latter case, the legal title is in the 
 mortgagee, and the mortgage may be good without a delivery 
 of the property; but not so in the case of a pledge. Where no 
 time haS been fixed for redemption, the pawnor may redeem at 
 any time,, and the right survives to his representatives, against 
 the pawnee and his representatives. Where the pawnee has 
 parted with the pledge, the pawnor need not tender the sum 
 borrowed, to entitle himself to an action. (2 Ofdnes, 200; 1 
 Sand^ 351; Wilsari vs. Little, 2 Corns. 443.) A creditor cannot 
 sell the property pledged without giving notice to the debtor 
 to redeem. (2 Ooms. 443; Steams vs. Marsh, 4 Den. 227.) 
 
 7. Monet Paid, Laid Out, ajstd Expended, &c. 
 
 An action may be maintained for money paid, laid out, and 
 expended for another, for money received by him, fot goods, 
 wares, and merchandise sold and delivered to him, and for ser^ 
 vi<!es rendered, and work' and labor performed, for him, where 
 therfe is no special agreement or express contract. 
 
 If a person has received money, or something which has 
 been converted into money, belonging to another, without any 
 valuable consideration given on the receiver's part, the laW 
 eoiistrues this to be money had and received for the use of the 
 -owner only, and implies that the person so receiving, pro- 
 mised and undertook to account for it to the true proprietoi'. 
 (2 Oomyn on Contracts, 3.) Money lent by one person to 
 another, '6k- advanced to one at the request of another, or paid 
 oilt or expended for anothel- at his reqiiest, may be recovered. 
 {id. 137, 149.) 
 
 There must always be a considefation to Sustain an agree- 
 niteiit, but the slightest consideration is sufficient. (21 Wend. 
 588; Johnsoii vs. Titus, 2 Hill, 606; 'i Kent's Comrh. 46.) I To 
 support ah action for money had and deceived, it is, as a general 
 rule, nedes^ary to prbve that the money or its equivalent has 
 beeii received by the defentlatit or his agent, and that he is, in 
 efqiltty arid good conscience, bound to repay it. (7 Cow. 662; 
 Bicell fs. Boitghton, 2 Den. 91.) 
 
62 NEW YORK JUSTICE. 
 
 An . agent is liable far all money received for his principal, 
 an attorney for money received for his client, and ^sheriff or 
 constable for money received on an execution. (1 Ocmen's 
 Treatise, 146, 147; 5 Johns. 85; Raymond vs. Beamard, 12 
 id. 274.) 
 
 Money paid as a consideration for an agreement which is 
 rescinded, or upon a consideration which has failed, {Wheeler 
 \s.iBoard, id.. 363,) or in pursuance of an authority which is 
 forged or void; money extorted or obtained by undue advan- 
 tage, fraud, deceit, or embezzlement, and^ money paid; under 
 an illegal contract, by one not himself a party in the criminal- 
 ity,, niay be recovered back. {Bwf, \s. Place, 6 Oow. 431.) 
 But where a contract is entered into by two parties, the object 
 of which is to violate a public statute in its provisions^ spirit, 
 or policy, money paid in execution of the contract,, but unex- 
 pended, cannot be recovered back. {JPerkins vs. Savoffe, 15 
 Wend. 412.) ■ , , . 
 
 Money paid by a party under a mistake of facts, without any 
 negligence imputable to him, may be recovered back; but not 
 money paid under a mistake of law. [Franklin BavJc, vs.. 
 Baymond,^ Wend. 69.) < Money paid through a mutual mis- 
 take of facts, in relation to which both parties were equally 
 bound to inquire, may be recovered back; but the party claim- 
 ing, a return of the money must prove tie facte which entitle 
 him to it. (1 Hill, 287; 3 Com. 230; Wyman vs. Famsworth, 
 3 Barb. 369.) Money paid to an attorney as costs, where costs 
 T^re not recoverable, and through mutual ignorance of the law, 
 may be recovered back. (Moulton vs. Bennett, 18 Wend. 586.) 
 
 For money paid, laid out, and expended fox another, at his 
 request, an action may be maintained, but it must appear that 
 money or its equivalent has been actually advanced. (8 Johns. 
 202; 7 id. 132; 1 jOowen's Treatise, 173.) The request need 
 not be express, but may be by implication. 
 
 An action cannot be maintained for a voluntary payment, 
 where there is no legal obligation; as whei-e an officer, having 
 an execution to collect, or a collector, having a warrant for 
 taxes, pays the amount without any request from the party 
 liable to pay. (3 Johns. 434; 8 id: 436; 10 id. 361; 14 id. 
 87; Sanford vs. Mayor of M Y., 33 Barb. 147.) Where 
 money is paid in consequence of a legal liability to which one is 
 
CONTRACTS RELATING TO LANDS. 63 
 
 subject, but which another ought to pay, an action may be 
 malhtained; as in' the case of a surety who is compelled to pay 
 the debt of his principal. (4 Hill, 345; Powell vs. Smith, 8 
 Johns. 249.) ' 
 
 An action will lie for goods sold and delivered, or for goods 
 bargained to be sold, by one person to another. If the price 
 is agreed upon, the purchaser is bound to pay it; but if no 
 price 'is stipulated, the law implies that thb purchase!- shall pay 
 what the articles sold are reasonably worth. The plaintiff must 
 prove the contract of sale, the delivery of the goods, and their 
 value. ' ■ 
 
 When the tertas of sale are agreed on, and' the bargain is 
 closed, and every thing that the seller has to do with the goods 
 is complete, the contract of sale becomes absolute as between 
 the parties, without ■ actual payment or delivery, and the pro- 
 perty' and the risk of accident to the goods vest in the buyer. 
 He is entitled to the goods on payment or tender of the price, 
 and not otherwise, when nothing is said on the sale as to the 
 time of delivery, or the time of payment. In such cases, the 
 payment or tender of the price is a condition precedent, and 
 the buyer cannot take the goods, or sue for them, without pay- 
 ment; But if the goods are sold upon credit, and nothing is 
 agreed upon as to the time of delivering the goods, the vendee 
 is entitled to their immediate possession, and thb right of pos- 
 session and property vest at once in him. This right of pos- 
 session is, however, not absolute, but is liable to be defeated, 
 if he becomes insolvent before he obtains possession. If the 
 seller has even dispatched the goods to the buyer, and insolv- 
 ency occurs, he hasa right to stop them in transitu. (2 KenCs 
 Comm. 492.) 
 
 When property is sold to be paid for on delivery, the ven- 
 dee, to sustain an action for their non-delivery, must aver and 
 prove a request to deliver. (2 Gowen^s Treatise, 260; lO Mass. 
 Bep. 230.) 
 
 8. . CoisfTRACTS Relating to Lands. 
 
 In this, connection it will be proper to state some of the pro- 
 visions in regard to cony.eyances and contracts relative to lands. 
 
 No estate or interest in lands, other thauvleases for a term not 
 exceeding one year, nor any trust or power over or concerning 
 
64 NEW YORK JUSTICE. 
 
 lands, or in any manner relating thereto, can,be created,- grant- 
 ed, assigned, surretadered or declared, unless' by act or opera- 
 tion of law, or by a deed or conveyance in writipg, subscribed 
 by the party creating, granting, assigning, surrendering or de- 
 claring the same, or by his lawful agent thereunto authorized 
 by writing. And, every contract for the leasing for a longer 
 period than one year, or for the sale of any lands or any interest 
 in lands, is void, unleSs the contract, or some note or memoran- 
 dum thereof, expi'essing the consideration thereof, be in writing, 
 -' and be subscribed by the party by whom the lease or sale is 
 made. (2 R. S. 134, § G* id. 135, § 8.) 
 
 A parol contract for the leasing of lands for more than one 
 year is absolutely void, (id.) Sp are an agreement that one 
 may build and maintain a permanent dam upon the land of 
 another; {Mumford vs. Whitney, 15 Wend. 380); an agreement 
 that one may build a house and occupy it for an indefinite time; 
 {HougMaling vs. Hovghtaling, 5 Barb. 379); an agreement for 
 the exchange of lands; (Rice vs. Peet, 15 Johns. 503); a con- 
 tract to sell and deliver the improvements and possession of 
 lands; {Howard ys.\Eas(on, 7 id. 205); an agreement to extend 
 the time of performance of a contract for the conveyance of 
 land; (Hasbrouck vs. Tappefi, 15 id. 200); an agreement to 
 convey land for services, though the services be rendered un 
 pursuance of the agreement; (7 Cow. 92; King vs. Brown, 2 
 Hill, 485); an agreement to bid in premises upon a sale for the 
 benefit of another; (5 Barb. 63; Lathrop vs. Hoyt, 7 id. 59); 
 the grant of a right to enter upon and occupy the land of an- 
 other, for a permanent purpose, or for an indefinite time; (6 
 Hill, 47; 3 Corns. 511,- PiOcin vs. Long Is. B. R. Qo. 2 Barb^ 
 Ch. R. 221); and the sale of growing trees, fruit and grass. 
 (1 Den. 150; 1 Barb. 542; 2 id. 613; Pierrepont vs. Barnard, 
 5 id. -364,- biit see S. O. 2 8eld. 279.) 
 
 The sale of a pew in a church is a sale of an interest in real 
 estate, and the contract for such a sale, or some note or memo- 
 randum thereof, expressing, the consideration, must be in writ- 
 ing and be subscribed by the vendor, or his agent; the printed 
 name of the vendor is not a sufficient subscription. {Vieh Vs. 
 Osgood, 8 Barb. 130.) 
 
PROMISSORY NOTES. 
 
 9. Use and Occupation of Lanbs. 
 
 A landlord may recover, in an action on the case, a reason- 
 able satisfaction for the use and occupation of any lands or 
 tenements, by any person under any agreement not made by 
 deed; and if any parol demise or other agreement, not being by 
 deed, by which a certain rent is reserved, shall appear in evi- 
 dence on the trial of any such action, the plaintiff shall not, on 
 that account, be debarred from a recovery, but may make use 
 thereof as evidence of the amount of the damages to be recover- 
 ed. (1 B. S. 748, § 26; 1 Weiid. 134; 7 id. 109; 1 Ben. 37; 
 
 6 Johns. 46; 13 id.' 24.0, 297; Hinsdale vs. White, 6 Hill, 507.) 
 The landlord can recover for use and occupation, only for the 
 time the tenant has acti^ally occupied the premises, either by 
 himself -or by his sub-tenant; and where he has never entered 
 under the lease or agreement, either in person or by an under- 
 tenant or agent, there can be no recovery. (Oroswell vs. Crane, 
 
 7 Barb. 191.) Nor can he recover any compensation either on 
 the agreement for payment, or for use and occupation, for a part 
 of the premises occupied by the tenant, where the tenant was 
 deprived of the residue of the premises by an eviction. {Chris- 
 topher vs. Austin, 1 Kein. 216.) But there must be an actual 
 eviction. {Edgerton vs. Paige, 5 Abb. 1.) 
 
 10. Promissory Notes. 
 
 A promissory note may be defined to be a written engage- 
 ment by one person to pay another person therein named, ab- 
 solutely and unconditionally, a certain sum of money, at a time 
 specified therein. It must be for the payment of money only, 
 and not for the performance of some other act, nor can it be in 
 the alternative, or payable on any contingency, or out of a par- 
 ticular fund. {Story on Promissory Notes, § 1; Edwards on 
 Bills, 124.) A written instrument, payable to the estate of M. 
 L., deceased, is not a promissory note. {Lyon vs. Marshall, 11 
 
 Barb. 241.) 
 
 Notes are negotiable or not negotiable. "Forvalue'received, 
 Auburn, Nov. 28th, 1852, I promise to pay to Richard Roe one 
 hundred dollars, six months from date. John Doe." — is not a 
 negotiable note, for it is payable to one person only, " For 
 
66 NEW YORK JUSTICE. 
 
 value received, Auburn, Nov. 28, 1852, I promise to pay to 
 Richard Roe, or bearer {or order), two hundred and fifty dol- 
 lars, three months froiji date, with interest. John Doe." — is a 
 negotiable note. 
 
 The person to whom the note is payable, is called the payee. 
 When he transfers it by endorsing his name on the paper, he is 
 called an endoi'ser. When he simply endorses his name on the 
 note, it is called an endorsement in blanlj. When he endorses 
 his name .and the name of the person to whom, or to whose 
 order, the note is to be paid, it is called an endorsement in full, 
 and the person to whom it is endorsed, is called the endorsee. 
 A restrictive endorsement is an endorsement made to one per- 
 son only, and not to him or his order. 
 
 Formerly, notes wanting negotiable words could not be trans- 
 ferred or negotiated so as to enable the assignee to sue upon 
 them in his own name (3 Kent's Oomm. 77); but now, as the 
 Code requires all actions to be brought in the name of the 
 party in interest, the question of negotiability does not afiect 
 the parties to, or the form of, the action. 
 
 When, however, a party takes a non-negotiable note, he takes 
 it subject to all equities between the original parties. (3 Johns. 
 439; 11 Barb. 620; Beckwith vs. Union Bank, i Sand. 610.) 
 A note negotiable, but not endorsed, transferred by delivery, 
 and a note not negotiable, transferred by delivery, are open to 
 every equitable defence which the maker had against them at 
 the time of the transfer; and if the payee could not have re- 
 covered at that time, the holder ■ cannot. {Hedges vs. Sealy, 9 
 Barb. 214.) 
 
 A note payable to bearer, or order, is negotiable, and may 
 be transferred, so as to give to the holder all the rights of the 
 payee. When a note is payable to bearer, it may be transferred 
 by mere delivery without endorsement; and when it is payable 
 to order, it may be transferred by endorsing the payee's name 
 on the note, and passing the title by delivery. It is not neces- 
 sary that the endorsement should be upon the back of the note, 
 but it is sufficient if it be on the face. If it be by a mark, 
 there must be a subscribing witness. {Story on Promissory 
 Notes, § 152.) An endorser may exempt himself from liability 
 by adding after his endorsement the words,' without recourse. 
 (3 Kenfs Oomm. 92; Hicks vs. Hinde, 9 Barb. 528.) 
 
PROMISSORY NOTES. 67 
 
 It is not .necessary that a note should be dated. Nor need 
 the words value received be inserted, for every note imports a 
 consideration, unless the contrary appears by the note itself. 
 (Goshen Turnpike Co. vs. Hurtin, 9 Johns. 117.) The date of 
 an instrument in writing is only presumptive evidence of the 
 time of its actual execution, and whenever fraud or mistake is 
 alleged, may be rebutted by parol evidence. {Breck vs. Gole^ 
 4 Sand. 79.) Any benefit to the person making the promise, 
 or any loss, trouble, or inconvenience to, or charge upon, the 
 person to whom it is made, is a sufficient consideration. [Smith 
 on Contracts, 52.) 
 
 The maker of a note in the ordmary form, is entitled to three 
 days beyond the time expressed in the note, in which to pay it. 
 These are called days of grace, and are to be computed exclu- 
 sive of the day on which the note would other^vise become 
 due, and inclusive of the third day of grace. {Story on Pro- 
 missory Notes, § 217.) Thus, a note dated the first day of 
 January, 18.52, payable one month after date, would be due the 
 first day of February, 1852. But the three days of grace will 
 postpone the payment until the fourth day of February. If a 
 note thus dated were payable in thirty days from date, the 
 days of grace would begin on the first day of February, and 
 end on the third. When the last day of grace falls on a Sun- 
 day or holiday, the note becomes due and payable on'the pre- 
 ceding day. (id. § 220; 2 Hill, 587; 3 Wend. 456; 4 id. 566; 
 4: Hill, 129; Edwards on Bills, 517.) The following days, viz.: 
 the first day of January, the fourth day of July, the twenty- 
 fifth day of December, and any day appointed or recommended 
 by the Governor of this State, or the President of the United 
 States, as a day of fast or thanksgiving, are for all purposes 
 whatsoever as regards the presenting for payment or accept- 
 ance, and the protesting and giving notice of the dishonor of 
 bills of exchange, bank-checks and promissory notes, to be 
 treated and considered as Sunday. (Laws of 1849, chap. 261; 
 Laws of 1857, chap. 416, p. 838.) 
 
 As between the original parties to a note, or the endorser and 
 endorsee, the consideration of the note may always be inquired 
 into; but where a negotiable note has, before maturity, passed 
 into the hands of a bona fide holder for a valuable considera- 
 
68 
 
 NEW YORK JUSTICE. 
 
 tion, without notice, the origiual consideration of tjie note can- 
 npt, as a general rule, be inquired into. 
 
 Possession is prima facie evidence of property in negotiable 
 paper. And a bona fide holder can recover upon it, though it 
 came to him from a person who had stolen it from the true 
 owner, provided he took it innocently, and without notice, in 
 the course of trade, for a valuable consideration, Ijcfore matu- 
 rity, and under circumstances of due caution; and he need not 
 account for its possession, unless suspicion be raised. This 
 doctrine is founded on the commercial policy of sustaining the 
 credit and circulation of negotiable instruments. (3 Kent's 
 Comm. 78.) 
 
 Every note, absolutely void in its inception, is equally void 
 in the hands of an innocent holder, whether transferred before 
 or after due; as a note given upon a usurious consideration. 
 {Laws of 1837, chap. 430, § 1.) And a note, delivered by the 
 maker without consideration therefor to a third person, to enable 
 the latter to raise money thereon for the maker, or for himself, 
 has no legal inception in his hands. If he negotiates the note 
 upon a usurious consideration, it is void. {Oatlin vs. (Bunter, 1 
 Kern. 368; 2 Duer, 62; 5 id. 468; 4 id. 408.) But when two 
 persons exchange notes, each note, in judgment of law is foun- 
 ded on a valuable consideration, and is therefore valid at its 
 inception and from its first delivery. {Odell vs. Greenly, 4 
 Duer, 358.) A total failure of the consideration of a note, or 
 that it was given without consideration, may be proved on the 
 trial, under the general denial of the complaint. [Meakin vs. 
 Anderson, 11 Barb. 215.) 
 
 An endorsee who buys a note at less than its face, can recover 
 against the endorser no more than the sura for which he bouo'ht 
 the note, with interest; but he may recover the full amount of 
 the note against the maker. {Ingalls vs. Lee, 9 Barb. 647.) 
 
 If property is sold for the purpose of defrauding creditors, 
 and a promissory note is taken to secure the payment of the 
 consideration money, the contract being illegal and void, no 
 action will lie by the payee on such note. Nor will the note 
 be rendered valid by including in it a sum honestly due, and 
 growing out of a different transaction; for, when a part is void, 
 the whole is void, and the party must sue on the original con- 
 sideration. {Niver vs. Best, 10 Barb. 369.) 
 
PROMISSORY NOTES. 69 
 
 As between the makers of a promissory note and the holder, 
 all are alike liable, and all principals; but, as between them- 
 selves, their rights depend upon other questions, wliich are the 
 proper subjects of parol evidence. The fact that one of the 
 signers of such a note adds to his signature the word '' security," 
 is evidence prima facie that he signed the note as surety for 
 somebody; but even that presumption may be overcome by 
 proof that, though he signed as security, he was in fact a prin- 
 cipal debtor. {Robinson vs. Lyle, 10 Bari. 512.) 
 
 There is a difference between the contract made by the 
 maker, and the contract made by the endorser, of a promissory 
 note. The contract of the maker is, that he will pay the note 
 when it becomes due; and if it is payable at a particular place, 
 that he will pay it at that place. The contract of the endorser 
 is: 1st. That the instrument itself and the antecedent signa- 
 tures thereon are genuine; 2d. That he, the endorser, has a good 
 title to the instrument; and, 3d. That the note will be duly 
 paid at maturity, and, if not, that he will, on due presentment 
 of it foi* payment to the maker, and non-payment, and due 
 notice thereof, take it up. (3 Kenfis Oomm. 88; 8tory on Prom. 
 JVbtes, § 135.) The endorsement of a promissory note also im- 
 ports a guaranty by the endorser that the makers were compe- 
 tent to contract in the character in which by the terms of the 
 paper they purported to contract; {Erwin vs. Downs, 15 iVew 
 York R. 575), and knowledge by one who became the holder 
 of such note before maturity, and for a valuable consideration , 
 that the makers were incompetent — e. g., that they were mar- 
 ried women — does not deprive him of his right to rely on the 
 implied guaranty of the endorser that they were competent, nor 
 of the privilege of a bona fide holder. 
 
 A promissory note is joint or several. It is joint, when made I 
 by two or more persons, and when no words indicating a sepa- \ 
 rate promise appear upon it. If the words jointly and seve- 
 rally are used, it is a joint and several note. When two or 
 more persons sign a note written thus: I promise to pay, it is a 
 joint and several note, and the makers may be sued jointly or 
 severally. If the note be signed in the name of a firm, whether 
 the name represents in form only one person, or more than one 
 person, it is the joint note of the firm, and all the partners may 
 
70 NEW YORK JUSTICE. 
 
 be jointly sued thereon, and that, whether the words be, we 
 promise, or I promise. {8tory on Prom. Notes, 57.) 
 ^ In a note written " we jointly or severally promise," or is 
 construed to mean and, and it is a joint and several note. / If 
 the note is written we promise, ajid signed by A B jyrincipal, 
 1 and C D surety, it is the joint note of both; and if it is writ- 
 ten I promise, and signed in the same manner, it is the joint 
 and several note of both. The word surety does not affect the 
 rights of the payee or subsequent holder; it merely indicates 
 the relation of the makers to each other. 
 
 An officer of a corporation to whose order, as such, a note 
 executed to it is payable, and who indorses the note, adding to 
 his name his official character, and negotiates it on behalf of 
 the corporation, is not personally responsible as endorser. The 
 effect of such endorsement is merely to transfer the paper. {Bab- 
 cock vs. Beman, 1 Kern. 200; 1 E. D. Smith's O. P. R. 593.) 
 Proof must be given, however, that the treasurer had authority 
 to make the transfer. {Knight vs. Laing, 2 Abb. 227.) 
 
 To maintain a suit against an endorser of a note, it is neces- 
 sary that a demand of payment be made of the maker, or, if 
 the note is payable at a particular place, at that place, and that 
 payment be refused; and the demand must be made on the 
 precise day the note falls due. {Gayuga Co. Bank vs. Warden, 
 
 1 Com. 413; 8 Barb. 396; Story on Prom. JVotes, § 201.) If 
 the note is not paid, notice must be given to the endorser: 
 
 \{8tory on Prom. Notes, § 220;) and, at farthest, on the next 
 day after the dishonor. {Edwards on Bills, 615.) If the third 
 day of grace falls on a Sunday or a holiday, it will be sufficient ' 
 to give the notice on the next succeeding day. (4 Wend. 566; 
 
 2 Caines, 343; 3 Cow. 252; Howard vs. Ives, 1 Hill, 263.) As 
 to what are holidays, see ante p. 67. 
 
 No precise form of words is necessary to give notice to an 
 endorser; all that is essential is, that it be sufficient to put him 
 on inquiry and prepare him to pay the note, or to resist its col- 
 lection. {Oayiiga Co. Bank vs. Warden, 1 Com. 413; 9 Wend. 
 279; 21 id. 10; 2 Hill, 587.) 
 
 A notice dated the day on which the note is made payable, 
 and which states its amount and the names of the maker and 
 endorser, is a sufficient description of the note, in the absence 
 of proof that any other note existed to which the notice miwht 
 
PROMISSORY NOTES. 71 
 
 refer. And a statement in a notice of protest that the note was 
 protested for non-payment, is sufficient notice of a presentment 
 and demand of payment at the time and place for payment. 
 {Younffs vs. Lee, 2 Kern. 551; 5 SeMy'pd; 18 Barb. 187.) 
 
 The notice may bo oral, or verbal, [WoodinYS. Foster, 16 
 Barb. 146,) or it may be in writing. It may be oral or verbal 
 in all cases where it is directly made to the person who is to 
 receive the notice; and it may also be orafor verbal when it is 
 at his place of business, or at his dwelling house; although, in 
 the latter cases it is most usually in writing. But where the 
 notice is to be sent by mail, and not by a special messenger, it 
 must be in writing; for otherwise the party could not have any 
 means accurately to ascertain its character, object, or operation. 
 (Story on Prom. Notes, § 341.) 
 
 If the party entitled to notice, and the holder, reside in the 
 same town or city, the former rule was that notice must be 
 given to the party entitled to it, either personally or at his 
 domicil, or place of business. (10 Johns. 490; 11 id. 231; 4 
 Hill, 129; 5 id. 236.) If the holder, and the endorser entitled 
 to notice, reside in different towns, notice may be sent to the 
 latter through the mail to the place where he is actually resi- 
 dent. (13 Johns. 432; 11 id. 231.) If he resides in one town, 
 and does business in another, notice may be sent to either, (4 
 Wend. 328; 4 Sand. 93,) excepting where the known residence 
 of an endorser is in the town where the note is held and made 
 payable. In such case notice cannot be served on him by mail, 
 directed at his place of business at another town, but must be 
 served on him pei'sonally, or by leaving at his residence or 
 place of business. (3 Kern. 549.) The notice may be given 
 hj a party to the note, or by a person duly authorized; (18 
 Johns. 230; 3 Wend. 173;) and, if the party be dead,, the 
 notice must be given to his personal representatives. Notice 
 may be served by mail in all cases. {Laws of 1857, chap. 416, 
 J). 838.) 
 
 An endorser of a note does not dispense with the necessity 
 of presentment for payment and notice of non-payment, by 
 taking from the maker security against his liability. {Seacord i 
 vs. Miller, 3 Kern. 55.) Nothing short of the clearest evidence 
 of assent, express or implied, on the part of an endorser, will 
 amount to a waiver of notice of protest. {Hill <& D. Swpp. 122.) 
 
72" 
 
 NEW YORK JUSTICE. 
 
 In a suit against the maker of a note, only his signature need 
 be proved. A demand before suit, whether the note is payable 
 at a particular place or not, if not necessary; but the maker 
 may plead readiness at the place, and bring the money into 
 Court, and exonerate himself from interest and costs. (17 
 Johns. 248; 8 Cow. 271; liaxtun vs. Bishop, 3 Wend. 13.) 
 
 Unless a note is payable "with interest, it does not draw inter- 
 est until it becomes due, and then the interest must be computed 
 from the last day of grace. 
 
 A guaranty is either of the payment of a note, or of its col- 
 lection. If of the former, the guarantor is liable, upon the fail- 
 ure of the maker, to pay. If the guaranty is of payment upon 
 demand, the demand must be averred and proved. (2 Johns. 
 Oases, 405; Douglass vs. Rathbone, 5 Hill, 143.) If the guar- 
 anty is of collection, the holder must exhaust his remedy 
 against the maker, before he can recover from the guarantor. 
 {Ounvpston vs. McNair, 1 Wend. 457.) A guaranty is a special 
 contract, and the suit must be upon it, and not upon the note. 
 (Ellis vs. Brown, 6 Barb. 282.) If the guaranty be by the 
 payee, it operates to transfer the note, but not as an endorse- 
 ment. {Vanderueer vs. Wright, id. 547.) A. guarantor can- 
 not be made liable as an endorser, nor is he entitled to set up 
 want of demand and of notice. (2 id. 51; Brown vs. Curtiss, 
 2 Corns. 225.) The true rule in the construction of guaranties 
 is, that in all cases where an absolute guaranty is endorsed La 
 full upon a note, the maker of the guaranty is to be held, 
 neither as a maker nor as an endorser, but as a guarantor simply 
 of the note. (15 Law Reporter, netv series, vol. 5, 541.) 
 
 11. Interest. 
 
 The rate of interest upon the loan or forbearance of any 
 money, goods, or things in action, is seven dollars upon one 
 hundred for one year; and at that rate for a greater or less sum, 
 and for a longer or shorter time. (2 R. S. 771, § 1.) 
 
 Interest is not allowed on an unliquidated account for goods 
 sold and delivered, where no time is fixed for its payment, and 
 there is no agreement, expressed or implied, to pay interest; 
 (4 Cow. 497; 6 id. 193; 4 Barb. 36; 2 Corns. 135; Ust^ly vs. 
 Cole, 3 id. 502); nor is it recoverable upon an unliquidated 
 account for work, labor, and services. (7 Wend. 178; Holmes 
 
INTEREST. 73 
 
 VS. Ranhin, 17 Barb, 454.) But, where a merchant has been 
 in the habit of charging his customers interest after a limited 
 period of credit, those who deal with him with a knowledge of 
 the fact, are bound to pay interest. So, too, where there is a 
 general usage in any particular trade or branch of business, to 
 charge and allow interest, parties having knowledge of the 
 usage, are presumed to contract in reference to it. (8 id. 109; 
 4 id. 83; 1 Barb. 235; Esterly vs. Oole, 3 Ooms. 502.) 
 
 The rule for calculating interest, where a partial payment has 
 been made, is, to calculate interest on the principal, up to the 
 time when the payment was made, add this interest to the prin- 
 cipal, and then deduct the payment. This rule, however, is to 
 be adopted only in cases where the payment exceeds the inter- 
 est due; otherwise it will be taking interest upon interest. 
 When a payment falls short of the interest due, it must not be 
 deducted; but interest must be calculated upon the principal, 
 up to the time when the payments, taken together, will exceed 
 the interest due, and, the deduction must then be made. {Wil- 
 liams vs. HovgMaling , 3 Cow. 86.) 
 
 When a balance of an account is received, without any charge 
 for interest, interest cannot afterwards be demanded. {Conse- 
 qua vs. Fanning, 3 Johns. Oh. R. 587.) If payment of the 
 principal is accepted in full, it is a good accord and satisfaction; 
 {Johszston vs. Brannan, 5 Johns. 268); but it must be accepted 
 in full, for payment of the amount of the plincipal, if made 
 generally, on an account composea of principal and interest, 
 applies first to extinguish the interest, and thus leaves a part of 
 the principal still due. (The People vs. JVew York, 5 Cow. 
 331.) The receipt of the principal debt, where interest is only 
 recoverable as damages, is a bar to an action for the interest. 
 {Jacott vs. Emmett, 11 Paige, 142.) 
 
 12. USTJKT. 
 
 It is provided by statute, that no person or corporation shall, 
 directly or indirectly, take or receive in money, goods or things 
 in action, or in any other way, any greater sum or greater value, 
 for the loan or forbearance of any money, goods or things in 
 action, than seven dollars upon one hundred dollars for one 
 year, and after that rate for a greater or less sura, or for a 
 longer or shorter time; (1 R. 8. 772, § 2); and every person 
 
74 
 
 NEW YORK JUSTICE. 
 
 who, for any such loan or forbearance, shall pay or deliver any 
 greater sum or value than is above allowed to be received, and 
 his personal representatives, may recover, in an action against 
 the person who shall have taken or received the same, and his 
 personal representatives, the amount of the money so paid or 
 value delivered, above the rate aforesaid, if such action be 
 brought within one year after such payment or delivery, {id. 
 \ 3.) If such suit be not brought within the said one year, and 
 prosecuted with effect, the overseer of the poor of the town 
 where such payment may have been made, or any county super- 
 intendent of the poor of the county in which the payment has 
 been made, may sue for and recover the said sum with costSj at 
 any time within three years after the said one year. (id. § 4.) 
 
 All bonds, bills, notes, assurances, conveyances, and all other 
 contracts or securities whatsoever, (except bottomry and respon- 
 dentia bonds and contracts,) and all deposits of goods or other 
 things whatsoever, whereupon or whereby there shall be re- 
 served taken, or secured or agreed to be reserved or taken, any 
 greater sum or greater value, for the loan or forbearance of any 
 money, goods, or other things in action, than is above prescribed, 
 are void. {id. § 5.) Whenever, in an action at law, the de- 
 fendant pleads or gives notice of the defence of usury, and 
 verifies the truth of his plea or notice by affidavit, he may, for 
 the purjDose of proving the usury, call and examine the plain- 
 tiff as a witness, \n the same manner as other witnesses may be 
 called and examined, {id. § 9.) 
 
 It is not illegal to stipulate for compound interest, or that in- 
 terest, as it becomes due, shall be converted into principal, and 
 cany interest; and a note given for the balance of an account, 
 on which account interest has been annually added, is not 
 usurious. (1 Johns. Ch. R. 14; 1 Wend. 521; Fonnan vs. 
 Forman, 17 How. 255.) Including interest upon interest in a 
 note given upon settlement is not usury. {Kellogg vs. HickoJc, 
 1 Wend. 521.) To take out interest in advance, as in discount- 
 ing a note, is not usurious, and there is no distinction in this 
 respect between bankers and others; (15 Johns. 162; 2 Cow. 
 664,678,712; Utica Ins. Ccvs. Bloodgood,lWend. &52); nor 
 is taking interest for the three days of grace. {Bank of Utica 
 vs. Wager, %Gqw. 712.) - 
 
 A mistalie in the computation of interest will not make a loan 
 
USURY. 75 
 
 usurious; and, when the mistake is trifling, the Court will pre- 
 sume that there was a mistake in calculation, rather than an 
 error in the principle of computation. {jV. Y. Fire Ins. Go. 
 vs. Sturges, id. 664, 678; 1 Hill & D. Swpp. 34.) A note pay- 
 able one year from date, with interest quarterly, is not usurious; 
 {Mowry vs. Bishop, 5 Paige, 98); nor is a note presumptively 
 usurious, because it bears interest from a time prior to its date. 
 (Marvin vs. Feeter, 8 Wend. 533.) Selling uncurrent bank- 
 notes, which are two or three per cent, below par in the market, 
 for their nominal amount in current money to be paid in thirty 
 days, if a cover for a loan, is usury. {Pratt vs. Adams, 7 
 Paige, 615.) 
 
 :The criterion by which to detect usury, where any thing is 
 given besides money in consummating a loan, is the market 
 value of that which is given, and the gain to the lender in 
 charging and. obtaining more than such market value. (Mum- 
 ford vs. Am. L. I. & T. Co. 4 Com. 463.) 
 
 The statute prohibiting usury applies only to those loans 
 which are in substance and eifect loans of money. The inten- 
 tion of the statute is, to prohibit more than seven per cent, upon 
 direct loans of money, and upon loans of money made indirect- 
 ly by way of loan of goods and things in action. A loan of 
 goods, or of a chose in action, unless intended as a mere cover 
 for a loan, is not usurious. And, in all cases where the con- 
 tract is in form one of sale or exchange-, if the Court, in lookiiig 
 at the whole transaction, can see that the value secured to the 
 vendor was, in good faith, but the price of the thing sold or 
 exchanged by him, there can be no usury, whatever the price 
 may be, or the mode in which it may be secured. Where, 
 however, the object of the parties is a loan of money, and some- 
 thing else, under the form of a sale or exchange, is substituted 
 for it, the principal of the loan or debt will be the value in 
 money received by the nominal vendor. (Dry Dock BJc. vs. 
 Am. L. I. <& T. Co. 3 GoTns. 344.) And where on an applica- 
 tion for the loan of money the borrower, in lieu thereof, and in 
 exchange for his own obligation, receives the negotiable obliga- 
 tions of the lender for the amount, which the parties intend 
 shall be, and which are, used by the borrower to raise the 
 money, the transaction is a loan ir/ithin the usury laws. (8cher- 
 merhorn vs. Tallmmi, 4 Kem. 93.) 
 
76 NEW yOBK JUSTICE. 
 
 A usurious contract is executed and extinguislied by pay- 
 ment; therefore, after usurious loans and advances have been 
 paid, they cannot be recovered back, except that the excess 
 may be sued for within the year, uh^er the statute. (10 Barb. 
 576; Seymour vs. Marvin, 11 id. 80.) 
 
 A security for the payment of money, not usurious in its in- 
 ception, cannot be rendered usurious by any subsequent agree- 
 ment. Thus, where a note is given in renewal of a former note, 
 and a premium or interest above seven per cent, is exacted for 
 the renewal, the note is usurious and void, although a separate 
 note was given for the premium; but the old note is not there- 
 by affected. {8wartwout vs. Faine, 19 Johns. 294.) The taint 
 of usury, however, in the original security, affects all subsequent 
 securities; {Edwards on Bills, 354;) and if a security be taken 
 for a valid loan and a prior usurious one, the usury taints the 
 whole security. {Jackson vs. Packard, 6 Wend. 415.) 
 
 To render a contract usurious, both parties must be cogni- 
 zant of the facts which constitute the usury; and, if a bona 
 fide holder of a negotiable note, which is tainted with xisury 
 in the hands of the payee, receives a new security from the 
 maker, and gives up the note, without any knowledge of the 
 usury, th©new security is not usurious. (1 Barb. Ch. R. 43; 
 Bmedbury vs. Simpson, 2 Sand. 85.) If the payee of a note 
 made for his accommodation, transfers it as business paper, at 
 a usurious discount, to a bona fide purchaser, the maker may 
 set up the usury in defence. {Dowe vs. SchuU, 2 Ben. 621.) 
 
 13. Payment. , 
 
 The law is well established, that the acceptance by a cre- 
 ditor of the note of a third person, in full satisfaction of an 
 existing debt, is an extinguishment of the original indebted- 
 ness; and this, though the note so taken is for a less sum than 
 the whole debt. (20 Johns. 76; 1 Wend. 172; 14 id. 116; 21 
 id. 450; 22 id. 341; 10 Barb. 372; JVoel vs. Murray, 13 JSf. Y. 
 167.) The law, however, is otherwise, where the note of the 
 debtor himself is taken. In the latter case the creditor, if the 
 note is not paid at maturity, may sue upon the original indebt- 
 edness, {id.; 8 Oow. 79; 3 Wend. 68; Van Steenburgh vs. 
 Hoffman, 15 Barb. 28.) 
 
 Where the note of a third person is taken in full satisfaction 
 
ILLEGAL CONTRACTS. 77 
 
 of a debt, on condition that it shall be paid at maturity, and 
 not otherwise, and the note is not paid, the creditor may insist 
 that the contract is broken, and claim the whole amount of the 
 original debt; but if he waives the forfeiture, and retains the 
 note, and iinally receives the full amount of it from the maker, 
 he cannot afterwards proceed against the debtor for the balance 
 of the origii^al demand. {Oonhling vs. King, 10 Barb. 372.) 
 Taking the note of a third person for an existing debt is not 
 payment, unless the creditor agrees to receive it in payment. 
 {Vail vs. Foster, 4 Oom. '312.) 
 
 A payment in current bank bills, if accepted without objec- 
 tion, is a good payment. {Hall vs. Fisher, 9 Barb. 17.) A 
 payment in counterfeit bank bills is a nullity, and will not dis- 
 charge the debt, though both parties suppose" them to be gen- 
 uine. So, also, of payment in the genuine bills of a bank 
 which'has failed, neither party being aware of the fact. But 
 in such cases the party receiving the bills must return them 
 vdthin a reasonable time after discovering their worthlessness, 
 or he will be obliged to sustain the loss. {Thomas vs. Todd, 
 6 Hill, 340.) 
 
 14. Illegal Contracts. 
 
 There is a large class of contracts which are illegal, either 
 by common or statute law, and upon which no action can be 
 maintained. A contract is illegal at common law on three 
 grounds: because it violates morality; or because it is opposed 
 to public policy; or because it is tainted with fraud. If the 
 contract grows immediately out of or is connected with, an 
 illegal or immoral act, a court of justice will not enforce it. 
 The consideration must not only be valuable, but it must be 
 lawful, and not repugnant to law, or sound policy, or good 
 morals. (2 Kent's Oomm. 466.) 
 
 ' Contracts for obscene prints, or for books whose tendency is 
 immoral, or for such as are libels on individuals, and for which 
 the person who published them might have been indicted for a 
 libel, are void. (4 Espinasse, 97.) A printer cannot recover 
 for publishing such prints or books; {Chitty on Contracts, 217;) 
 nor a lessor for the use and occupation of a house, let for/ the 
 purposes of prostitution. (1 Fspinasse, 13.) So, also, a pro- 
 mise by a putative father, to pay for the board of a woman and 
 
78 NEW YORK JUSTICE. 
 
 her bastard child, the purpose of both parties being to facili- 
 tate a continued state of cohabitation, is void. {Travinger vs. 
 McBurney, 5 Cow. 253.) In Vermont, it has been decided that 
 an action cannot be maintained for the recovery of property 
 which the owner had prepared to use in violation of law; as, 
 for pieces of German silver, representing Mexican coin. (21 
 Vermont, 1.) And where it is an offence by statute to sell 
 spirituous liquors without license, the courts will not aid the 
 vendor in enforcing payment. But in an action to recover for 
 the price of liquor sold, the lawfulness of the sale will be 
 presumed, till the defendant proves the contrary. [Smith vs. 
 Joyce, 12 Barb. 21.) 
 
 Although the statute contain no express prohibition, all con- 
 tracts which contravene the general policy of the common law, 
 are void; as, a contract to pay money for killing, robbing, steal- 
 ing, committing an assault and battery or trespass, and the like. 
 (1 Cow. Treatise, 271.) So, also, are all contracts in restraint 
 of marriage and of trade, they being against public policy. 
 
 With respept to contracts in restraint of trade, if they totally 
 prohibit the carrying on of a particular business at any place 
 within the State, they are void; for such a general restraint is 
 injurious to the public. But contracts for a limited restraint, 
 as that a man will not exercise his trade, or carry on his business, 
 in a particular place, or within certain limits, are valid, provi- 
 ded they are entered into for some good reason independent of 
 pecuniary considerations. (2 Kent's Comm. 467.) Agreements 
 between proprietors of boats running on the interior lakes of 
 this State, regulating the price of freight and fare, and prohi- 
 biting the parties from engaging in similar business out of the 
 association, have been declared void, as being in restraint of 
 trade. (ecZ.) 
 
 When a man covenants to do a thing then lawful for him to 
 do, and a subsequent statute makes it unlawful to do it, the 
 covenant is repealed; and so, when he covenants not to do a 
 thing which is lawful, and the statute makes the not doing it 
 unlawful; but when he covenants not to do a thing, which was 
 then unlawful, a statute maldng it lawful does not repeal the 
 covenant. {Presb. Church, vs. City of New York, 5 Cow. 538.) 
 
 When two persons apply to the Governor of the State to be 
 appointed to the same office, and it is agreed that one of them 
 
ILLEGAL CONTRACTS. ' 79 
 
 shall withdraw his application, and aid the other in procuring 
 the appointment, in consideration of which the fees and emolu- 
 ments of the office are to be divided between them, such con- 
 tract is illegal and void. All agreements by which one person 
 engages to pay another for his aid or influence in procuring an 
 appointment to office, are illegal and void. (Gray vs. Hook, 
 4 Co^ns. 449.) 
 
 A note given in consideration of forbearancd to bid at a public 
 auction is fraudulent and void, as against public policy. Cer- 
 tain articles being advertised for sale at public auction, it was 
 agreed between A and B that they would not bid against each 
 other, but that A should buy the articles, and afterwards divide 
 the same equally with B. A made the purchase, but refused 
 to deliver to B the one half of the goods. In an action brought 
 by B against A, to recover one-half of the profits of the pur- 
 chase, it was held that the agreement was without consideration 
 and void, and against joublic policy. (Doolin vs. Ward, 
 6 Johns. 194.) And so, where a contract or job for making a 
 road was put up for sale at auction, and A and B agreed that 
 one of them should bid, and that, if the contract should be 
 struck oif to the one bidding, the other should have an equal 
 share in it, and it was struck oif to B, against whom A after- 
 wards brought an action for a breach of the agreement between 
 them, it was hold that the agreement was without consideration 
 and void. (Wilbur vs. How, 8 Johns. 444.) 
 
 The same principle applies with more force to sales on execu- 
 tion. The law has regulated sales on execution with a jealous 
 care, and has provided a course of proceeding likely to prcftnote 
 a fair competition, and a combination to prevent competition is 
 contrary to public policy, and to the interests of the original 
 debtor, whose property is liable to be sacrificed by such a com- 
 bination. The abstaining from bidding, upon concert and by 
 agreement, under the promise of a benefit for thus abstaining, 
 is the evil the law intends to redress. A public auction is open 
 to every one, but there must be no combination among persons 
 competent to bid, silencing such bidders, for the tendency to 
 sacrifice the debtor's property is inevitable. (13 Johns. 112; 
 4 Cow. 732; Troup vs. Wood, 4 Johns. Qh. R. 254.) Any 
 agreement or combination, the object and efiect of which are to 
 chill a sale at auction and stifle competition, is illegal, and no 
 
80 NEW TOKK JUSTICE. 
 
 pa^-ty tp the agreement or combination can derive any benefit 
 therefrom. (2 Richardson^ s Eq. B. 355; 1 Story's Eg, Jur. 
 % 293; 2 McLean, 277.) 
 
 Many contracts are illegal by statute, such as usury, and bet^ 
 ting on elections, or on horse races, or on any game of chance. 
 And a contract which is expressly within the prohibition of a 
 statute is void, although the statute is only prohibitory in its 
 terms, and does not declare in so many words that all contracts 
 therein forbidden, shall be void. {Barton vs. Poi-t J. & N. F. 
 P. R. Co. 17 Barb. 397.) A contract founded in part upon an 
 illegal consideration, is entirely void. (5 Qow. 547 ; Burt vs. 
 Place, 6 id. 431.) 
 
 15. CoNTKACTS Made on Sunday. 
 
 It was for some time unsettled whether by the common law 
 contracts made on Sunday were void. It seems now to be well 
 established, that nothing but judicial proceedings are prohibited 
 upon Sunday, by the common law, and that any other business 
 can be transacted on that day, unless prohibited by statute. 
 (8 id. 27; 12 Wend. 59; Boynton vs. Paige, 13 id. 425, 429.) 
 But although contracts may be made on Sunday, yet work per- 
 formed on that day cannot be recovered for, unless the parties 
 keep the last day of the week as the Sabbath, or the work is 
 one of necessity or charity. (1 Hill. 76; 2 Sand. 318; Smith 
 vs. Wilcox, 25 Barb. 341.) 
 
 When the day fixed by a contract for its performance falls on 
 Sunday, the party has Monday in which to perform, except 
 whef e grace is allowed by the custom of merchants; (Salter vs. 
 Burt, 20 Wend. 205); but when the last day allowed by stoiw^e 
 for performing an act falls on Sunday, it must be done on Satur- 
 day. (7 Cow. 147; Browne vs. Wellington, 1 Sand. 664.) An 
 award, being a judicial proceeding, if made and published on 
 Sunday, is void. (Story vs. Elliott, 8 Cow. 27.) 
 
 All shooting, hunting, fishing, sporting, playing, horse-racing, 
 gaming, frequenting of tippling houses, and any unlawful exer- 
 cises or pastimes, ai-e prohibited on Sunday; also all travelling 
 on that day, unless in cases of charity or necessity, or in going 
 or returning from some church or place of worship within the 
 distance of twenty miles, or in going for medical aid or medi- 
 cines, or in visiting the sick, or carrying the mail, or in going 
 
CONTRACTS MADE ON SUNDAY. 81 
 
 express by order of some public officer, or in removing a family 
 or furniture when the removal was commenced on some other 
 day; and all servile labor or work, except works of necessity 
 and charity, unless done by some person who observes some 
 other day as the Sabbath. Every person over fourteen years 
 of age oifending against these provisions forfeits one dollar for 
 each oflFence. (1 B. S. 675, § 70.) If property is exposed to 
 imminent danger, it is not a violation of the statute prohibiting 
 labor on the Sabbath, to preserve it on Sunday and remove it 
 to a place of safety. {Parmalee vs. WilJcs, 22 Barb. 540.) 
 
 Every person exposing to sale, on Sunday, any wares, mer- 
 chandise, fruits, herbs, goods or chattels, except meats, milk 
 and fish, which may be sold before nine o'clock in the morning, 
 forfeits the articles thus offered to sale to the use of the poor, 
 and a Justice may issue a warrant for their seizure, upoh con- 
 viction of the offender. (1 R. 8. 676, § 71.) 
 
 In Massachusetts, where the statute in regard to the observ- 
 ance of the Sabbath is substantially like our own, the following 
 case has been decided: The plaintiff let a horse, on Sunday, to 
 be driven on a pleasure drive to Chelsea. The defendant drove 
 to a different place, and by a route which varied materially 
 from the route to Chelsea, and the horse was killed by im- 
 moderate driving. In an action for the value of the horse, it 
 was decided that the plaintiff could not recover. Letting the 
 horse by the plaintiff was a matter of business, which he could 
 not do on the Lord's day, and travelling with the horse for 
 pleasure by the defendant, was doing what he could not law- 
 fully do on that day. The plaintiff, therefore, acted unlawfully 
 in letting the horse and let him knowingly for an unlawful 
 purpose. No person can maintain an action founded on an un- 
 lawful proceeding, and it caonot be maintained where the 
 plaintiff, in making out his case, is obliged to prove an illegal 
 act as a link in the chain of evidence. (14 Law Reporter {nem 
 series., vol. 4), 361.) 
 
 It has lately been decided in this State that a contract to 
 publish an advertisement in a newspaper issued on Sunday is 
 an agreement to do an act prohibited by the statute relative to 
 servile labor, and the sale of wares and merchandise on that 
 day., and that, therefore, the price cannot be recovered by the 
 
 publisher. {Smith vs. Wilcox, 25 Barb. ^41.) 
 6 
 
82 NEW TOKK JUSTICE. 
 
 16, Fraudulent Contpacts. 
 
 In all contracts, the law presumes that the parties act in godd 
 faith, and where fraud is practised, the party who is deceived 
 is not bound by the agreement, for the fraud vitiates the con- 
 tract. (WiUson vs. JF'orce, 6 Johns. 110.) 
 
 To obtain justice is the object of the law, and fraud is what 
 it most abhors. Misrepresentation is a statement made by one 
 party to a contract to the other, that a thing relating to it is in 
 fact in a particular way, when he does not know it is so, and 
 when in truth it is not as represented; but, in order to avoid a 
 contract, the representation must be both false and fraudulent, 
 and must work an injury to the party. (1 Bouvier's Institutes, 
 301.) Jf a party intentionally misrepresents a material fact, or 
 produces a false impression by words or acts, in order to mis- 
 lead,, or to obtain an undue advantage, it is a case of manifest 
 fraud. (1 Story's Eq^. Jur. \ 192.) 
 
 Fraud must be proved, but it is not necessary that it should 
 be established by direct proof. Resort may be had to cii'cum- 
 stantial or presumptive evidence. The declarations of persons 
 while engaged in accomplishing a fraud, are evidence equally 
 with their acts. So, too, as evidence of good faith, it is com- 
 petent for one to show that he took legal advice, upon a full 
 statement of the facts, before making a purchase. (7 Oow. 301; 
 Waterbury vs. 8turtevant, 18 Wend. 353; 12 id. 41.) 
 
 If a contract be entered into upon a misrepresentation, and 
 the party discovers the fraud before he enters upon the per- 
 formance, and performs instead of rescinding the contract, he 
 is concluded. But, if there is a fraud in a sale on the part of 
 the vendor, the vendee may rescind the contract and recover 
 back the consideration paid. {8ar. & Sch'y R. R. Co. vs. 
 Row, 24: id. 74.) He must first, however, restore, or offer to 
 restore, all he has received under the contract; (2 HtU, 288; 
 1 Ben. 69; Msher vs. Conant, 3 E. D. Smith, 199;) and must 
 do so promptly. {Fisher vs. Fredendall, 21 Barh. 82.) Where 
 however several articles are sold at distinct prices, and one of 
 them proves not to agree with the contract, it is not necessary 
 to return all, but the purchaser may return the defective arti- 
 cle only, and recover back the price of that. {Manning vs. 
 Humphreys, 3 E. D. Smith's C. 218.) Yet, if the thing is 
 
FRAUDULENT CONTRACTS. 
 
 iB valueless, and not the thing contracted for, the vendee may 
 maintain an action without returning it. And where the note 
 of an irresponsible third person was received through false 
 representations, as pai't of the price, and the defendant was 
 informed that the plaintifl' looked to him for the amount, it 
 was held that an offer on the argument of the case to return 
 the note, was sufficient. {Hawkins vs. Appleby, 2 Sand. 421.) 
 A purchase of goods with a preconceived design of not paying 
 for them, is such a fraud as will avoid the sale. (Ash vs. J^ut- 
 nam, IJIill, 302.) - 
 
 A fraudulent concealment, as well as a false representation, 
 renders a contract void. Concealment is the unlawful sup- 
 pression by one of the parties to a contract, of any fact or 
 circumstance which in justice ought to be known. It is only, 
 however, when a party is bound in justice to divulge a fact, 
 that silence or concealment is fraudulent. (1 Bouvier's Insti- 
 tute, 302.) Mr. Justice Cowen says, that the well established 
 rule, in cases of this nature is, that one party must not practise 
 any artifice to conceal defectsf or make any representations for 
 the purpose of throwing the buyer off his guard. (1 Cow. Trea- 
 tise, 851.) Where, however, the means of information relative 
 to facts and circumstances affecting the value of the commodity 
 sold, are equally accessible to both parties, and neither of them 
 says or does any thing to impose upon the other, the disclosure 
 of any superior knowledge which one party may have over the 
 other, as to those facts and circumstances, is not requisite to 
 the validity of the contract. (1 Wheaton, 178.) 
 
 The common law affords to every one reasonable protection 
 against fraud in dealing; but it does not go to the romantic 
 length of giving indemnity against the consequences of indo- 
 lence and folly, or a careless indifference to the ordinary and 
 accessible means of information. It reconciles the claims' of 
 convenience with the duties of good faith, to every extent 
 compatible with the interests of commerce. This it does by 
 requiring a purchaser to direct his attention to those particulars 
 which may be supposed to be within the reach of his observa- 
 tion and judgment. (2 Kent's fJomm, 484.) And a party can- 
 not avoid a contract on the ground that he was induced to 
 enter ijito it by fraudulent representations, where, after dis- 
 covering the ' fraud, he has continued for a length of time iu 
 
84 NEW YORK JUSTICE. 
 
 the enjoyment of any benefit derived from such contra<^. 
 {Eosenbaum vs. Gunter, 3 U. D. Smith, 203.) 
 
 If there be any intentional concealment, or suppression of 
 material facts, in the making of a contract, in cases in which 
 both parties have not equal access to the means of information, 
 it will be deemed unfair dealing, and will vitiate and avoid the 
 contract. As a general rule, .each party is bound to commu- 
 nicate to the other his knowledge of material facts, provided 
 he knows the other to be ignorant of them, and they be not 
 open and naked, or equally within the reach of his observa- 
 tion. He must tell the whole truth fully and fairly. {Niehley 
 vs. Thomas, 22 Barb. 652.) In the sale of a ship which has a 
 defect known to the seller, and which the buyer cannot possi- 
 bly discover, the seller is bound to disclose it, and the conceal- 
 ment is a breach of honesty and good faith. So, too, selling 
 an unsound article, knowing it to be unsound, for a sound 
 price, is fraudulent. (2 Kenfs Gomm. 482.) 
 
 A mere false assertion of value, when no warranty is in- 
 tended, is not fraudulent, becau^ the assertion is a matter of 
 opinion, which does not imply knowledge,^ and upon which 
 men may differ. Every person relies at his peril on the 
 opinion of others, when he has an equal opportunity tovfonn 
 and exercise hisown judgment. (2 Kenfs Gomm. 4.) 
 
 Fraud, says Mr. Justice Cowen, is a crime; and whenever a 
 court and jury are convinced of its existence, to the injury of i 
 another, they may and should give damages, as in other actions 
 for a wrong involving moral guilt, with a liberal and unsparing 
 hand, both to compensate the plaintiff for his extraordinary 
 trouble in vindicating himself against the injury, and to fur- 
 nish a moral lesson by the punishment of the defendant. 
 
 An action lies for a false recommendation as to the credit of 
 one person, by which another sustains damage, if such recom- 
 mendation be made with the intent to deceive and defraud 
 such other person. The information, however, must be com- 
 municated to, and be relied upon by, the party injured, and 
 must cause the damage. The false representation may consist 
 in the suppression of truth, as Veil as in the assertion of false- 
 hood; as, where one recommends another to be worthy of 
 credit, and suppresses the fact that he holds judgments against 
 Mm, and that he is in embarrassed circumstances. Nor is it 
 
FRAUDULENT CONTKAGTS. 85 
 
 necessary, that the person making the false representation 
 should be benefittecl by the fraud, or that the intention should 
 be to delraud any one in particular. (7 Wend. 1 ; ZalrisMe vs. 
 Smith, 3 Kern. 322.) 
 
 An action can be maintained for a false affirmation, where a 
 certificate is given to an individual that he is an honest, indus- 
 trious, reputable, and good citizen, of good morals and habits, 
 and that, in the opinion of the person giving the certificate, 
 the individual recommended would honorably endeavor faith- 
 fully to perform every engagement he should make in any 
 matter of business or crtedit, and where the person recom- 
 mended on the strength of the certificate, obtains goods on 
 credit, on its being shown that the certificate was false, and so 
 known to be by the person giving it. (1 Cow. Treatise. 332;) 
 
 Fraud in the sale of horses is the ground of numerous 
 actions in Justices' Courts. Mr. Justice Cowen, in citing the 
 following case, decided in North Carolina, Says, that it is a 
 true andi most excellent commentary upon the doctrine of 
 fraud in. the sale of horses. (1- Cow. Treatise, 371.) This 
 was an action on the case to recover damages for deceit in the 
 sale of a horse. The plaintiff bought the horse in question 
 ■ from the defendant. Soon after, in riding him from Windsor 
 to Newbern, the horse became perfectly blind. It appeared 
 in evidence, that the defendant had purchased the horse for 
 one' hundred and twenty-eight dollars, about twelve months 
 before he sold him. His eyes were at that time defective. 
 The deffendant applied a remedy, which produced temporai-y 
 relief. But, whenever the horse was rode a journey, the dis- 
 order returned. The defendant, in bringing him from Tennes- 
 see, had discovered that he was getting blind, and was obliged 
 to' drive very moderately to prevent the loss of his eyesight. 
 The plaintiff purchased without being apprised of this defect. 
 The defendant had refused toTvarrant, saying, he was deter- 
 mined never to do so, as he had already been injured by war- 
 ranting his horses^ He observed, while exposing his horse to 
 sale, that the eyes of some horses looked dull, but this was 
 oocaisioned by their having travelled on dusty roads. He 
 afterwards acknowledged, that he knew the hox-se was subject 
 to blindness, but thought he was not answerable, as he had not 
 wawanted. The horse, after he became blind, was sold for 
 
86 NEW YORK JUSTICE. 
 
 sixty dollars. This was the evidence on the part of the plain- 
 tiff. The defendant endeavored, but unsuccessfully, to prove 
 that the horse, after he came to the plaintiff's possession, had 
 received some injury, by which the blindness had been occa- 
 sioned. After arguments by counsel, the Court observed, that 
 this was an action to recover damages for deceit in the sale of 
 a horse. The grounds of the action were, that the property 
 sold was defective, that this defect was known to the seller, 
 and unknown to the purchaser. If the jury believed that the 
 plaintiff did know of the defect at the time he bought the 
 horse, he could not complain. He had sustained no injury 
 from the defendant. It was his own folly. But, it was for the 
 jury to decide whether he did or did not know it. It was not 
 because he might possibly have known it, that the defendant 
 was to be discharged. If, indeed, the defect was so open and 
 visible that he could not well avoid discovering it, then the 
 jury must of course presume against him. In the present case, 
 skill might have been required. The plaintiff might not have 
 . been possessed of this skill. If in fact he was ignorant of the 
 circumstances, though a person better acquainted with horses 
 might have discovered it, the deceit and criminality in the de- 
 fendant were still the same. He was imposing on the plaintiff 
 as sound, what he knew to be unsound. He was not acting 
 with that fairness and plain-dealing which became an honest 
 mail. Again, it had been said the plaintiff placed no confidence 
 in the defendant, that he saw the horse, examined and liked 
 him. Why was the defendant bound to disclose the defects of 
 the property, which it was his interest to sell to the best 
 advantage? He was bound by the rules of good faith and 
 honesty. He was bound, as a man of truth and candor, and 
 of fair dealing. It is a principle in morals, as a maxim in the 
 municipal law, that a suppression of truth is often equal to a 
 suggestion of falsehood; a deception may be as effectually 
 I occasioned by the one as the other. Men must place some 
 / confidence in one another, or there must be an end to civil 
 intercourse. The confidence reposed by the plaintiff in the 
 defendant in the present case, necessarily arose from the nature 
 of the transaction. It was not an unreasonable one. The 
 Courts of that country from which we derive our laws, have 
 lately gone ft great way in enforcing moral obligations, and I 
 
HUSBAND AND WIFE. 87 
 
 tvxisi we shall go at least as far. In a recent case decided in 
 England, A had sold a vessel to B, who agreed to take her just 
 as she stood. It appeared afterward that some of her timbers 
 were unsound, and that this was known to A, but could not 
 have been known to B when he purchased. The court deter- 
 mined, that A ought, in justice and honesty, to have disclosed 
 this defect, and, as he had not done so, should be liable to B 
 in damages. Many persons in this country have considered 
 themselves loosed from the obligations of morality when they 
 were trading horses. It is time to correct this false notion. 
 If the jury believe' the evidence in the present case, and that 
 the plaintiif knew not the unsoundness of the horse at the time 
 he purchased, they will give ample and exemplary damages. 
 
 A recent statute {Laws of 1858, cJiap. 314) provides, that any 
 executor, administrator, receiver, assignee, or other trustee of 
 an estate, or the property and effects of an insolvent estate, cor- 
 poration, association, partnei'ship, or individual, may, for the 
 benefit of creditors or others interested in the estate or property 
 so held in trust, disaffirm, treat 'as void, and resist all acts done, 
 transfers and agreements made, in fraud of the rights of any 
 creditor, including themselves and others, interested in any 
 estate or property held by, or of right belonging to any such 
 trustee or estate. And that every person who shall, in fraud 
 of the rights of creditors and others, have received, taken, or in 
 any manner interfered with the estate, property, or effects of 
 any deceased person, or insolvent corporation, association, part- 
 nership, or individual, shall be liable in the proper action to 
 the executors, administrators, receivers, or other trustees of 
 such estate or property, for the same, or the value of any 
 property or effects so received or taken, and for all damages 
 caused by such acts to any such trust estate. 
 
 ♦ 17. Husband and Wife. 
 
 Actions frequently arise in Justices' Courts growing out of 
 the relation of husband and wife, and especially in reference to 
 the liability of the former for debts contracted by the latter. 
 
 The rights of the husband in the property of the wife have 
 been materially changed in the State of New York, by a law 
 passed in 1848, and amended in 1849. The provisions of the 
 two acts, in brief, are these: 1. The property of a woman, 
 
NEW YORK JUSTICE. 
 
 thereafter marrying, continues her sole and separate property; 
 as if she were a single female, not liable to her husband's debts, 
 nor subject to his disposal; 2. A like provision as to the pro- 
 perty of a woman married at the time of the act,- except so far 
 as the same may be liable for the debts of the husband previ- 
 ously contracted; 3. Any married woman may inherit, or take 
 property by gift, <fec., from any person other than her husband, 
 and hold the same to her separate use, and convey and devise 
 the same, ia the same manner as if she were unmarried; 4. Mar- 
 ried women entitled to trust estates, are authorized to receive 
 conveyances from the trustees, of the trust property, for their 
 separate use; 5. Contracts made in contemplation of marriage 
 remain in full force after the marriage takes place. (^Laws of 
 1848, cAajj, 200; Laws of 1849, chap. 375.) 
 
 A further change in the law was introduced in 1853. An act 
 passed during that year, provides that an action may be main- 
 tained against the husband and wife jointly, for any debt of 
 the wife contracted before marriage, but the execution shall 
 issue against, and the judgment bind, only the separate property 
 and estate of the wife. It further provides, however, that any 
 husband who may acquire any separate property of his wife, by 
 any antenuptial contract or otherwise, shall be liable for her 
 ante-nuptial debts in the same manner as before the act, but 
 only to the extent of the property so acquired. {Laws cf 1853, 
 cAop. 576.) 
 
 The statute passed in 1860, chap. 90; provides that a married 
 woman may bargain, sell, assign and transfer her separate per- 
 sonal property, and carry on any trade or business, and perform 
 any lahor or services on her sole and separate account; and the 
 earnings of any married woman from heij trade, business, labor 
 or services shall be her sole and separate property, and maybe 
 used or invested by her in her own name. 
 
 By the laws of 1862, chap. 172, any marri^ woman, may, 
 wtidliai married, sue and be sued in all matters having relation 
 to her sole and separate property, in the same manner as if she 
 were sole, and she may bring and maintain an action in her own 
 name for damages, against any person or body corporate, for 
 any injury to her person, or character, the same as if she were 
 sole, amd the money recovered shall be her sole and separate 
 properly. And no bargain made by her shall be binding upon 
 
HUSBAND AND WIPB. 89 
 
 hef husband, or render him or his' property in any way liable 
 therefor; nor shall her husband be liable for costs in any suit 
 brought by or against heif. [Moncrief vs. Ward, 25 How. 94; 
 Mann vs. Marsh, 35 Ban-b. 68.) 
 
 These provisions make a great alteration in what has hitherto 
 been understood to be the law affecting the relation of husband 
 and wife. It is not Tvathin the scope of this work to inquire 
 what are the probable changes that will be produced by the 
 provisions referred to. It has, however, been decided, that the 
 aet of 1848, so far as it relates to existing rights of property in 
 married persons, is unconstitutional and void; {WhiteYS. White, 
 ^Barb. 474); and also, that it was not intended to deprive the 
 husband of his estate as tenant by the curtesy in his wife's real 
 estate, in case of his surviving her, unless wh^e she has devised 
 or conveyed it under the statute. In respect, however, to the 
 right of persons married since the act took effect, it has been 
 held in the Court of Appeals (Darby vs. Calligan, 16 JSfew 
 York R. 71) that the object and intent of the act was to give 
 to married women the use, control and right to dispose of all 
 property of every description held by them at the time of the 
 marriage, or acquired subsequently, without regard to the man- 
 ner in which, or the form of the instrument by which it was 
 tEaaisferred or conveyed, provided such transfer or conveyance 
 was not from the husband: and that the act ought to be liberally 
 construed, and so as to give effect to that intent. But the act 
 has not removed all the disabilities of a married woman. It has 
 also been decided in the Supreme Court (Coon vs. Brook, 21 
 Barb. 549) that the statutes of 1848 and 1849 did not enable 
 married women to contract debts or make notes otherwise than 
 as they could do previously. The wife's estate is vested in her 
 during covterture, and, upon her death intestate, after issue born 
 alive, leaving her husband surviving, it descends to her heirs, 
 charged with his rights as tenant by the curtesy. If there is 
 no issue of the marriage born alive, then the estate becomes 
 perfect and absolute in her heirs. {Hurdra. Cass, 9 Barb. 3'66.) 
 
 The acts referred to make no alteration in the statute of 
 descent or distribution. They only authorize a married woman 
 to take, hold, convey, and devise her property, but they make 
 not change as to its disposition in case she dies intestate. 
 (McGosk&ir vs. Golden,^ I Brad.' M.) The power of married 
 
90 NEW YORK JUSTICE. 
 
 Avomen to derise real and personal property is general, and not 
 limited to property acquired subsequently to the act of 1849; 
 {Van Wert vs. Benedict, 1 Brad. 114.) 
 
 By the common law, the husband, upon marriage, became 
 possessed of the chattels real of the wife, su^ch as Ifeases for 
 years. As to the debts due to the wife at the time of her mar- 
 riage, or afterwards, by bond, note or otherwise, and which are 
 termed choses in action, they were not rested absolutely in the 
 husband, but he had power to sue for and recover, or release, 
 or assign them. Their recovery, and reduction to possession by 
 him, was evidence of the conversion of the same to his own use, 
 and the money became, in most cases, absolutely nis own. (2 
 Kenfs Comm. 135.) These principlps of the common law are 
 now necessarily c^nged by the provisions of the statutes re- 
 ferred to. 
 
 The husband was answerable for the wife's debts contracted 
 before coverture, but if they were not collected during the 
 coverture, he was discharged. If the wife was indebted before 
 marriage, and the husband appropriated all her personal pro- 
 perty to himself, and she died before the creditors had collect- 
 ed their debts, the husband was no longer liable, and the credi- 
 tors were left without remedy. If the husband died before the 
 debts were collected, his representatives were not liable: but 
 the wife remained personally liable. (2 Kent's Comm. 143.) 
 
 The husband is bound to provide the wife with necessaries 
 suitable to her situation and his condition in life. (id. 146.) If 
 he iurns her away, he gives her credit wherever she goes, and 
 must pay for necessaries furnished her. (11 Johns. 281; Lock- 
 wood vs. Thomas, 12 id. 248.) If the wife voluntarily leaves 
 ,her husband, though not in an adulterous manner, he is not 
 liable for any of her contracts, though the person furnishing 
 the necessaries had no notice of her elopement, (id.) The 
 adultery of the husband justifies the wife in leaving him, and he 
 remains liable for necessaries furnished her. {SykesYS. Hal- 
 stead, 1 Sand. 483.) The husband is liable, also, for a for- 
 feiture under a penal statute, incurred by the wife. {Hasbroiick 
 vs. Weaver, 10 Johns. 247.) Where a husband and his -wife 
 have separated, and he provides a suitable separate maintenance 
 for her, which is promptly paid, he is not liable even for neces- 
 saries furnished to her. (Baker vs. Barney, 8 id. 72.) The 
 
PARENT AND CHILD. 91 
 
 husband is liable for the torts and frauds of the wife committed 
 during marriage; if committed in his company, or by his order, 
 he alone is liable; if not, they are jointly liable, and the wife 
 must be joined in the suit. Where the remedy for the tort is 
 only damages by suit, or a fine, both are liable ; if the remedy 
 be sought by imprisonment on execution, the husband alone is 
 liable. (2 Kent's Comm. 149.) A husband who is present at 
 tjie execution of a mortgage by his wife, of his personal pro- 
 perty, and assents to th(? execution, is as effectually bound by 
 the moi'tgage as if he executed it himself. It is in effect his 
 mortgage. (Udgerton-vs. Thomas, 5 Sel. 41.) 
 
 ,J8. Parent and Child. 
 
 The liability of parents to maintain their children,, is a fre- 
 quent subject of inquiry before Justices. The inability of chil- 
 dren to provide for themselves, renders it necessary that some 
 persons should maintain them, and nature as well as the com- 
 mon law point out the parents as the most proper persons. 
 
 The statute law of this State has provided, that the father, 
 mother, and children, who are of sufficient ability, of any poor 
 person who is blind, old, lame, impotent or decrepid, so as to 
 be unable by work to maintain himself, shall, at their own 
 charge, relieve and maintain such poor person. In such manner 
 as shall be approved by Jhe overseers of the poor of the town 
 where such poor person may be. (1 R. S. 614, § 1.) This 
 provision is intended to protect the public against the support 
 of parent or child, when either is able to maintain the other. 
 
 A parent, during the minority of his children, is bound to 
 provide reasonably for their maintenaiice and education, and 
 may be sued for necessaries furnished, and schooling given to 
 them, under just and reasonable circumstances. This provision 
 the father is bound to afford, if he has the ability, even though 
 the children have property of their own. {Kent's Oomm. 191.) 
 
 If a parent neglects to furnish his infant child with the neces- 
 saries of life, a third person may supply them, and the parent 
 will be liable for the amoimt; but the third person must take 
 notice of what is necessary for the infant according to his sitya- 
 tion in life. If, however, the infant lives with his parent, and 
 is provided for by him, the parent is not chargeable, even for 
 necessaries. (13 Johns. 480; Matter of JRyder, 11 Paige, 188.) 
 
92 NEW YORE JUSTICE. 
 
 What is necessary for the child, must be left to the discretion 
 of the parent. / 
 
 A recent decision in our own courts, apparently conflicling 
 with this principle of the liability of the parent, holds, that 
 there is no legal liability on the part of a parent to maintain his 
 child, independent of the statute; and that a person who sup- 
 plies an infant with necessaries, cannot maintain an action 
 against the parent therefor, unless the latter has expressly or 
 impliedly contracted to pay the amount. ' {jRaymond vs. Loye, 
 10 Barb. 483.) In that case, the minor left his mother in 
 express disobedience of her commands, to live with the plain- 
 tiflf, who furnished him with clothing, board, schooling, &c.', 
 and there was no evidence to show that the inother was not able 
 and willing to provide suitably for her child. But this decision 
 may perhaps be reconciled with the law as previously held, 
 upon the principle that the relation of parent and child is suffi- 
 cient to imply a contract. 
 
 A step-father is not bound in law to support his step-children; 
 yet, if he acts the part of a father towards them, and does sup- 
 port them, the law ivill not imply on their part a promise to 
 pay him for such support. His assumed relation of father enti- 
 tles liim on the one hand to their sei-vices without compensation, 
 and entitles them on the other to their support and education, 
 without remuneration. {Sharp vs. Q^opsey, 11 Barb. 224; 
 overruling 4 Wend. 403.)] 
 
 A parent is entitled to the earnings of his minor child, where 
 there is no express or implied agreement that payment may be 
 made to the child. {8hute vs. Dorr, 5 Wend. 204.) But if a 
 minor makes a contract for his services on his own account, and 
 the father knows it, and makes no objection, it seems there is 
 an implied assent that the son shall have his earnings. (Arm- 
 sbrong vs. MoJDonaM, 10 Barb. 300.) 
 
 A step-father is not entitled by law to the custody or services 
 of the children of his wife by a former husband, nor is he bound 
 to maintain them. (3 Corns. 312; Bartley vs. Richtmyer, 
 4 Corns. 38.) 
 
 If the parent of guardian do not notify the person employing 
 a minor child within thirty days after the commencment of such 
 service that said parent or guardian claims the wages of such 
 
INFANTS. 93 
 
 minar child, then payment to the minor would be valid. 
 {Laws of 1850, chap. 266; Clinton vs. Roioland, 24 ^aj-5. 634.) 
 
 19. Infants. 
 
 The age of twenty-oi;e is the period of majority for both 
 sexes. Most of the acts of infants are voidable only, and not 
 absolutely void. As a general rule, an infant may affirm or 
 disavow a contract, when he becomes of age; but, if the con- 
 tract is absolutely void, the party contracting with the infant is 
 discharged as well as the infant. Where the deed or contract 
 of an infant is voidable only, it is nevertheless binding on the 
 adult with whom he deals, so long as it remains executory, and 
 is not rescinded by the infant. But, in all such contracts, an 
 infant, on coming of age, is bound to give notice of his disaffijr- 
 mauce of the oontz'act in a reasonable time, and his affirmance 
 may be inferred from his positive acts in furtherance of the 
 contract, or from his tacit assent, under circumstances which do 
 not excuse his silence, (2 Kent's Comrn. 234 to 239.) 
 
 An infant is liable for necessaries, provided the articles are 
 necessary for him under the circumstances and condition in 
 which he is placed; and necessaries for an infant's wife and 
 children are understood to be necessaries for him. But if an 
 infant lives with his father or guardian, and their care and pro- 
 tection are duly exercised, he cannot bind himself even for 
 necessaries. (2 Kent's Oomm. 239; Wailing vs. Toll, 9 Johns. 
 141; 2 Paiffe, 419.) 
 
 If an infant pays money on his contract, and enjoys the bene- 
 fit .of it, and then avoids it when he comes of age, he cannot 
 recover back the consideration paid; and if he avoids an exe- 
 cuted contract when he comes of age, on the ground of infancy, 
 he must restore the consideration which he has received. 
 (2 Kent's Comni. 240; Medbury vs. Watrous, 7 Hill, 110.) 
 
 An infant may have money or other property, independently 
 of his father; and the father may so far emancipate him, as to 
 allow him to labor for others, and enjoy his own earnings, 
 (7 Cow. 93; McCoy vs. Hoffman, 8 id. 85,) but he cannot so 
 far emancipate him, as to render his conti'acts binding. 
 
 Infancy is a personal privilege, of which no one but the 
 infant can take advantage; so that, when an infant is sued with 
 a person of full age, the latter cannot plead the infancy of his 
 
94 NEW YORK JUSTICE. 
 
 J : : 
 
 co-defendaot. {Van Bramer vs. Goopear, 2 Johns. 279; TOow. 
 181.) If a defendant plead infancy, and the Justice is, of 
 opinion that he is not an infant, and the jury find that- he is 
 not, the infancy cannot, on an appeal, be assigned for error, it 
 being against the record and the :^ct as found by the jury. 
 {Ingersoll vs. Wilson^ 3 Johns. 437.) 
 
 For all wrongs infants are liable, the same as adults. They 
 are liable civilly for an assault.; {Bullock vs. Babcock, .3 Wend,. 
 391;) and, if an infant conunits a trespass, without authority 
 of his, father, he is himself answerable, and not the father. 
 (4 Den. 175,; ConJclin vs. Thompson, 29 Barb. 21S.) So, too, 
 an infant is liable for obtaining goods fraudulently, {Wallace 
 vs. Morss, 5 IEll,'B91,) and may be punished by indictment. 
 {People vs. Kendall, 25 Wend. 399.) 
 
 A minor is ineligible to ofiice, and, if he be elected consta- 
 ble, and execute process as such, he is a trespasser. {Green vs. 
 Burke, 23 id. 490.) 
 
 20. Executors and Administrators. 
 
 Executors and administrators are the representatives of the 
 personal property of deceased persons, among which property 
 are the debts due to the deceased, not collected at their deaths. 
 These debts executors and administrators have the power to 
 collect, and for that purpose they may bring actions against 
 the debtors. {2 Kent's Gomm. 415, 416; Lovelass on Wills,4:l.) 
 
 As a general rule, and at common law, independent of sta- 
 tutory provisions, whatever actions a deceased person might 
 have had to enforce the performance of personal contracts, the 
 same actions, for the most part, the executor or administrator 
 may have also. And in such cases the right of action for a 
 breach of the contract,; committed in the lifetime of the de- 
 ceased, in general survives upon his death to his executor or 
 administrator. But when the right , of action is founded upon 
 some wrong done to the person or property of the deceased, 
 for which damages only are recoverable, the rule of the com- 
 mon law is, that the action dies with the person against whom 
 the injnry was committed, and cannot be maintained by his 
 personal representative, {id. 39.) 
 
 This rule has, however, been considerably modified by star 
 tute. It is provided that,; for wrongs done to the "Droperty, 
 
CORPORATIONS. 95 
 
 rights, or interests of another, for which an action might be 
 maintained against the wrong'-doer, such action may be brought 
 by the person injured, or, after his death, by his executors or 
 administrators, against such wrong-doer, in the same manner, 
 and with the like effect, in all respects, as actions founded upon 
 contracts. (2 R. 8. 447, § 1.) But this does not extend to actions 
 for slander, libel, assault and battery, or false imprisonment, 
 nor to actions for injuries to the person of the testator or in- 
 testate of any executor or administrator, (id. ^2.) The Code 
 now provides, however, that, after a verdict shall be rendered 
 in any action for a wrong, such action shall not abate by the 
 death of any party, but the cause shall proceed thereafter in 
 the same manner as in cases where the cause of action now 
 survives by law. (Code, § 121.) 
 
 In this State, all letters testamentary, and letters of adminis- 
 tration, must be issued in the name of the people of this State, 
 and must be tested in the name of the Surrogate or other officer 
 granting the 'same, and must be signed by him, and sealed with 
 the seal of his office, or with the seal of the County Court of 
 the county, when issued by the County Judge, or District At- 
 torney. (2 JR. S. 80, § 55.) $he letters testamentary and of 
 administration granted by any officer having jurisdiction, are 
 conclusive evidence of the autliority of the persons to whom 
 the same may be granted, until the- same are reversed on appeal 
 or revoked according to law. {id. § 56.) , 
 
 21. Corporations. 
 
 Justices of the Peace have jurisdiction of suits by and against 
 corporations. 
 
 A corporation is a franchise possessed by one or more indi- 
 viduals, who subsist as a body politic, under a special denomi- 
 nation, and are vested, by the policy of the law, with the 
 capacity of perpetual succession, and of acting in several res- 
 pects, however numerous the associates may be, as a single in- 
 dividual. The object of the institution is, to enable the mem- 
 bers to act -by one luiited will, and to continue their joint 
 powers and property in the same body, undisturbed by the 
 change of members, and without the necessity of perpetual con- 
 veyances, as the rights of members pass from one individual to 
 another. All the individuals composing a corporation, and 
 
NEW YOBK JUSTICE. 
 
 their successors, are considered in law but as one moral person, 
 papable, under an artificial form? of taking and convejdng pro- 
 perty, contracting debts and duties, and enjoying a variety of 
 civil and political rights. ^ 
 
 One of the peculiar properties of a corporation is the power 
 of perpetual succession; for, in judgment of law, it is capable 
 of indefinite duration. The rights and privileges of j the cor- 
 poration do not determine, or vary, upon the death or 'change 
 of any of the individual members. They continue as long as 
 the corporation endures. (1 Kent's Comm. 267.) 
 
 Corporations are divided into aggregate and sole. A' cor- 
 poration sole consists of a single person, who is made a body 
 corporate and politic, in order to give him some legal capaci- 
 ties and advantages, and especially that of perpetuity, which, 
 as a natural person, he could not have. But the corporations 
 generally in use are aggregate, or the union of two or more in- 
 dividuals in one body politic, with a capacity of succession and 
 perpetuity. (2 Kent's Oomm. 273, 274.) 
 
 Public corporations are such as are created by the govern- 
 ment for political purposes, as counties, cities, towns, and vil- 
 lages. But banking, insurance, canal, bridge, turnpike, rail- 
 road, and other companies, whose stock is owned by private 
 persons, are private corporations, though their objects and 
 operations partake of a public nature, {id. 275.) 
 
 The ordinary incidents to a corporation are : 1. To have per- 
 petual succession, and, of course, the power of electing mem- 
 bers in the room of those- removed by death or otherwise; 2. 
 To sue and be sued, and to grant and receive by their corpor- 
 ate name; 3. To purchase and hold lands and chattels; 4. 1>3 
 have a common seal; 5. To make by-laws for the government 
 of the corporation, {id. 211.) 
 
 Private moneyed corporations are not only liable to be sued 
 like private individuals for breaches of contract, but they may 
 be sued for neglect and breaches of duty, and for damages re- 
 sulting from trespasses and torts committed by their agents 
 under their authority, and the authority of such agent need liot 
 be under seal. {id. 284.) Whenever a. corporation is acting 
 within the range of the legitimate purpose of its institution, all 
 parol contracts made by its authorized agents are express and 
 binding promises of the corporation; and all duties imposed on 
 
PRINCIPAL AND AgBNT. 97 
 
 such agents by law, and all benefits conferrecl at thcii* request, 
 raise implied promises, for the enforeemout of which an action 
 lies against the corporation. And a^ corporation may be bound 
 by contracts not under its corporate seal, and by contracts made 
 in the ordinary discharge of the official duty of its agents and 
 officers, {id. 289, 290.) But corporations, like qatural per- 
 sons, are, of course, bound only by such acts and contracts of 
 their agents as are done and made within the scope of their 
 authority, {id. 292.) 
 
 Every county in this State, and every town in this State, as 
 a body corporate, has capacity, 1. To sue and be sued in the 
 manner prescribed by law; 2. To purchase and hold lands 
 within its own limits, and for the use of its inhabitants; 3. To 
 make such contracts, and to purchase and hold such personal 
 property, as may be necessary to the exercise of its corporate 
 or administrative powers; 4. To make such orders for the dis- 
 position, regulation, or use of its corporate property as may be 
 deemed conducive to the interests of its inhabitants. (1 R. 8. 
 364, § 1; id. 337, ^ 1.) But no county or town possesses or 
 can exercise any corporate powers, except such as ai'e specially 
 given by law, or are necessaiy to the exercise of th^ powers so 
 enumerated or given, {id. 364, § 2; id. 337, ^ 2.) 
 
 All acts and proceedings by and against a county in its cor- 
 porate capacity, must be in the name of the board of supervi- 
 sors of such county; {id. 364, \ 3); and the powers of a county 
 as a body politic, can only be exercised by the board of super- 
 visors thereof, or in pursuance of a resolution by them adopted. 
 {id. § 4.) 
 
 ' All acts or proceedings by or against a town, in its corporate 
 capacity, must be in the name of such town. {id. 337, \ 3.) 
 
 No action lies against a town for an injury occasioned by let- 
 ting a public highway or road reniain out of repair. {Molrey 
 vs. Tbvm of Kmfane, 8 Bai-b. 645.) 
 
 22. Principal and Agent. 
 
 It may be stated generally, that whenever a person hds powet" 
 in his own right to do a thing, he niay do it by an agent. Eveiy 
 person of full age, and not otherwise disabled, has a completfe 
 capacity to appoint an agent. Infants, married women, idiotd 
 aMd lunatics, are eithet wholly or partially incapa;ble of appoint- 
 7 
 
98 
 
 NEW YOEK JUSTICE. 
 
 ing an agent. An infant may authorize another person to do 
 any act which is for his benefit; but he cannot authorize him 
 to do an ^.ct, which is to his prejudice. A married woman may 
 dispose of or incumber her separate estate through an agent or 
 attorney. 
 
 There are but few persons who are excluded from acting as 
 agents, or from exercising authority delegated to them by others. 
 An infant, or a married woman, may act as agent for another; 
 and the latter may act as agent or attorney for her husband, 
 and, with his assent, may bind him by contract. (Hopkins vs. 
 MollineMx, 4 Wend. 465; 5 Seld. 40, 205.) But an idiot, lunar 
 tic, or person otherwise non compos mentis, cannot do any act 
 to bind another, for they have no legal discretion or under- 
 standing to bestow upon the affairs of others. {Snyder vs. 
 Sponable, 1 Hill, 567.) And the same person cannot act as 
 the agent of both parties in making a contract requiring the 
 exercise of judgment or discretion. (iV^ Y. Central Ins. Co. 
 vs. JSr. Pro. Ins. Co. 4 Kern. 85; 1 U. D. Smith's R. 65.) 
 
 One who has a mere authority to act for another, cannot dele- 
 gate his power to a third person, but must execute it personal- 
 ly; for the principal .^elects his agent on account of the confi- 
 dence which he reposes in him personally. {Commercial Bh. 
 vs. Norton, 1 Hill, 501; Story on Agency, \ 13.) Attorneys, 
 auctioneers, brokers, factors, consignees, supercargoes, masters 
 of vessels, &c., are agents, but subject to different liabilities. 
 
 As a general rule, an agent may be appointed by parol, or 
 the, appointment may be deduced from acts and implications. 
 A power to convey real estate must be in writing under seal; 
 and, whenever any act of a principal is required to be under 
 seal, the authority of the agent must be under seal. (12 Wend. 
 525; Worrall vs. Munn, 1 Seld. 229.) The appointment of an 
 agent, when not required by law to be under seal, may be either 
 express or implied. An express appointment may be by a 
 formal written instrument, as a power of attorney; but a more 
 common mode is by some informal written instrument, as by a 
 letter, or written request. But the most usual mode is by an 
 unwritten request, or by implication from the recognition of the 
 principal, or from his acquiescence in the acts of the agent. 
 {Story On Agency, § 54.) A clerk employed in a store, has im- 
 plied authority to make sales, from his ordinary occupation and 
 
PKINCIPAL AND AGENT. 99 
 
 the acquiescence of his principal, A master is bound by the 
 acts of his servant, where the servant acts within the scope of 
 the usual business confided to him. 
 
 Agencies are of two kinds, general and' special. A general 
 agent is authorized to transact all the business of his employer, 
 and hfe may do, generally, what his principal may do, and his 
 acts will be binding on his principal. A special agent is one 
 appointed to do some particular thing, and is limited in his 
 power to the particular thing he is authorized to perform, and 
 cannot bind his principal beyond that. 
 
 A general agent may bind his principal in all things not in- 
 consistent with the nature of his emploATnent. A person is 
 liable for the acts of his general agent, acting within the general 
 scope of his authority; and a third person caimot be affected by 
 any private instructions from the principal to his agent. But 
 the principal is not bound by the acts of a special agent who 
 acts beyond his authority; (15 Johns. 44; Beals vs. Allen, 18 
 id. 363); nor can a special agent in any case bind his principal, 
 where he has disobeyed express instructions. {Scott vs. 
 McGrrath, 7 Barb. 53.) "Where an agent, within the scope of 
 his agency, employs a third person, the principal is liable to 
 the employee, on the contract. {Lincoln vs. Batelle, 6 Wend. 
 475.) 
 
 All agent to sell a particular thing, without any restriction 
 as to terms, is a general agent; [Jeffrey vs. Bigelovj, 13 id. 518;) 
 limiting the agency to a particular business, does not make it 
 special. {Anderson vs. Coonley, 21 id. 279.) It is not neces- 
 sary, to constitute a general agent, that he should have pre- 
 viously done an act ^precisely the same as the one in question; 
 it is enough if he has usually done things of the same general 
 character and effect, with the assent of his principal. {Com. 
 Banh of L. Erie vs. Norton, 1 Hill, 501.) The question is 
 not so much what authority the agent had in point of fact, as 
 what powers third persons had a right to suppose he possessed, 
 judging from his acts and the acts of his principal. (4 Cow. 
 645; Lightbody vs. JST. Am. Ins. Co., 23 Wend. 18.) Where 
 there is an api?arent authority in the agent, the real question is, 
 What power a third persoil, who deals with him, has a right to 
 infer he possesses, from his own acts and those of his principal. 
 {JoHnsdn vs. Jones, 4 Barb, 369.) Though a general agent 
 
100 NEW YORK JUSTICE. 
 
 disregards particular instructions, his acts as agent are, never- 
 theless, binding upon his principaL (Tradesman Bank vs. 
 Astor, 11 Wend. 87.) 
 
 A power to sell does not, of itself, convfey a power to war- 
 rant the title. {Nixon vs. Hyserott, 5 Johns. 58; 7 id. 390.) 
 But an agent authorized to sell an article is presumed to pos- 
 sess the power of warranting its quality and condition, unless 
 the contrary appear; and this, whether the agency be general 
 or special. {Nelson vs. Cowing^ 6 Hill, 336.) A broker au- 
 thorized to sell goods without any special, instructions as to 
 the manner, may sell by sample, and bind his principal by 
 warranty; (6 Cow. 354; 12 Wend. 566; WariTig vs. Mason, 18 
 id. 425 ;) but an authority to sell does not authorize a sale on 
 ctedit, unless it be a known usage of- trade that the particular 
 article shall be so sold. (26 Wend. 192; Delafidd vs. State of 
 Illinois, 2 Hill, 159.) 
 
 The general rule of law is, that where an agent or factor, 
 who is duly authorized to contract for his principal, discloses 
 the fact of his agency, and the name of the person for whom 
 he is acting, he is not personally liable, if he makes the con- 
 tract in such form as to be binding upon his principal, unless 
 it satisfactorily appears that he also intended to bind himself 
 personally. (22 Wend. 244; Colvin vs. Holhrooh, 2 Oom. 126.) 
 But though an agent does not disclose his name in buying for 
 his principal's use, yet if he uses the style of agent in the 
 transaction, and credit is not wholly given to him personally, 
 his principal is liable. {Piftitz vs. Stanton, 10. Wend. 271.) 
 
 Where the acts of the agent will bind his principal, there 
 Ms representations, delarations, and admissions, respecting the 
 subject matter, will also bind him, if they constitute part of 
 the transaction; {Sandford vs. Handy, 23 Wend. 260;) there- 
 fore, if an agent to sell sheep knows that they are diseased,, and 
 sells them without communiqating the fact, the principal is lia- 
 able for the deceit. {Jeffrey vs. JBigrelow, Id id. 518.) A gen- 
 eral authority to an agent to purchase goods on credit, is an 
 authority to make the necessary representations as to the credit 
 and solvency of the principal; and such declarations made by 
 the agent, while applying for the sale, are equallj^ obligatory 
 upon the, principal as if made, by himself (20 Barb. 493;; 
 Asmderson vs. Broafk, 2 E.. D. SinitKs R. 530.) And an 
 
PRINCIPAL AND AGENT. 1^// 
 
 agent having a discretionary power to sell goods and collect 
 the pi'ice, has au implied authority to make any deduction from 
 the original price that could have been made by his principal. 
 {Tm/lor YS. Nusbamn, 2 Duer, 302.) But such agent has no 
 authoritj'' to pledge the goods to secure an antecedent debt duo 
 frbm himself, nor can the purchaser protect himself from the 
 claim of the owner by agreement with the agent to credit the 
 price of the goods against au indebtedness of the agent to 
 himself. {H&nry vs. Marvin, 3 E. D. Smith's R. 71.) A 
 principal who never authorizes or ratifies a wilful trespass of 
 his agent, is iiot liable therefor; {Vanderbi^ -vs. Rich. Tur. Co., 
 2 Com. 479;) but in cases of known agency, the principal alone 
 is liable to third persons for the neglect or omissions of the 
 agent in the business of his agency.^ {Denny v. Manhattan Co., 
 fy:,Den. 639; 8. O. 1 Hill, 115.) If a factor sells goods in his 
 own name, the purchaser may set off any claim he may have 
 against him, in the suit of the principal for the price. {Mit- 
 chell vs. Bristol, 10 Wend. 492.) 
 
 The conduct of an agent on whom no fraud is chargeable 
 ought to receive a liberal and favorable construction. {Drum- 
 mond vs. Wood, 2 Caines, 310.) An agent is liable for fraud 
 or gross neglect; but while acting with good faith, he is bound 
 to exercise ordinary diligence and attention ^ only. Therefore, 
 if goods are consigned to the master of a vessel, on board of 
 which they are laden, and on arriving at the port of destina- 
 tion, not being able to find a purchaser, he leaves the gopds 
 there and returns, he is not liable for them. {Dawler vs. Kea- 
 quick, 1 Johns. Cases, 174.) 
 
 A factor may sell on credit, for the period usual in the mar- 
 ket, unless prohibited by his instructions, and, if he uses due 
 diligence to ascertain the solvency of the purchaser, he will 
 not be responsible, though the purchaser should prove insol- 
 vciot;. (6 Johns. 69; 3 id. 319; Robertsonvs. Livingston, 5 Cow. 
 473); but if he neglects to comply with the directions of his 
 principal, he renders himself liablp. {Epis. Ch. of St. Refer 
 vs. Variant 28 Barb. 644.) If orders are given by a principal 
 to his factor, they must be pursued, or the factor becomes liable; 
 but, if none are given, or if they are not clear and explicit, he 
 isi allowed'to use his best discretion, and is entitled to protec- 
 tion so 'long as he acta according to-tlie best, of his judgjwat, 
 
102 NEW YORK JUSTICE. 
 
 and is innocent of fraud or gross neglect. (3 Gaines, 226.; 
 Bell vs. Palmer,-^ Cotv. 128.) Where goods are consigned to 
 a factor for sale, with specific instructions as to price, he has no 
 right to sell below the price named, to cover his subsequent 
 advances, unless, after due notice and request, the consignor 
 neglects or refuses to pay the advances. (1 Sand. Ill; Blot 
 vs. Bofceau, 3 Corns. 78.) 
 
 An agent who wrongfully refuses to surrender the goods of 
 his principal, or wholly departs from his authority in disposing 
 of them, or who pledges them for his own debt, is liable for 
 their conversion. {f4 Johns. 128; McMorris vs. Simpson, 
 21 Wend. 610.) ' But, where an agent has, by his misconduct, 
 rendered himself liable to his principal, the acquiescence of the 
 principal in his acts will exonerate him; (1 Johns. Oases, 110; 
 Oom. BTc. of Buffalo vs. Warren, 15 N. Y. 577); and where a 
 pi'incipal is informed by his agent of what he has done, the 
 principal mUst express his dissatisfaction in a reasonable time, 
 otherwise his assent will be presumed. (M Johns. 300; 2 CoWi 
 281; Gohh vs. Bows, 10 N. Y. 335.) So, if an agent compro- 
 mises a debt due his principal, with the knowledge of the prin- 
 cipal, who makes no objection, the agent will be responsible 
 - for no more than the sum he received; the silence of the princi- 
 pal amounting to assent, and to a ratification of the act of the 
 agent. [Armstrong, vs. Gilchrist, 2 Johns. Oases, 424.) 
 
 In the absence of any express agreement, the law implies a 
 promise by the agent to render an account to his principal; but 
 whether in a reasonable time, or on demand, is not well settled. 
 (Oooley vs. Betts, 24 Wend. 203.) As a general . rule, it is the 
 duty of a collecting agent, to pay over the moneys he collects, 
 as soon as he receives them. An agent who has collected money 
 for his principal, should give him immediate notice of the. fact; 
 and, after a reasonable time from the receipt of such notice, in 
 which to make a demand of it from the agent, the statute of 
 limitations will commence ruiming, although no demand be 
 made. {Lyle vs. Murray, 4 Sand. 590.) In the case of a fac- 
 tor, an action will not lie for an omission to pay over the pro- 
 ceeds, without a previous demand of them, or instructions to 
 remit, or proof that it is the usual course of business to remit 
 without directions or demand- {Bink vs. Doeson, 8 Barb. 337.) 
 ■ An agent who exceeds his powers in making a contract for 
 
PARTNBESHIP. . 103 
 
 his principal, is liable upon it as his own contract; {Meech vs. 
 Smith, 7 Wend. 315); and. where he acts in his own name, he 
 binds' himself, and not his principal. {Bk. of Rochester \s. 
 Monteath, 1 Den.AQ%) Where a persoji pmrhases goods as 
 agent for another, and the vendor, with full knowledge of the 
 agency, takes the note of the agent for the purchase money, 
 and relies upon his credit, he cannot afterwards resort to the 
 principal. {Hyde vs. Paige, 9 Barb. 150.) 
 
 An agent who makes a contract in behalf of his principal, 
 whose name he discloses at the time to the person with whom 
 he contracts, is not personally liable. (15 Johns. 1; OoJ/vin vs. 
 Holhrook, 2 Oom. 126.) But a party who would excuse him- 
 self from personal responsibility, on the ground that he acted 
 as the agent of another, must show that he communicated to 
 the other party his situation as agent, and that he acted in that 
 capacity, so as to giVe a remedy against his principal. (Mauri 
 vs. Heffeman, 13 id. 58.) A person who purchases for another 
 at auction, but does not, at the time, nor on the day of sale, dis- 
 close the fact that he is an agent merely, and the name of his 
 principal, is bound as purchaser. {McQomb vs. Wright, 4 Johns. 
 Oh. R. 659.) 
 
 Iiy a contract of sale or exchange by an agent, as in all other 
 acts done by him, it is essentially requisite, in order to bind the 
 principal, that the authority should be pursued; otherwise the 
 contract is void. This is especially so, when a purchaser knows 
 that the agent is violating his instructions, and they agree to 
 conceal from the principal the fact of such violation. A trans- 
 fer of property by an agent who exceeds his authority in a 
 material point, passes no title to the thing delivered, and it 
 H^ay be reclaimed by the owner. {Robertson vs. I^etchum, 
 11 Barb. 652-) 
 
 • 
 
 23. Paetnekship. 
 
 A partnership is a voluntary association of two or more indi- 
 viduals, foT the purpose of lawful trade, in which each person 
 is to receive and bear his proportionate ratio of profit and loss. 
 It must of course consist of at least two personsi, and must be 
 voluntary and lawful. 
 
 Ally person of sound mind, and not under any restraint, may 
 enter into a contract of partnership. An infant may so far be 
 
104 NEW YORK JUSTICE. 
 
 a partner as to share in the profits, though, if he chooses to take 
 advantage of his minority, he is not liable for losses; and if, on 
 coiming of age, he does not make known his intention to dis- 
 continue the partnership, he will be liable for all subsequent 
 engagements made by the fii'm. 
 
 Contracts of partnership are usually drawn up in writing;' 
 and, when this is the case," a majority of the parties have not 
 the power of entering into diflferent projects from those ex- 
 pressly specified in the agreement, against the consent of one 
 of their, number, but he may insist upon their acting fully up 
 to the articles of agreement. Partnerships may also be formed 
 by verbal agreement, or by the act of trading jointly together. 
 In such cases, the conduct of the partners must be regulated by 
 the principles of the common law and the custom of trade. 
 (Gary on Partnership, 1 to 3.) A partnership is not limited to 
 commercial business, but may be entered into for any purpose' 
 not in itself illegal or forbidden by law. 
 
 Except in cases of limited or special partnerships, a partner 
 may bind the firm by a contract within the scope of the part- 
 nership business, even though another member dissent; {Wil- 
 kins vs. Pearce, 5 Den. 541); though he cannot bind the firm 
 by a contract not connected with the trade or business. {^Liv- 
 ingston vs. Roosevelt, 4 Johns. 251.) Each partner may buy 
 goods for the use of the partnership, or for ite ordinary busi- 
 ness, and may sell goods belonging to it, and may pledge the 
 partnership property, or borrow money for partnership pur- 
 poses, on the credit of the company. (Story on Partnership, 
 §. 126.) If one partner borrow money for the firm, the firm is 
 liable, whether he apply it in the firm business or not, and 
 though he apply it to his own use. (11 Weiad. 75; Whittaker 
 vs. Brown, 16 id. 505.) And so, where one borrows money, 
 not expressly on his individual credit, and it is shown that it 
 was borrowed for and appropriated to the use of the finn, the 
 firm is liable for it. (Church vs. Sparrow, 5 id. 223.) 
 
 A note made by one partner, in which he says, I promise to 
 pay, but subscribes the partnership name, is binding on the 
 firm, but not on the partner alone who executed it. {Doty vs. 
 Bates, 11 Johns. 544.) But, when a note is given in the name 
 of a firm, by one of the partners, for his private debt, and that 
 ift kniGisvn by thQ person taking the note, the other partners are 
 
PAETNERSHIP. 105 
 
 not bound by such note, unless they have been previously con- 
 sulted, or consent to the transaction; and the biwden of proving 
 such assent of the other partners, lies upon the person who takes 
 the note. {Dob vs. Halsey, 16 Johns. 34.) 
 
 One of two partners cannot bind another by subscribing the 
 firm name to a note as sureties for a third person, without the 
 authority or consent of the other partner; {Foot vs. Sabin, 19 
 id. 154); apd, where co-partners have each repeatedly endorsed 
 the firm name on accommodation notes, with the knowledge 
 and assent of each other, that is no proof of the authority of 
 either to sign the firm name to a note as surety. (6 HiU, 12; 
 Bank of Roch'r. vs. Bowen, 7 Wend. 159.) 
 
 To make one a partner, he must have a vested interest in the 
 profits as such. (16 Barb. 308; Flick vs. Hall, 16 Row. 175.) 
 One who stipulates for a proportion of the gross receipts of a 
 ferry by way of rent, is not a partner; (Heimstreet vs. Howland, 
 5 Den. 68); nor is one who agrees to work another's farm on 
 shares; (Putnam vs. Wise, 1 Hill, 234); nor one employed in 
 business, and to be compensated by a salary and a share of the 
 profits, and not to be liable for losses. {VanderburghYS. Hull, 
 20 Wend. 70.) An agent or servant, who is to obey orders, 
 and has no interest in the capital-stock, will not be a partner, 
 even as to third persons, merely because he is to receive a share 
 of the profits of the business, as a compensation for his services. 
 {id.; 1 Den. 337; Burchle vs. Echhart, ^ Poms. 132.) To con- 
 stitute a partnership, there must be a joint ownership of the 
 partnership funds, and an agreement to participate in the profits 
 and losses of the business. (4 Paige, 148; Ogden vs. Astor, 4 
 Brnid. 311.) 
 
 The acts of a majority of the partners of a firm bind the rest; 
 {Kirh vs. Hodgson, 3 Johns. Oh. R. 400); and a partner may 
 bind the firm by a contract within the scope of the partnership 
 business, though another member dissent. WilMnsvB. Pearce, 
 5 Den. 541.) 
 
 One partner cannot confess a voluntary judgment in the 
 name of his co-partners; (1 Wend. Bll; 9 id. 437; Everson 
 TB. Odlrman,- 1 Abb. 167); nor can one partner, without the 
 consent of the others, introduce a third person as a partner into 
 the concern. {Murray vs. Bogert, 14 Johns. 318.) 
 
 la general one partner cannot bind- another by seal. (2 QaineSi 
 
106 
 
 NEW YORK JUSTICE. 
 
 254; Qaies vs. Gfraham, 12 Wend. 53.) A partner, howevfer^ 
 may, by a sealed instrument, empower a third person to dis- 
 charge a debt due to the firm; {Wells vs. Evans, 20 Wend. 
 251;) and an assignment of an account due to a jjartnership, 
 is valid, though made by one partner only, and under seal. 
 (5 Hill IGZ; Everit vs. Strong, 7 id. 585.) 
 
 Where there is a general partnership, and money is borrowed 
 by one partner on the credit of the firm, whether he misapplies 
 it or not, the firm is liable to the lender. {Onondaga Co. Bank >. 
 vs. De Puy, 17 Wend. 47.) 
 
 A dissolution of partnership is effijcted by the death, insan- 
 ity, or bankruptcy of one partner, and by the expiration, of the 
 partnership; and any partner may, by his own act, dissolve the 
 partnership, unless constrained by the terms of the partnership 
 to continue it for a definite period. {Griswold vs. Waddington, 
 16 Johns. 438.) 
 
 After the dissolution of a partnership, one partner cannot 
 bind the others; and a note executed by one of several 
 partners, in the name of the firm, after a dissolution of the 
 piartnership, will not bind the firm, unless a consent and ratifi- 
 cation by the other members of the firm is proved. {2 Johns. 
 300; 2 Hill, 520; Lusk ys. Smith, 8 Barb. 570.) After'disso- 
 lution, th6 acknowledgment^ by one partner, of a debt due by 
 the firm, will not bind the other partners; (3 Johns. 536: 15 
 id. 409; Oleason vs. Clark, 9 Cow. 57;) nor can one partner 
 bind the others by an acknowledgment of a debt which is not 
 legally or equitably due, or by giving a note for such supposed 
 debt; {Brisbans v. Boyd, 4 Paige, 17;) nor can he bind them 
 by the renewal of a partnership note. {JVational Bank vs. 
 Norton, 1 Hill, 572.) But acts done by one partner, after dis- 
 solution, will bind his co-partners, in respect to all persons who 
 have previously dealt with the firm, and who have not had ac- 
 tual notice of the dissolution. {Van Eps vs. Dillaye, 6 Barb. 
 244; 15 New York R. 471.) 
 
 A partner whose name is not used in the firm, is answerable 
 for debts contracted after his retirement with persons who 
 knew his previous connection, unless they bad notice of his 
 withdrawal. (3 Com. 168; Clapp vs. Rogers, 2 Kern. 283.) 
 After dissolution, all the partners must join in the transfer of 
 a partnership security, in order to vest the title in the trans- 
 
PARTNERSHIP, . 107 
 
 feree. {Goertner vs. Trustees of Canajoharie, 2 Barb. 625.) 
 A partnership subsists after a voluntary dissolution, for the 
 purpose of closing the concern, and if one of the partners 
 thereafter dies, the others take the property and books as sur- 
 vivors, subject to account to the personal representatives of 
 the deceased. (6 Qow. 441; Jacquin vs. Buisson, 11 How. 385.) 
 Surviving partners may carry on a joint business, in the name 
 of their late firm, or in any other name, and limit it to the 
 winding up the business of the late firm, or carry on the busi- 
 ness generally. {Staats vs. Howlett, 4 Ben. 559.) But*they 
 cannot carry on the business generally if the representative of 
 the deceased partner object. {Fenn vs. BoUes, 7 Abb. 202.) 
 
 Payment of a debt by one partner extinguishes it, and the 
 creditor cannot authorize such partner to keep it dive and en- 
 force it by action against his co-partners; (Xe Bagre vs. McCrea, 
 1 Wend. 164;) nor can one partner, who has paid a judgment 
 recovered for a firm debt, call upon the others to contribute, 
 if the partnership accounts are unadjusted. (1 id. 532; Patti- 
 son vs. Blanchard, 6 Barb. 537.) 
 
 One partner may sue the others on the promise to pay a bal- 
 ance struck, though, through accident or otherwise, some tri- 
 fling matters were left unadjusted; (Clark vs. Bobble, 16 Wend. 
 601; Bowel vs. Noye, 23 Barb. 184;) but he cannot maintain 
 an action against the others, except upon an express promise 
 to pay a struck balance. (6 Barb. 537; Attwater vs. Towler, 
 1 Hall, 180.) 
 
 Where two persons sign a joint note, that is no evidence of 
 a partnership between them. {HopMns vs. Smith, 11 Johns. 
 161.) But general reputation, connected with corroborating 
 circumstances, is suflicient, at least prima foMe, to establish the 
 falct of partnership; {Whitney vs. Stirling, 14 id. 215;) when 
 uncorroborated by facts, it is not sufficient evidence of a part- 
 nership. (20 Wend. 81; 22 id. 264; Smith vs. GriJitTi, 3 Hill, 
 333,) 
 
 As a general rule, entries made in the firm books during the 
 continuance of the partnership, are evidence as between the 
 partners, on a partnership accounting; and a partner impeach- 
 ing them piust prove fraud or mistake. (Caldwell vs. Beiber, 
 1.. Paige, 483.) 
 
 Partners are not entitled to charge each other for services 
 
108 NEW YORK JUSTICE. 
 
 rendered in the care and management of the joint property, 
 unless there is a special agreement to that effect. (1 Johns. 
 Oh. iJ. 158; 3 id. 431; Oourson vs. Hamlin, 2 Duer, 513.) 
 
 If a partner withdraws, and uses the partnership funds in 
 his own private trade or speculations, he must account not 
 only for the interest on the money so withdrawn, but for the 
 profits of that trade. {8'tougMon vs. Lynch, 1 Johns. Oh. 467.) 
 
 .Partnership property must first he applied to the payment 
 of partnership debts. {Wilder vs. Keeler, 3 Paige, 167.) 
 
 If, after dissolution, a partner pays demands against the firm, 
 he cannot maintain an action* at law against his co-partners to 
 recover back the whole or any part of the money. (Oridley 
 vs. Bole, 4 Oom. 486.) 
 
 Limited Partnership. 
 
 Limited partnerships, for the transaction of any mercantile, 
 mechanical, or manufacturing business within this State, may 
 be formed by two or more persons. Such partnerships may 
 consist of one or more persons, who are called general partners, 
 and are jointly and severally responsible as general partners 
 are in other cases; and of one or more persons, who contribute to 
 the common stock, in actual cash payments, a specific sum as 
 capital, who are called special partners, and are not liable for 
 the debts of the partnership, beyond the fund so contributed 
 by him or them to the capital. The general partners only are 
 authorized to transact business, and sign for the partnership, 
 and to bind it. To form this partnership, a certificate must be 
 signed by all the partners, containing, 1. The name or firm 
 under which the partnership is to be conducted; 2. The gene- 
 ral natui-e of the business intended to be transacted; 3. The 
 names of all the general and special partners intended, distin- 
 guishing which are general' and which special, and their respec- 
 tive places of residence; 4. The amount of capital which each 
 special partner shall have contributed to the common stock; 
 5. The period at which the partnership is to commence, and 
 when it will, terminate. One or more of the general partners 
 must make an affidavit, that the sums specified in the certificate^ 
 as having been contributed by each of the special partners to 
 the common stock, have been actually, and in good faith, paid 
 in cash, which affidavit must be filed with the original certifi- 
 
PARTNERSHIP. 109 
 
 cate. The certificate must be acknowledged or proved in like 
 manner, as a conveyance of lands, and filed in the office of the 
 clerk of the county in which the principal place of business of 
 the partnership is situated. If it has places of business situated 
 in different counties, a duly certified transcript of the certificate, 
 and of the proof or acknowledgment, must be filed in the 
 clerk's office of every such county. After such registry, the 
 terms of the partnership must be published for at least six 
 weeks thereafter, in two newspapers to be designated by the 
 clerk of the county in wliich such registry is made, and in the 
 senate district or city or town in which the business is carried 
 on. If such publication is not made, the partnership is general. 
 (1 B. S. 764, 765, §§ 1 to 9, Laws of 1862, chap. 476.) The busi- 
 ness of the partnership must be conducted under a firm in 
 which the names of the general partners only are inserted, and 
 the word company must not be used. (id. § 13.) But if there 
 ai'e two or more general partners the fii"m name may consist of 
 either one of such general partners with the addition of the 
 words "and company." (Laivs of 1864, chap. 43, p. 71.) 
 
 The business of the partnership is to be transacted by the 
 general partners exclusivelj^. The special partner must neither 
 be named as a member of the firm, nor transact any business 
 on account of the partnership. He may examine and aivise in 
 relation to the management of the partnership concerns, but he 
 must not transact any business on account of the partnership 
 nor be employed for that purpose as agent, attorney, or other- 
 wise; else he will be deemed a general partner, and be liable 
 as suck (Madison Co. Bh. vs. QouU, 5 Hill, 309.) 
 
 Where a limited partnership is dissolved by the agreement 
 of the pajties before the period fixed for its termination by the 
 original certificate, it continues as to persons crediting the firm 
 without actual notice of such dissolution until the notice 
 required by the statute has been filed, recorded and published 
 for four weeks, as prescribed. And if any alteration is made in 
 the capital or shares, and the partnership is in any manner there- 
 after carried on before the publication of the notice is completed, 
 the special partner becomes liable as a general partner. (Beers 
 vs. Beynolds, 1 K&m. 97.) 
 
110 NEW YORK JUSTICE. 
 
 24, Injuries to the Person, and to Rbae and Personai, 
 ... Property. 
 
 By section fifty-three of the Code, Justices of the Peac,^ have 
 civil jurisdiction in actions for damages for an injury to the 
 person, or to real property, or for taking, detaining,'or injuring 
 personal property, if the damages claimed do not exceed two 
 hundred dollars. This general authority, however, is limited 
 by section fifty-four of the Code, which provides that no Justice 
 of the Peace shall have cognizance of a civil action for an. 
 assault, battery, false imprisonment, libel, slander, malicious 
 prosecution, criminal conversation, or seduction, nor of an actiop 
 where the title to real property shall come in question. 
 
 (1.) Injuries to the Person. 
 
 For any direct unlawful injury to the person, by another, 
 which would entitle the party injured to an action, the Justice 
 has no jurisdiction, for that would be an assault or battery. 
 But, if for instance, the injury is one affecting the health of a 
 person, arising from the sale to him of bad provisions, or from 
 unskilful or negligent treatment by a physician or surgeon, the 
 Justice has jurisdiction. 
 
 (2.) Injuries to Real Property. 
 
 To maintain an action for injury to real property, a person 
 must have actual and lawful possession, or be entitled in re- 
 mainder or reversion, or, in case the premises are vacant, have 
 the legal title, which draws to it the possession. {Holmes vs. 
 8eeley, 19 Wend. 507; ^ Johns. 61; 12 id. 183; 1 id. 511.) 
 Every person who enters upon land without any claim or color 
 of right or title, and keeps possession, is a trespasser; (B Black. 
 Com. 209); but if a person, having a legal title to enter upon 
 lands, enters by force, though he is liable t6 indictment, he is 
 not liable to a private action for damages at the suit of the per- 
 son whom he turns out of possession. (13 Johns. 2S5; 16 ed. 197: 
 Gault vs. Jenkins, 12 Wend. 488.) 
 
 Entering the dwelling-house of another without license is ' a 
 trespass; [Adams vs. Freeman, 12 Johns. 408); and so is every 
 unwarrantable entrj'' by a person or his cattle, on the land of 
 another, whether enclosed or not. (19 id. 385; Tonawanda R. 
 
INJURIES TO PERSON AND PROPERTY. Ill 
 
 a. Co. vs. Munger, 5 Den. 255.) Where a person enters upon 
 land under a parol agreement for its purchase, and cuts timber, 
 and afterwards rescinds the agreement, he is a trespasser. 
 {Suffern vs. Tovmsend, 9 Johns. 35.) 
 
 In an action for trespass by cattle, it is a matter of defence,) 
 that the fence through which the cattle entered, and which the | 
 plaintiff was bound to keep in repair, was defective. {Colden 
 vs. Eldred, 15 Johns. 220.) 
 
 A person having possession, though it has been tortiously 
 acquired, may maintain an action for trespass against one having 
 no title. {Hurd vs. West, 7 Cow. 752.) 
 
 No action can be maintained against a person for building on 
 his own land, whereby his neighbor's lights, not being ancient 
 lights, are obstructed. (13 Wend. 261; JParker vs. Foote, 19 
 id. 309.) Where the owner of two lots, which adjoined each 
 other in the rear, leased one of the lots, without reserving a 
 right to build on the other, and afterwards erected a building 
 so as entirely to exclude the light from the rear windows of the 
 building on the leased lot, it was held that he'might lawfully 
 darken or stop such windows by any erection on the other lot; 
 that such an act was not in derogation of his own grant, and 
 that he could iTot be restrained Trom so doing. (10 Barb. 537; 
 Pickard vs. Collins, 23 Barb. 444.) 
 
 The command of a superior to do an act which amounts to a 
 trespass, is no justification to an inferior; and if the servant 
 obey such conunand, both he and the master will be liable. 
 (^Brown vs. Howard, 14 Johns. 119.) 
 
 The right to land is exclusive; and every entry thereon with- 
 out the owner's leave or license, or the authority of law, is a 
 trespass. A person has no right, without permission, to enter 
 upon the laiid of another, for the purpose of taking away his own 
 property. (6 id. 5; Blake vs. Jerome, 14 id. 406.) If, in such case, 
 he cannot regain possession of his property peaceably, he must 
 reisort to his legal remedy. {JVewkirk vs. Sabler, 9 Barb. 652.) 
 
 The owner of land is, in contemplation of law, in possession 
 of a highway running through it, subject to the public ease- 
 ment, and may maintain an action for an exclusive ajjpropria- 
 tion of the soil of the highway. Proof of possession of land ad- 
 jacent to- a road or street is presumptive evidence of title to the 
 centre of the road. Therefore, no one -has a right to dig up and 
 
H2 NEW YOEK JUSTICE. 
 
 remove the soil from the highway, opposite the land of anothet. 
 But, to maintain an action for injury to land in a road or street, 
 the plaintiff must prove that it is a highway, in order to give 
 rise to the presumption of ownership to the centre; and mere 
 acts of dedication are not sufficient, without proof of acceptance 
 by the public. {Oidney vs. Earl, 12 Wend. 98.) 
 
 A person in possession of a part of a lot, and not showing 
 title to the whole, has not a constructive possession of the resi- 
 due, and cannot maintain an action for cutting down or removing 
 timber from another part; (^AJcin ads. Buck, id. 466); but using 
 an unfenced lot, for a number of years, as a wood-lot for the 
 farm on which the plaintiff lives, is a sufficient actual possession 
 to maintain an action for trespass. {Machm vs. Goertner, 14 
 Wend. 239.) 
 
 All who aid, command, advise or cpuntenance the commission 
 of a tort by another, or who approve of it after it is done, if it 
 is done for their benefit, are liable in the same manner as if they 
 had committed the tort with their own hands. 
 
 When an entry, authority, or license, is given to any one by 
 law, and he abuses it, he is a trespasser ab initio; but when the 
 entry, authority, or license, is given by another, and the party 
 abuses it, he may be punished for the abuse, but will not be a 
 trespasser ab initio. Jn order to make a man a trespasser a6 
 initio, when the law has given the entry, the acts of abuse must 
 be of such a chara,cter, as to be the subject of a trespass, if there 
 were no license. (Adams vs. Rivers, 11 Barb. 390.) 
 
 There are three grounds on which a defendant may entitle 
 himself to a verdict, in an action for trespass on lands, namely: 
 title in himself, title in a third person, or possession out of the 
 plaintiff. {Douglass vs. Valentine, 7 Johns. 273.) 
 
 A person is a trespasser who, instead of passing along on the 
 side- walk of a street, stops on it in front of a man's house, and 
 remains there, using towards him abusive and insulting language, 
 {Adct.'nis \H. Bivers, 11 Barb. 390.) 
 
 Consequential damages frequently spring from trespasses on 
 lancj, or frona negligence in the use of one's own land. If a 
 corporation, authorized by charter, necessarily blasts rocks, and 
 they fall upon adjoining lands, the corporation is answerable 
 for the damage, although negligence or want of skill in the 
 blasting be neither alleged nor proved;; (3 Barb. 42; 2 Oorns, 
 
INJURIES TO REAL PHGPERTY. 113 
 
 159; Bcddiff vs. Mayor of Broohlyn, 4 Coms. 195); and evi- 
 dence to show that the work was done in the most careful man- 
 ner, is inadmissible, where only actual damages are claimed. 
 {Trem&inYS. Odhoes Co., 2 Corns. 163.) But if A sets fire to 
 his own fallow ground, as he may lawfully do, and the fire 
 spreads to the woodland of his neighbor, no action lies against 
 A, unless there was some negligence or misconduct of himself 
 or his servants. (8 Johns. 421, Stuartvs. Hawley, 22 Barb. 619.) 
 
 Where the defendant, through gross negligence, left maplo 
 syrup in his unenclosed wood, and the plaintiff's cow, running 
 at large there without right, drank it, anli was thereby killed 
 it was held that the defendant was not liable. {Bush vs. 
 Brainard, 1 Cow. 78.) The reason is, the cow had no right 
 to be there. No one can recover for an injury arising even 
 fi-om gross negligence in the lawful use of another's property, 
 unless he is free from negligence himself. 
 
 Where a person, in the exercise of ordinary care and skill, in 
 making an excavation for the improvement of his own lot, digs 
 so near the foundation of a building on the adjacent lot, as to 
 cause it to crack and settle, he is not liable for the injury, unle, s 
 the building is erected upon an ancient foundation, and enti- 
 tled, by grant or prescription, to exemption from such injury, 
 or has been granted, in its present situation by the owner of the 
 lot on which the excavation is made, or by those frpm whom he 
 derives title. (17 Johns. 92; Lasala vs. Holhrooh, 4 Paige, 
 169.) But for an injury resulting from negligence and careless 
 excavation, a party is liable. (1 Den. 466; 2 Barb. 165; Far- 
 rand vs. Marshall, 21 Barb. 409.) 
 
 I have a natural right to the use of my land in the situation 
 in which it was placed by nature, surrounded and protected by 
 the soil of the adjacent lots, and can maintain an action against 
 a man who digs a pit on his own land so near to mine that my 
 land falls into the pit. But my neighbor has a right to dig a 
 pit on his own land, if necessary to its convenient or beneficial 
 use, when it can be done without injury to my land in its na|;u- 
 ral state; and I cannot deprive him of this right by erecting a 
 building on my lot, the weight of which will cause my land to 
 fall into the pit- [Lasala vs. Holhrooh, 4 Paige, 169.) 
 
 Although one build on his own land in an exposed and 
 haaaidous situation, adjoining a blacksmith's shop, or the track 
 
114 NEW YORK JUSTICE. 
 
 of a railroad, or the usual course of a steamboat, he may, never- 
 theless, recover, in case of injury resulting from the negligence 
 of the smith, or the agents and servants of the railroad com- 
 pany, or the ovs^ners of the steamboat. {Cook vs. The Cham- 
 plain Trans. Co. 1 Den. 91.) 
 
 The maker of a negotiable promissory note can maintain an 
 action for its conversion against a person who, before it has any 
 legal inception, negotiates it to a bona fide holder for value. 
 {Decker vs. Matthews, 2 Ker. 313.) 
 
 A recent statute {Laws of 1855, chap. 428), provides that, 
 whenever any real or personal property is injured in conse- 
 quence of a mob or riot, the city or county shall be liable to 
 an action in behalf of the owner, for, the damages sustained. 
 The action is to be prosecuted in the same manner as other 
 actions; and, on final judgment, and on filing with the treasm-er 
 of the city or county a certified copy of the judgment roll, it 
 becomes his duty to pay the judgment. But the owner cannot 
 recover if guilty of any negligence or of any failure in dili- 
 gence to prevent the damage. He must have notified the mayor 
 or sheriff of any threats made to injure the property in ques- 
 tion. And in case he gives such notice and the officer neglects 
 to take all legal means for the protection of the property 
 threatened, the action may be brought against the officer instead 
 of the city or county, at the option of the plaintiff. The act 
 does not prevent the party injured from maintaining an action 
 against the participants in the riot. Actions under this act 
 must be brought within three months after the loss or injury. 
 Another late statute {Laws of 1853, chap. 573), provides that 
 any person who shall maliciously injure any work of art, struc- 
 ture, plant, &c., &c., shall be deemed guilty of misdemeanor, 
 and punished; and shall also be liable to an action, in which 
 the party injured may recover five times the actual damages 
 sustained. 
 
 (3.) Injuries to Personal Property. 
 
 Personal property may be injured or destroyed, or a person 
 may be deprived of its possession, so as to entitle him to am 
 action, but he must, at the time of the injury,, have either 
 actual or constructive possession of the property. {Putnam vs. 
 Wiley, 8, Johns. 432; 11 id. 285.) It is not necessaiy that one 
 
INJURIES TO PERSONAL PROPERTY. 115 
 
 should be the actual owner, but a right to reduce the property 
 to actual possession is sufficient to entitle a party to maintain an 
 action; (1 Wend. 466; Hoyt vs. Van Alstyne, 15 Barb. 568;) 
 and bare possession of a chattel is sufficient to maintain an ac- 
 tion for a trespass against a wrong doer. (13 Johns. 141, 561; 
 Hurd vs. West, 7 Cow. 752.) But a bailee of goods for keep- 
 ing, cannot maintain an action for taking them on an execution 
 against the owner, though they be exempt from execution, 
 (1 Cow. 114; and see Foster vs. Pettibone, 20 Barb. 350.) 
 
 When an injury is done to a plaintiff's pei'son or property, 
 by an attorney, surgeon, physician, tailor, smith, barber, or 
 other person of a trade or profession, acting ignorantly, care- 
 lessly, or maliciously, an action will lie. (1 Oow. Treatise, 
 376; Bull vs. Colton, 22 Barb. 94.) And it may be stated, as 
 a general rule, that where one does an illegal or mischievous 
 act, which is likely to prove injurious to others, and when he 
 does a legal act in such a careless and improper manner that 
 injury to third persons may probably erifeue, he is answerable 
 for all the consequences which may directly and naturally re- 
 sult from his conduct. {Vandenburgh vs. Truax, 4 Den. 464.) 
 
 A wilful or grossly negligent injury is never tolerated; but 
 where it arises from mere inadvertence, and there is an equal 
 or greater neglect on the part of the injured, no action can be 
 maintained. {Hartfield vs. Roper, 21 Wend. 615.) Where the 
 plaintiff's negligence contributed to the accident, he cannot 
 recover; and in no case can an action be sustained, if the wrong- 
 ful act of the plaintiff co-operated with the misconduct of the 
 defendant to produce the damages sustained; and this is so, 
 whether the plaintiff's act was negligent or wilful. (21 Wend. 
 188; 6 Hill, 592; Clark vs. 8. & JSf. R. R. Co. 11 Barb. 112.) 
 
 If a person is entitled to take property into his actual pos- 
 session whenever he pleases, that is sufficient- to enable him to 
 maintain an action for trespass, for its taking, against a third 
 person. (^Alcin ads. Buck, 1 Wend. 466.) 
 
 A landlord may have an action against his tenant, for trees 
 wi'ongfully cut by the latter during the term, and removed by 
 him from the premises. {^Scheifherhom vs. Buell, 4 Den. 422.) 
 If A's bees swarm, and take possession of a hollow tree on 
 B's land, A keeping them in sight, and tracing them there, and 
 C fell the tree for the honey, to the destruction of the bees, A 
 
116 NEW YORK JUSTICE. 
 
 can maintain trespass against him. {Goff vs. Kilts, 15 Wend. 
 550.) If A's lamb, being in the highway, gets into a flock 
 which B is driving by, and B, knowing it, drives the whole to 
 a yard, and leaves' them to be taken away by a drover, A can 
 recover the valufe of the lamb from B, the injury being volun- 
 tary. {^Brovmell vs. Flagler, 6 Hill, 283.) 
 
 Where a person, with a deadly weapon, pursued a boy, with 
 whom he had quarreled, into a store, and the boy, in his terror, 
 ran against -a wine cask, and spilled the wine, the person who 
 pursued the boy ^was held liable for the damage, upon the 
 principle that one who does an illegal or mischievous act, is 
 responsible for the consequences which result. {Vandenhurgh 
 vs. Tt'uax, 4 Den. 464.) If a man, without just cause, aims a 
 blow at his enemy, which, missing him, falls upon his friend, 
 it is a trespass upon the friend, and may be murder, if a deadly 
 weapon is used, and death ensues; or if, in attempting to^teal 
 or destroy the property of another, he unfortunately wound 
 the owner, or a third person, he must answer for the conse- 
 quences, although he did not intend that particular mischief 
 And, although no mischief of any kind be intended, yet if a 
 man do an act which is dangerous to the person or property of 
 others, and which evinces a reckless disregard of consequences, 
 he will be answerable civilly, and iii many cases criminally, 
 fbr the injuries which may follow; as, if he discharge a gun, 
 or let loose a ferocious or mad animal in a multitude of people, 
 or throw a stone from the house-top into a street where many 
 are passing, or keep a large quantity of gunpowder near the 
 dwelling of another. In these, and such like ^ cases, he must 
 answer for any injury which may result, from his misconduct, 
 to the pei"sons or property of others. And, if the act was so 
 imminently dangerous to others, as to evince a depraved mind, 
 regardless of human life, and death ensues, it will be murder. 
 (4 Den. 464, supra, per Beonson, J.) 
 
 Any person is justified in killing a dog which has been bitten 
 by a mad animal, or a ferocious and dangerous dog which is 
 permitted to run at large by its owner, or escapes through negli- 
 gent keeping. (13 Johns. 31* Hinckley vs. Emerson, 4 Cow. 
 851.) A person is justified in killing a dog which is chasing 
 and killitog sheep, or destroying a fowl,_on his land. (9 Johns. 
 233; Fairchild vs. Bently, 30 Barb. 147.) Where one dog 
 
INJURIES TO PERSONAL PROPERTY. 117 
 
 injures or kills another, the owner of the latter clog can only 
 recover damages from the owner of the former, by proving, what 
 ever may have been the character and habits of defendant's dog, 
 that he was in the wrong in that particular fight. ( Wilei/ vs. 
 Slater, 22 Barb. 506.) A confession that one lulled a dog, 
 which assaulted him in the highway, must be taken together, 
 and amounts to a justification. (^Credit vs. JBroum, 10 Johns. 
 365.) 
 
 It is a well-settled principle, that in all cases where an action 
 is brought for mischief dojie to the person or personal property 
 of apother, by domestic animals, such as horses, oxen, cows, 
 sheep, swine, and the like, the owner must be shown to have 
 had notice of their viciousness, before he can be charged; but 
 this I'ule does not apply where the mischief is done by such an 
 animal while committing a trespass upon the close of another, 
 (.4 JDen. 127; Van Leuven vs. Lake, 1 Corns. 515.) One who 
 owns or keeps an animal of any kind, is liable for an injury the 
 animal may do, only on the ground of some actual or presumed 
 negligence on his part. It is essential to the proof of negli- 
 gence, and sufficient evidence thereof, that the owner be shown 
 to have had notice of the propensity of the animal to do mis- 
 chief. Proof that the animal is of , a savage and ferocious na- 
 txrre, is equivalent to proof of express notice. 
 
 The owner of fifteen hives of bees kept them in hjs yard ad- 
 joining the public highway, and the plaintiff'^ horses, while 
 travelling along the highway, and passing the pl^ce where the 
 b^es were kept, were attacked and stung so severely that one 
 of them died, and the other was greatly injured. It appeared 
 thgit the bees had been kept in the same place for eight or nine 
 years without -doing any other injury. It was held that the 
 owner of the bees was not liable; at all events, not for any ac- 
 cidental injury they might do. {Earl vs. Van Alstyne, 8 Barb. 
 630.) 
 
 If a dog be in fact ferocious, at large, and a terror to the 
 neighborhood, the public would be justified in dispatching him 
 at once; and it would seem not to be necessaiy to prove that 
 the owner had knowledge of the vicious disposition of the dog. 
 il^ax^vell vs. Palmertor),, 21 Wend. 407.) If a man knowingly 
 keep qn his premises a, ferocious dog, in such a way that he will 
 worry an ordinary tresp^ser in the daytime, he is liable for an 
 
118 NEW YORK JUSTICE. 
 
 injury inflicted by the clog upon such trespasser. {Loomis vs. 
 Terry, 17 id. 496.) Evidence that the plaintiff was bitten by 
 the defendant's dog, that the dog had previously bitten others 
 and that the defendant had nbtice of it, being uncontradicted, 
 requires a verdict for the plaintiff. {BwMey vs. Leonard, 4 
 Den. 500.) 
 
 Though a dog be vicious, no one but his master has a right 
 to kill him, except when he chases and kills one's domestic ani- 
 mals on his land; or, under the statute, when he attacks sheep; 
 or, when he is ferocious and attacks persons, in which case he 
 is^a common nuisance, and any one may destroy him. {Kinley 
 vs. Emerson, 4 Gow. 351.) If a dog is in the habit of howling 
 about one's house by night, so as to be a nuisance to his family, 
 he may, after reasonable notice to the owner, be killed. (Brill 
 vs. Flagler, 23 Wend. 354.) Where dogs owned by different 
 persons worry and kill sheep, a joint action cannot be main- 
 tained against the separate owners. {Van Steenburgh vs. Grayj, 
 17 Wend. 562.) 
 
 It is an act of negligence to suffer cattle to be at large in a 
 highway at rail-road crossings. Therefore, wh^re the owner 
 of a cow suffered her to go at large in the highway, and upon 
 a rail-road track, at the usual time for the passenger train of 
 cars to pass, and the cow was killed by the train of cars, it w9s 
 held that the owner could not recover the value of the cow in 
 an action against the rail-road company. Where cows are tres- 
 passers upon a rail-road, their owners cannot maintain "an action 
 against the rail-road company for running over and killing them 
 by their passenger cars, even if the death of the cows was occa- 
 sioned by the gross negligence of the defendants. {Clark vs. 
 S. & U. R. R. Co. 11 Barb. 112.) 
 
 Every unwarrantable entry by a person or his cattle, on the 
 land of another, is a trespass. This is so at common law, though 
 the entry be by cattle coming from the highway, and the land 
 be unfenced; and it is no excuse that the owner exercised care 
 and prudence to keep them in his own inclosure. The purpose 
 of fences, in the view of the common law, is to keep the own- 
 er's cattle in, and not the cattle of others ovt. But, if cattle 
 driven along the highway, escape into an adjoining field, agaiist 
 the owner's will,. the rule does not apply, and the trespass is 
 excused. Where a proprietor of land is bound by prescriptioia 
 
PENALTIES AND FOKFEITTJRES.' 119 
 
 to fence against cattle lawfully in the highway, he cannot main- 
 tain a trespass for an entry of cattle arising out of a defect in 
 his fences. If .domestic animals stray upon land where they 
 have no right to be, and are injured by negligence of the 
 owner of the land, an action will not lie by the owner of the 
 animals against the owner of the land. {Tonawanda JR. JR. Co. 
 vs. JMungrer, 5 Den. 255.) 
 
 25. Penalties and Forfeitures. 
 
 .Justices of the Peace have jurisdiction of actiolis for penal- 
 ties, to an amount not exceeding two hundred dollars, whether 
 brought by the individuals or by the people. {Code, §§ 53, 54.) 
 Any alderman of the city of Albany may try any action brought 
 to recover a penalty to the amount of twenty-five dollars or 
 under, incurred under any of the by-laws of said city, but has 
 no other civil jurisdiction as a Justice. (2 R. S. 227, § 10.) 
 ^ By the provisions of the Revised Statutes, when a pecuniary 
 penalty or forfeiture is specially granted by law to any person 
 injured or aggrieved by any act or omission of another, the 
 same may be sued for and recovered in an action of debt, or in 
 an action ,of assumpsit; and if it be a forfeiture of any pro- 
 perty, it may be sued for and recovered in an action of trover, 
 or other appropriate action, (id. 480, § 1.) The forms of all 
 actions being abolished by the Code, (§ 69,) the claims recover- 
 able in the actions thus specified must be prosecuted in a civil 
 action, and a complaint containing the substance of what was 
 formerly required in a declaration in any one of those several 
 actions will be a sufficient compliance with the statute. In an 
 action on a statute making it penal to cut and carry away trees 
 from the lands of the State, and creating a penalty of $25 for 
 each tree cut, it may be alleged in the complaint that the de- 
 fendant is indebted in a sum equal to four penalties, and the 
 plaintifi" may recover any amount of penalties which it can be 
 proved the defendant has incurred, though the same be less 
 than four. (People vs. McFadden, 13 Wend. 396.) 
 
 Every such action, and every action brought by any public 
 officer for the recovery of any penalty or forfeiture, must be 
 prosecuted and conducted in the same manner as other personal 
 actions in all respects, except as otherwise specially provided; 
 and is subject to all the proyisions of law, concerning. amend- 
 
120 NEW YOBK^ JUSTICE. 
 
 ments of the process, pleadings, and records therein, and con- 
 cerning the abatement of such suits by death or otherwise, and 
 all other provisions concerning personal actions, except where 
 otherwise specially provided. (2 R. 8. 480, 481, §§ 2, 3.) 
 
 In various town charters, however, special provisions have 
 been made, intending to facilitate a recovery in actions brought 
 to recover penalties. 
 
 By the act incorporating the village of Homer, {Laws of 
 1857, chajp. 537,) it is provided that in any action brought by 
 the corporation to recover any penalty or forfeiture imposed 
 by the act, or by any ordinance, Ac, enacted under it, it shall 
 in all cases be sufficient, without setting forth any special mat- 
 ter, to 4ll(sge in the complaint, that the defendant is indebted 
 to the said corporation in the amount of such penalty or for- 
 feiture, whereby ar action has accrued according to the provi- 
 sions of the act, naming the subject thereof, and referring 
 briefly to the section or other division of the rule, regulation, 
 ordinance or by-law, for a violation of which the action is 
 brought, and also to the date of its passage by the trustees. 
 And process for the commencement of any such action, shall 
 have an endorsement thereon, to the effect that it is issued to 
 enforce a penalty imposed in accordance with the provisions 
 of the act incorporating the village of Homer, and no other 
 endorsement thereon shall be necessary. 
 
 The same provision is made by law in respect to the village 
 of Camden; {Laws of 1857, cAop. 754;) and one analogous on 
 most points, in relation to Syracuse. (Laws of 1854, chap. 28.) 
 
 In respect to the village of Carthage, it is enacted, (Laws of 
 1857, chap. 584,) that the trustees may, for the violation of any 
 by-law, rule or regulation which they are authorized to make, 
 sue for and recover such penalty as they may have prescribed 
 therein, in the corporate name of the village, before any Justice 
 of tbe Peace, in an action of debt. The pleadings shall be gen- 
 eral, and either party may give the act or any other special 
 matter in evidence. 
 
 In the act to amend and consolidate the several acts relating 
 to the village of Athens, (Laws of 1857, chap. 622), it is provi- 
 ded that in an action brought to recover a penalty for the vio- 
 lation of any provision of the act or any by-law, regulation or 
 ordinance of the village, it shall only be necessary to state in 
 
PENALTIES AND FORFEITURES. 121 
 
 ^^-'-'^ - - — ■ ■ ' ■ 
 
 the complaint the section of the act, or the title and section of 
 the by-law, regulation or ordinance alleged to be violated, the 
 time of its adoption, and the amount of the penalty clgimed; 
 and any bther fact may be given in evidence without being 
 Statfed in the complaint. The same provisions exist in relation 
 to the towns of Ulster, (Laws of 1855, chap. 262), Cohoes, 
 {Laws of 1855, chap. 352), and Mexico. {Laws of 1855, 
 cJiap. 374.) 
 
 In respect to the village of Yonkers, it has been enacted, 
 {Laws of 1837, chap. 767), that all actions {Laws of 1855, 
 ehap. 330) brought to recover any penalty or forfeiture under 
 the act or the ordinances, by-laws, rules, resolutions or regular 
 tdons made in pm'suance of it, shall be brought in the corpora.te 
 name of said village, and in such action it shall be lawful to 
 declare or complain generally for such penalty or forfeiture, 
 stating the section of the act or by-law, ordinance, rule, resolu- 
 tions or regulations, under which the penalty or forfeiture is 
 elaimed, and to give the special matter in evidence. - The defen- 
 dant may plead or answer, denying generally the allegations 
 declared or complained of, and give the special matter in evi- 
 dence also. The first process in any such action brought before 
 a Justice of the Peace, may be by summons or warrant, and 
 execution may be issued immediately on the rendition of judg- 
 ment. If the defendant in any such action has no goods or 
 chattels, lands, or tenements whereof the judgment can be col- 
 lected, the execution shall require, where it shall appear that it 
 was for a second offence, the defendant to be imprisoned in the 
 jail of Westchester County, for a term, to be fixed by said Jus- 
 tice, not exceeding sixty days. Substantially the same provi- 
 sion has been made relative to the city of Buffalo. 
 
 "Whenever any penalty or forfeiture is recovered which is not 
 specially granted by law to the party aggrieved; or to any offi- 
 cer; 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 per- 
 son who will prosecute; or which is not otherwise specially 
 appropriated; the same must be paid into the treasury of the 
 State, for the use of the people thereof {id. 481, ^ 3.) 
 
 Every suit or proceeding in a civil case, instituted in the 
 name of the people of this State, by any public officer duly 
 [authorized for that purpose, is subject to all the provisions of 
 
122 NEW YORK JUSTICE. 
 
 law respecting similar suits or proceedings, when instituted by 
 or in the name of any citizen, except where provision is other- 
 wise expressly made by statute; and in all such suits and pro- 
 ceedings the people ';!' this State are liable to be non-suited, 
 and to have judgments of non pros, or of discontinuance entered 
 against them, in the same cases, in like manner, and with the 
 same effect, as in suits brought by citizens, except that no exe- 
 cution can issue thereon. (2 R. 8. 552, § 13.) 
 
 An action fdr the recovery of a penalty or forfeiture imposed 
 by statute, must be tried in the county where the cause of 
 action or some part thereof arose; except that, if the offence for 
 which the penalty of forfeiture is imposed, was committed on a 
 river, lake, or other stream of water situated in two or more 
 counties, the action to recover the penalty or forfeiture may be 
 brought in any county bordering on such river, lake or stream, 
 and opposite to the place where the offence wa^' committed; 
 {Code, % 124) and a recovery in such action by a public oflScer 
 will be a bar to any other suit by any other public officer, for 
 the same offence. (2 R. 8. 481, § 4.) 
 
 Where any penalty or forfeiture is given by law to any per- 
 son who will sue for the same, such suit must he, brought in the 
 name, of the person commencing the same, who may appear by 
 attorney; and it must be conducted and prosecuted in all res- 
 pects in the same manner as, and will be subject to the provi- 
 sions of law concerning, personal actions, {id § 5.) No such 
 suit will be deemed to be commenced until process is actually 
 delivered to an officer to be executed; which process must not 
 be redelivered to the plaintiff in any case, but must be returned 
 to the Court from which the same issued; and no such action 
 can be comprojnised or compounded, without leave of the Court 
 in which it shall be pending, {id. § 6.) 
 
 Upon every process issued for the purpose of compelling the 
 appearance of the defendant to any action for the recovery of 
 any penalty or forfeiture, must be endorsed a general reference 
 to the statute by which such action is given in the following 
 form: "According to the provisions of the statute regulating 
 the rate of interest on money," or, "According to the provi- 
 sions of the statute concerniug sheriffs," as the case may require, 
 or in some other general terms referring to such statute. (;id. 
 \ 7.) A reference thus: "According to the act ' of the internal 
 / 
 
PENALTIES AND FORFEITURES. 123 
 
 police of the State,' " is not a compliance with the statute. At 
 least the number of the title, if not th« particular section under 
 which the suit is brought, should be specified. (17 Wend. 85; 
 4 Ben. 268; Petry vs. Tynen, 22 Barb. 138; 21 id. 320.) 
 But a reference, "According to the proceeding's of" (Andrews 
 vs. Harrington, 19 Barb. 343), instead of provisions, has been 
 held a substantial compliance with the law. 
 
 In an action to recover any. penalty or forfeiture given by 
 any statute, the complaint must state that the action accrued 
 according to the provisions of such statute, naming the subject- 
 matter thereof in the following form: 'According to the pro- 
 visions of the statute concerning sheriffs," naming the section, 
 title, and chapter of such statute, as the case may require, or in 
 some other similar tei-ms referring to such statute. (2 B. S. 
 482, §§ 10, 11.) If an action be brought to recover any goods 
 or other things forfeited by the provisions of any statute, the 
 complaint must contain a like reference to the statute according 
 to the provisions of which the forfeiture is claimed, (id. ^ 12;) 
 And the complaint in a penal action must also set forth the 
 particular acts or omissions by which the penalty was incurred. 
 (People vs. Brooks, 4 Ben. 469.) 
 
 In any suit for a penalty or forfeiture brought by any person 
 other than the party aggrieved, or other than any public officer, 
 if a former recovery or acquittal, or other bar to such action, be 
 pleaded, the plaintiff may reply, that such- recovery, acquittal 
 or bar was had by covin and fraud; and, if such replication be 
 confessed or established, the plaintiff will recover in such 
 action, notwithstanding such plea. (2 B. S. 482, ^ 14.) 
 
 An action of debt to recover a penalty imposed by the by- 
 law of a municipal corporation, may, it would seem, be brought 
 in a Justice's Court, although the statute authorizing the by- 
 law contains no provision- conferring jurisdiction upon Justices 
 of the Peace. (Walker vs. Oruikshank, 2 Hill, 296.) 
 . : Tyhere any act is prohibited by law, under a penalty not ex- 
 ceeding any given sum specified in such law, an action may be 
 brought for such specified sum; and the jury or Justice before 
 whom the trial is had, must award such sum so specified to the 
 plaintiff, or such part thereof as shall be deemed proportioned 
 to the offence. ' 
 
124 NEW YORK JUSTICE. 
 
 A penalty cannot be raised by implication, but must be ex- 
 pressly created and imposed. {Jones vs. Estes, 2 Johns. 379.) 
 
 Only one penalty is recovei'able for one offence or entire 
 transaction, and not a separate penalty for each particular act 
 into which the offence may be divisible; Mayor of N. Y. vs. 
 Ordrenan, 12 Johns. 122); and, though several join in commit- 
 ting it, they are jointly liable for one penalty. {6 Cow. 678; 
 4 Dem 374; Palmer vs. Conly, 2 Cotns. 182.) 
 
 "Where double or treble value is given by statute, the proper 
 practice is, for the jury /to iind the single value, and the Court 
 doubles or trebles it. {Warren vs. DooUttle, 5 Corns. 678.) 
 
 Where a statute infliets a penalty, and gives one moiety to 
 the people and the other moiety to the person prosecuting for 
 the same to effect, a payment of the judgment to the plaintiff is 
 authorized, and discharges the defendant. The plaintiff may 
 thereupon discharge the judgment, and is a trustee for the peo- 
 ple's moiety. {Gaswell vs. Allen, 10 Johns. Il8.) 
 
 • Whenever an action is brought to recover any penalty im- 
 posed by law for taking any rails, boards, planks or staves, 
 from the banks or vicinity of a canal, in which a Justice is 
 authorized to direct the detention of any canal boat, (1 R. S. 
 247, § 172), he cannot endoa'se such direction on any warrant, 
 unless a bond be e:^cuted and delivered to him, in the penalty 
 ■ of at least one hundred dollars, with one or more sureties, to 
 be approved by the Justice, conditioned that such action shall 
 be prosecuted to judgment with all convenient speed, and that, 
 if judgment be rendered in favor of the defendant, the obligees 
 will pay the costs and charges which shall be adjudged against 
 the plaintiff, and all damages which may ensue from the deten- 
 tion of such boat and the cargo thereof, and the crew navigailr 
 ing the same. (2 it. 8. 229, §§ 23, 24.) 
 
 No inhabitant of any town, city, or county is disqualified as 
 a juror or witness in any cause brought to recover any penalty 
 or forfeiture, on the ground that such penalty or forfeiture is 
 to be applied for the benefit of such town, city, or county, or 
 for the benem of the poor thereof ; nor is any officer, on such 
 ground, disqualified from serving any process fpr the summon- 
 ing of a jury in such cause, {id. 551, ^ 2.) 
 
 The penalty of twenty^five dollars, imposed by statute upon 
 any person who shall " forcibly or fraudulently" pass any gate 
 
FIXTURES. 125 
 
 on any turnpike or plank road without having.paid the legal 
 toll, is not incurred by an indiV'idual who merely passes through 
 a gate with his team, and offers a bank bill in payment of the 
 toll, and refuses to pay in any other way; {Monterey &c. P. R. 
 Co. vs. Faulkner, 21 Barb. 212); nor by one who passes through 
 without forcing his way, but declining to pay toll, no effort 
 being made to stop him. (Bridgewater <& U. P. R. Co. vs. 
 Robbins, 22 Barb. 662.) 
 
 26. Fixtures. 
 
 Under this head, it will be impossible to give more than a 
 few general principles in regard to the law of fixtures. The 
 decisions are very numerous, and the distinctions between what 
 are fixtures belonging to the freehold, and what are things re- 
 movable as personal chattels, fi-equently require very subtle 
 discrimination. 
 
 The law divides property into two great classes, real and per- 
 sonal; and the distinction is founded on reason, and the nature 
 <rf tilings. The one is immovable and of unlimited duration; 
 the other is perishable and movable. Every thing that is an- 
 nexed to land is considered as a part thereof; a house, or a tree, 
 for instance. If the property in the land on which the house 
 is erected, or the tree is growing, be conveyed to another, the 
 house and tree will pass. And, as the house and the tree are a 
 part of the land, from the circumstances of their being fixed 
 thereto, so the fruit on the tree, and the articles fixed in the 
 house, as windows, doors, hearths, and chimney-pieces, are also 
 part of the land. 
 
 It may be stated, as a general proposition of law, that every 
 thing fixed to land, either immediately, as a house, or mediate- 
 ly, as a window in a house, belongs to the proprietor of the 
 land. And this rule prevails where one man builds a house on 
 the land of another, or fixes the chattels belonging to another 
 in his house. 
 
 But a man may have occasion to-fis to the land of another a 
 chattel belonging to himself, and yet not be willing to part with 
 his pi'ftperty in the chattel. Thus, where a house is let by the 
 owner to another for a term, it may be necessary for the tenant, 
 in order to the comfortable or profitable occupation of such 
 house, to fix therein articles of his own. In Such case the 
 
126 NEW YOKK JUSTICE. 
 
 general rule is modified; and a party who, under such circum- 
 stances, makes annexations to the land of another, is allowed to 
 remove the things so annexed, at any time during his tenancy, 
 and in some cases after the expiration thereof. Things thus 
 annexed to land, and removable, are termed fixtures; and, 
 although during the period of their annexation they are con- 
 sidered as a portion of the land, the party fixing them is allowed 
 to reduce them again to a chattel state. 
 
 Fixtures of the kind just mentioned are divided into two 
 classes: 1st. Those articles which a tenant fixes for the purpose 
 of trade; 2d. Those which he fixes for his domestic convenience, 
 or the ornament of his house. It is only articles which fall 
 under the one or the other of these divisions that the law con- 
 siders a party can have any reason for fixing to the land of an- 
 other, or can find any utility in removing. 
 
 In order to ascertain whether, as between landlord and ten- 
 ant, a particular thing is or is not a fixture, inquiry must be 
 made, 1st. If it be fixed to the land; 2d. If it have been so 
 fixed by the tenant; 3d. If it be useful to the tenant in his traq^j, 
 or in the occupation of his house, or ornamental to it; and 4th. 
 If it be capable of removal without doing substantial injury to 
 the house. ' As these are questions of fact, each case must de- 
 pend much on its own particular circumstances. 
 
 A fixture is a thing fixed to land. If not so fixed it is a chat- 
 tel, and cannot, under any circumstances, be considered as a 
 part of the fi^eehold. The merely laying, and resting upon the 
 earj;h, without letting and embedding into it, goods, or even 
 buildings of any description, will not make them fixtures. The 
 article must be fixed in or to the ground, or to some substance 
 already become a portion of the freehold, in order to deprive 
 it of its personal nature; and unless this complete annexation 
 to" the freehold take place, the article is not what is called a 
 fixture, but remains a personal chattel, and may be removed by 
 the party who brought it upon the premises. If goods or 
 buildings are merely placed and rest upon, without being let 
 into, a brick or other foundation, and can be taken away with- 
 out injury to such foundation, they may legally be removed," 
 although the foundation itself be in a solid manner rendered 
 part of the freehold, and cannot be severed therefrom. Thus 
 a tenant may erect barns, granaries, sheds and mills, upon 
 
FIXTURES. 127 
 
 blocks, rollers, pillars, or plates restijig on brickwork, so as to 
 reserve to himself the right of removal. 
 
 As between grantor and grantee, however, or mortgagor or 
 mortgagee, it does not follow that a structure may be removed 
 because it only rests upon a foundation. A statue, for instance 
 erected as an ornament to grounds, may be a part of the realty, 
 although it is not fastened to the base whereon it rests, and 
 though it can be removed without fracture. {^Snedeker vs. 
 Waring, 2 Ker. 170.) And so the engines, cars, &c., of a rail- 
 road under mortgage, have been held fixtures, in favor of the 
 mortgagee. (J^armer's Loan and Trust Co. vs. Hendrickson, 
 2h,Barb. 484.) 
 
 It may be stated generally, that whatever a tenant erects or 
 fixes for the purpose of his trade, to the premises leased, he 
 may take away at any time before the end of his term. In re- 
 gard to domestic fixtures, or those articles which a tenant fixes 
 in his house, in order to render his occupation more comforta- 
 ble or more convenient, the rule is, that furniture and pictures, 
 even when slightly fixed to the walls or floors of a house, are 
 removable by the tenant before the expiration of his term. So, 
 too, furnaces, grates, stoves, cupboards, shelves, bells, carpets 
 nailed to the floor, blinds, curtains, and in short any article 
 which has been fixed to the house by the tenant for his domes- 
 tic use, and which is capable of being removed without injury 
 to the house, may be removed by him. A tenant may lose his 
 right to remove fixtures by leaving them on the premises, and 
 he may waive it by agreement. {^Gibbon's Law of Fixtures; 
 Orady^s Law of Fixtures.) 
 
 Where a thing fixed to the freehold is severed for a particu- 
 lar purpose, it remains, in contemplation of law, a part of the 
 freehold; thus, a mill-stone taken from the mill for the purpose 
 of being picked, does not become a personal chattel. But 
 otherwise, articles affixed to the freehold become personal pro- 
 perty by severance. {Morgan vs. Varich, 8 Wend. 587.) 
 
 It has been decided in the courts of this State that' the follow- 
 ing articles are personal property: a bark-mill, affixed to the 
 soil, being an accessary to the tanning business; (6 Johns. 5; 
 Cook vs. Champlain Trans. Co. 1 Den. 91); a cider-mill and 
 press, erected by a tenant from year to year, at his own expense, 
 though affixed to the soil; {Holmes vs. Tremper, 20 id. 29); 
 
128 NEW YOKK JUSTICE. 
 
 machinery used in, but not attached to, a mill; (20 W&id. 
 Murdchkvs. Qifford, \%]Sf.Y. 528); engines and machiuery, firmly 
 affixed to a building by a tenant for years, for the carrying on 
 of business of a personal nature; (1 Z>e?i. 91; Supra)', coppers, 
 &c., for distilling; {Reynolds Vs. Skuier, 5 Cow. 623)^ a stove 
 not affixed, but communicating with the chimney by its pipe, 
 and secured by temporary fastenings. {Freeland vs. Sout/i- 
 .worth, 24 Wend. 191.) But whether personal property is an- 
 nexed to the freehold for the purpose of trade or manufactures, 
 is a question of fact for a jury. {Hovey vs. Smith, 1 Barb. 372.) 
 
 Machinery put iuto a building, after its erection by the 
 owner, for the purpose of trade, founded on timbers bedded in 
 the earth, and so attached to .the building as to be capable of 
 removal without injury to it, is not a fixture which passes by 
 conveyance of the land. (5 Den. 327; Van Derjpool yb. Van 
 Allen, 10 Barb. 157.) The water-wheels, bolting apparatus, 
 and machinery of a grist mill, are part of the freehold, and go 
 to l!he heii;; and so of growing grass,/ruit, and trees. (10 Paigt, 
 158; 1 Barb. 542; 2 id. 613; BucMeyvs. Buckley, 11 Barb. 43.) 
 V Manure, there being no stipulation to the contrary, and rails 
 in fences, or temporarily detaciied, belong to the landlord, and 
 not to the tenant; (15 Wend. 169; Goodrich vs. Jones, 2 Hill, 
 142); but rails built into a fence by a tenant, under an agree- 
 ment with his landlord that be may remove them at the end of 
 his lease, are personal property as between the landlord and 
 the tenant. (1 C.oms. 564; Ford vs. Cobb, 20 IT. Y. 344.) 
 
 Wheat-growing o^ the ground is a chattel, and may be sold 
 by parol. (2 Johns. 421;' 9 Cow. 39; Warren vs. Leland, 
 2 Barb. 613.) So, too, it maybe sold on execution. (2 Johns. 
 418; Stewart vs. Doughty, 9 id. 108.) But a foreclosure sale 
 under the statute vests in the purchaser a title to the growing 
 crops, as against the mortgagor or his vendee. (1 Barb, Ch. 
 B. 613; 2 Den. 174; Gillett vs. Balcom, 6 Barb. 370.) If one 
 occupies land under another, and, by the terms of the agreement, 
 the grass belongs to the former, he may mortgage it as personal 
 property. (1 Den. 580; Jenchs vs. Smith, 1 Corns. 90.) 
 
 27. Mechanics' Liens. 
 
 Justices of the Peace have jurisdiction of actions brought to 
 enforce mechanics' liens. The proceedings in those actions are 
 
mechanics' liens, 129 
 
 strictly statutory, and but little more can be done than to quote 
 the principal statutory provisions by which they are governed, 
 with reference to some of the decisions of the courts in regard 
 to the same. 
 
 The most important of the statutes now in force on this sub- 
 ject is the act of 1854, chapter 402. That act originally em- 
 braced only the counties specified in it; but in 1858 a statute 
 was passed extending its provisions over all the counties of the 
 State, except the citj^ and county of New York, and the county 
 of Erie; and repealing all acts and parts of acts inconsistent 
 therewith. And although there may probably be special pro- 
 visions in the former acts which may be deemed to remain in 
 force notwithstanding the somewhat indefinite repealing clause, 
 yet the former acts are now doubtless in general superseded by 
 the act of 1854; which is given here in full. 
 
 Any person who shall hereafter perform any labor in erect- 
 ing, altering, or repairing any house, building, or the appur- 
 tenances to any house or building in either of the counties 
 mentioned in the title of this act, and every resident of either 
 of said counties of Westchester, Oneida, Cortland, Broome, 
 Putnam, Rockland, Orleans, Niagara, Livingston, Otsego, Lewis, 
 Orange, and Dutchess, who shall furnish any materials therefor, 
 shall, on filing with the town clerk of the town in which the 
 property is situated, the notice prescribed by the fourth section 
 of this act, have a lien for the value of such labor and materials 
 upon such house or building, and appurtenances, and |Upon the 
 lot, parcel, or farm of land upon which the same shall stand, 
 to the extent of the right, title, and interest of the owner of 
 the property existing at the time of filing the said notice. 
 
 Whenever the labor performed and materials furnished shall 
 be upon the credit of any contractor, who shall have made a 
 contract therefor with the owner of the property, or upon the 
 credit of any sub-contractor, or the assignee of any contractor, 
 the provisions of this act shall not oblige the owner of the 
 property to pay for or on account of any labor performed or 
 materials furnished for such house, dwelling, or appurtenances, 
 any greater sum or amount than the price stipulated and agreed 
 to be paid therefor, in and by said contract; except as in the 
 next section , provided. As to who may acquire a lien, see 
 
 Heroy vs. Hendricks, 4 JE, D. Smith, 768, 
 9 
 
130 NEW YOEK JUSTICE. 
 
 If the owner of any building, altered or repaired by con- 
 tracty shall pay to any person any money on such contract, by 
 collusion, for the purpose of avoiding the provisions of this 
 act, or before the right of any claimant to file a notice of lien 
 has expired, or in advance of the terms of any contract, and 
 the amount still due the contractor or his assignee, after such 
 payment has been made, shall be insufficient to satisfy the de- 
 mands made in conformity to the provisions of this act, the 
 owner shall be liable to the amount that would have been due 
 and owing to said contractor or his assignee at the time of the 
 filing of the notice mentioned in the first section of this act, in 
 the same«manner as if no such payment had been made. 
 
 Within thirty days after the performance and completion of 
 such labor, or the final furnishing of such materials, the con- 
 tractor, sub-contractor, laborer, or persons furnishing materials, 
 shall serve a notice in writing ujTon the town clerk of the town 
 where the property is located, spfecifying the amount of the 
 claim, and the person against whom the claim is made, the 
 name of the owner of the building, and, if in a city or village, 
 the situation of the building, by street and number, if the 
 street be known. The town clerk shall enter the particulars 
 of such notice in a book to ,be kept in his office, to be called 
 the " Lien Docket," which shall be suitably ruled in columns, 
 headed "claimants," "against whom claimed," "owners," 
 " buildings," " amount claimed," and the date of the filing of 
 the notice, hour and minute, what proceedings have been had. 
 The names of the owners and persons against whom the claims 
 are made, shall be entered in said book in alphabetical order. 
 A fee of ten cents shall be paid to said clerk, on filing such 
 lien, and no lien shall attach to said land, buildings, or appur- 
 tenances, unless such notice be served and filed by said clerk; 
 and said notice, when so filed, shall thereafter operate as an 
 incumbrance upon said property. And these facts must all be 
 proved on the trial, or there is ,no foundation for the proceed- 
 ing. {Oronkright vs. Thomson, 1 E. D. Smith, 661.) 
 
 Any person performing labor, and every resident of said 
 counties furnishing materials, in availing himself of the pro- 
 visions of this act, shall, upon the trial, or at the assessment 
 of damages, produce evidence to establish the value of such 
 labor or materials, and that the same was performed or used 
 
mechanics' liens. 131 
 
 by the said owner or his agent, original contractor, or assignee 
 of such contractor, in the erection, altering or repairing of such 
 house, building, or appurtenances. 
 
 Any contractor, sub-contractor, or laborer performing any 
 work, or assignee thereof, and any resident of said county, fur- 
 nishing any materials as above provided, may, after such labor 
 has been performed, or materials furnished, and the service of 
 the notide required by the first section of this act, bring an ac- 
 tion in the Supreme Court in the county in which the property 
 is situated, or in the county coiirt of said county, when the 
 amount exceeds fifty dollars, to enforce said, lien, which said 
 action shall be commenced by serving a notice containing a 
 statement of the facts constituting the claim and the amount 
 thereof on the owner of the property, or his agent, requiring 
 the said owner to appear in person, or by attorney, within 
 thii'ty days after such service, and answer the same, and sei-ve 
 a copy of such answer, together with a notice of any set-off that 
 he, may have on the claimant or his attorney; or,. in default 
 thereof, that the claimant will take judgment against the said 
 owner for the amount claimed to be due for the labor performed 
 or the materials furnished, with interest thereon and costs; and 
 for the purpose of more effectually transacting the business con- 
 templated by this act, said Supreme Court and county court 
 shall be deemed to be, always open. (Broderick vs. Poillon, 
 2 E. D. Smith, 554; QmnTS. Mayor of JST. T. 2 id. 558.) 
 
 Within thirty days after the service of said notice and bill of 
 particulars, the defendant shall personally serve the claimant or 
 his attorney with a copy of his answer and notice of set-off, if 
 any he has, duly verified by the oath of the owner, his agent, or 
 contractor, to the effect that the same is in all respects true, or 
 his default may be entered, and judgment taken and enforced 
 as hereinafter provided. 
 
 "When the amount of the lien claimed is for one hundred dol- 
 lars or under, the claimant may commence such action in a 
 Justice's Court of the town in which the building is located, by 
 serving a notice upon the owner or his agent anjrwhere within 
 this State, requiring such owner to appear before a Justice of the, 
 town in which the property is situated, which said notice shall 
 contain a statement of the facts constituting the claim and the 
 amount thereof, and shall require such owner to appear before 
 
132 NEW YORK JUSTrCE. 
 
 said Justice in person or by attorney, at a time certain, not less 
 than thirty days after such service, and answer the same, or in 
 default thereof, that the claimant will take judgment against 
 such owner for the amount so claimed* to be due, with interest 
 thereon, ,and costs. 
 
 In case the said notice cannot be served personally on such 
 owner or his agent by reason of absence from the State, or being 
 concealed therein, then such service may be made by leaving a 
 copy of such notice at the last place of residence of said owner, 
 and publishing a copy thereof for three weeks successively in a 
 newspaper published in the county where the property is situ- 
 ated ; and in case of the service of such notice by publication, 
 then the said thirty days shall commence to run from the date 
 of the first publication of said notice. 
 
 At the time of the service of said notice, as hereinbefore 
 directed, a bill of particulars of the amount claimed to be due 
 from such owner, his contractor or sub-contractor, verified by 
 the oath of the claimant or his attorney to the effect that the 
 same is true, shall be served as aforesaid upon such owner or 
 his agent, except, however, that such bill of particulars need 
 not be published with such notice. — 
 
 In case said owner shall not appear, as required in and by the 
 notice given in pursuance of the sixth and eighth sections of this 
 act, then on filing vrith the county clerk when the action to 
 enforce the claim is brought in the Supreme Court or County 
 Court, or with the Justice when the action is before said Jus- 
 tice, an affidavit of the service of such notice and bill of par- 
 ticulars and the failure of the owner of the property to appear 
 as therein required, the amount of such claim may be assessed 
 by the said county clerk, or by the Court or Justice as the case 
 may be, and, upon the assessment of damages as aforesaid, judg- 
 ment shall be entered upon the said assessment, establishing the 
 , amount of said lien, with the costs, and execution shall there- 
 upon issue for the collection and enforcement of said claim, so 
 adjudicated and established, in, the same manner as executions 
 upon other judgiiients in said courts in actions arising on con- 
 tract for the recovery of money only, except that the execution ' 
 shall direct the officer to sell the right, title, and interest which 
 the owner had in the premises at the time of filing the notice 
 prescribed by the fii'st section of this act. The proceeding is 
 
mechanics' liens. 133 
 
 in rem and a judgment against the person is not proper. (Oox 
 vs. Broderick, 4:\E. I). Smith, Til; Walker ys. Paine, 2 E. D. 
 Smith, 662; as to the form of the judgiTient see Doughty vs. 
 Develin, 1 E. D. Smith, 62-5; 2 id. 535; id. 644; Smith vs. 
 Corey, 3 id. 642; Dennidoun vs. 3IcAllister, 4 ^■(i. 729. 
 
 On the appearance of botli paiiies iDcfore the Justice, the 
 owner shall put in an answer, in writing duly verified with a 
 bill of particulars of his set-oft' (if any) annexed, and the issue 
 formed by the service of the notice and bill of particulars on 
 the part of the claimant, and the answer and bill of particulars 
 of 8et-off on the part of the owner, shall be tried and governed 
 byjthe same rules as other issues in Justices' courts, and the 
 judgment therein shall be enforced, if for the claimant, as pro 
 Tided by the eleventh section of tMs act, and if for the owner, 
 as' in other actions arising on contract. Sheriff can sell only 
 defendant's interest in the premise. (Smith vs. Corey, 3 E. D. 
 Smith, 642; Randolph vs. Leary, 3 E. D. Smith, G37.) 
 
 When the action is brought into the Supreme Court, or in 
 the County Court, the issue shall be formed by the service of 
 the notice and the bill of particulars on the part of the claim- 
 ant, as hereinbefore directed, and the owner's answer duly 
 verified, with a bill of particulars of set-off (if any) annexed 
 to feaid answer. 
 
 At any time after the issue shall be so joined in the Supreme 
 Court or County Court, and at least ten days before the com- 
 mencement of the Court, the same may be noticed for trial and 
 put upon the calendar of said courts by either party furnishing 
 the clerk of the court with a note of issue, as now required in 
 other actions, and the action thereafter shall be governed, tried 
 HI all respects as upon issues joined and judgment rendered in 
 other actions arising on money demands upon contracts in said 
 courts, and the judgment thereupon shall be enforced, if for 
 the claimant, as provided by the eleventh section of this act, 
 and if for the owner, as in other actions ar'ising on contract. 
 
 Whenever a judgment shall be rendered against the owner 
 and in favor of any laborer or person furnishing materials and 
 the owner has funds in his possession due to the contractor, the 
 costs of the proceeding shall be deducted from such funds, 
 unless otherwise directed by the court in which the action la 
 brought. ' 
 
134 
 
 NEW YORK JUSTICE. 
 
 Costs and disbursements shall be allowed to either party upon 
 the principles and by the same rules in such proceedings as 
 they are now allowed by law, in actions arising on contract, 
 and shall be included in the judgment recovered in the same; 
 and the expenses incurred in serving said notice upon the owner 
 by publication may be allowed in Justices' Courts and added 
 to the amount of costs now allowed in said courts. But no 
 extra allowance, (liandolpp vs. Foster, 8 £J. D. Smith, 648; 
 8. a 4 -Abb. 262.) 
 
 A transcript of every judgment rendered under this act, 
 headed '" Lien-docket," shall be furnished by the clerk of the 
 county where rendered and docketed to the successful party, 
 who may file the same with the county clerk of any other county, 
 and the same shall thereafter be a lien on the real property in 
 the county where the same is filed and docketed, of every per- 
 son against whom the same is rendered, in like manner, and to 
 the same extent as in other actions for the recovery of money 
 arising on contract, where the judgment is against the claims, 
 and the town clerk shall enter the word " discharged," under 
 the last head in his lien-docket, on receiving a transcript from 
 the county clerk or justice, that judgment has been rendered 
 against the claimant. 
 
 Such owner or his agent may at any time give public notice 
 in the same manner as notice is required to be given for the 
 sale of real estate, by virtue of an execution, to all persons 
 having claims under any of the provisions of this act, against 
 such building, land or appurtenances, at the time of the date of 
 publishing such notice, to present the same, with vouchers in 
 support thereof, to any Justice of the Peace in the town where 
 such building is situated, on or before a certain hour or day to 
 be specified in said notice, and to be at least six weeks from the 
 first publication; and in case of the failure of such persons to 
 present their clsiims, as required in and by said notice, each 
 and every person so failing shall forever lose the benefit, and 
 be precluded of, the said lien. 
 
 Whenever such owner or his agent shall be proceeded against 
 by a contractor pursuant to the provisions of this act, it shall 
 be lawful for him to give the notice prescribed by the preced- 
 ing section, and present as a set-off all claims and liens there- 
 upon presented and established; and the justice before whom, 
 
mechanics' liens. 135 
 
 or a j'udge of the court in which the proceedings shall be com- 
 menced, may, upon the request of the owner, or his agent, grant 
 a stay of proceedings sufficient to enable the owner to give such 
 notice and call in all such claims, which said claims, if estab- 
 , lished and allowed by the justice or court, shall be a set-off to 
 such contractor's claim to the amount so allowed. 
 
 Every lieu created under the provisions of this act shall con- 
 tinue until the expiration of one year, unless sooner discharged 
 by the court or some legal act of the claimant in the proceed- 
 ings; but when a judgment is rendered therein and docketed 
 with the county clerk within said year, it shall be a lien upon 
 the real property of the person against whom it is obtained to 
 the extent that other judgments are now made a lien thereon. 
 
 After a judgment shall have been rendered in pursuance of 
 the provisions of this act, either party may appeal therefrom in 
 the same manner, and within thfe time appeals may now be 
 taken in actions for the recovery of money arising on contracts; 
 and said appeal shall be thereafter heard, governed, and deter- 
 mined upon the same principles and by the same rules that 
 appeals in said actions are now heard, governed, and determined, 
 with like costs and disbursements, and the judgment thereon 
 enforced in the same manner as judgments on appeals are now 
 enforced aud collected. 
 
 The lieus created and established by virtue of the provisions 
 of this act, shall be paid and settled according to the priority 
 of the notice filed with the town clerk, as directed by the fourth 
 section hereof. 
 
 All liens created by this act may be discharged as follows: 
 
 1. By filing with the town clerk a certificate of the claimant 
 or liis successors in interest, acknowledged or proved in the 
 same manner as a conveyance of real estate, stating that the lien 
 has been paid or discharged; or 
 
 2. By depositing with the justice, or clerk of the courts, a 
 pum of money equal to double the amount claimed, which money 
 shall be thereupon held subject to the determination of the lifen; 
 
 , 3. By an entry of the town clerk made in the book of liens, 
 that the proceedings on the part of the claimant have been dis- 
 missed by the court in which it is brought, or a judgment ren- 
 dered against the said claimant; or, . . 
 
136 NEW YORK JUSTICE. 
 
 4. By an affidavit of the service of a notice from the owner, 
 his agent, attorney, contractor, or sub-contractor to the claim- 
 ant, to commence an action for the enforcement of said lien, 
 within twenty days after service of said notice, and the failure 
 of said claimant to commence an action as aforesaid. 
 
 All acts heretofore passed for the better security of mechanics 
 and others erecting buildings and furnishing materials in either 
 of the above counties, are hereby repealed; but this act shall 
 not be so construed as to affect, enlarge, invalidate, or defeat 
 any lien or right to a lien now existing, or any proceeding to 
 enforce such liens now pending, by virtue of any of the provi- 
 sions of the acts hereby repealed. 
 
 This act shall take effect immediately. 
 
 CHAPTER IV. 
 
 OF THE TIME OF COMMENCING CIVIL ACTIONS. 
 
 The provisions of the Revised Statutes in the chapter entitled 
 *' Of actions and the times of commencing them," are repealed 
 by the Code, and the provisions of the Code are substituted in 
 their stead. (§ 73.) 
 
 Civil actions can only be commenced within the periods pre- 
 scribed by the Code, after the cause of action has accrued, ex- 
 cept where, in special cases, a different limitation is prescribed 
 by statute; but the objection that the action was not comcmenced 
 within the time limited, can only be taken by answer. {Code, 
 k 74.) 
 
 The following provisions of the Code, (Part 2, Title 2, Chap- 
 ter 2,) in regard to the time of commencing actions relating to 
 real property, are inserted here, as they may possibly, in some 
 cases, be applicable to actions in Justices' Courts. 
 
 § 79. No cause of action or d^nce to an action founded upon 
 the title to real property, or to rents or services out of the same, 
 flhall be effectual, unless it appear that the person prosecuting 
 the action, or making the defence, or under whose title the 
 
STATUTE OF LIMITATIONS. 137 
 
 action is prosecuted or the defence is made, or the ancestor, 
 predfecessor or grantor of such person, was seized or po^essed 
 of the premises in question, within twenty yeai's before the com- 
 mitting of the act in respect to which such action is prosecuted 
 or defence made. 
 
 ( § 86. Whenever the relation of landlord and tenant shall have 
 existed between any persons, the possession of the tenant shall 
 be deemed the possession of the landlord,' until the expiration 
 of twenty years from the termination of the tenancy; or where 
 there has been no written lease, until the expiration of twenty 
 years from the time of the last pajonent of rent; notwithstand- 
 ing that such tenant may have acquired another title, or may 
 have claimed to hold adversely to his landlord. But such pre- 
 sumptions shall not be made after the periods herein limited. 
 
 § 87. The right of a person to the possession of any real 
 property, shall not be impaired or aifected by a descent being 
 cast in consequence of the death of a person in possession of 
 such property. 
 
 § 88. If a person entitled to commence any action for the re- 
 covery of real property, or to' make an entry or defence founded 
 on the title to real property, or to rents or services out of the 
 same, be, at the time such title shall first descend or accrue 
 either, 
 
 1. Within the age of twenty-one years, or, 
 
 2. Insane, or, 
 
 3. Imprisoned on a criminal charge, or in execution upon con- 
 viction of a criminal otFence, for a term less than for life, or, 
 
 4. A married woman; 
 
 The time, during which such disability shall continue shall 
 not be deemed any portion of the time in this chapter limited 
 for the commencement of such action, or the making such entry 
 or defence; but such action may be commenced, or entry or de- 
 fence made, a;fter the period of twenty years, and within ten 
 years after the disability shall cease, or after the death of the 
 person entitled who shall die under such disability; but such 
 action shall not be commenced, or entry or defence made after 
 that period. 
 
 The following are the provisions of the Code, (Part 2, Title 2, 
 Chapter 3), in regard to the time of commencing actions other 
 than for the recovery of real property: 
 
138 NEW YORK JUSTICE. 
 
 § 89. The periods prescribed in section seventy-four for the 
 commencement of actions, otKer than for the recovery of real 
 property, shall be as follows: 
 
 § 90. Within twenty years: 
 
 1. An action upon a judgment or decree of any Court of the 
 United States, or of any State or Territory within the United 
 States; 
 
 2. An action upon a sealed instrument. 
 § 91. Within six years: 
 
 1. An action upon a contract, obligation or liability, express 
 or implied; excepting those mentioned in section 90. 
 
 2. An action upon a liability created by statute, other than a. 
 penalty or forfeiture. 
 
 3. An action for trespass upon real property. 
 
 4. An action for taking, detaining or injuring any goods or 
 chattels, inc;Juding actions for the specific recovery of personal 
 property. 
 
 5. An action for criminal conversation, or for any other in- 
 jury to the person or rights of another, not arising on contract, 
 and not hereinafter enumerated. 
 
 6. An action for relief, on the ground of fraud, in cases 
 which heretofore were solely cognizable by the Court of Chan- 
 cery; the cause of action in such case not to be deemed to 
 have accrued, until the discovery by the aggrieved party of the 
 facts constituting the fraud. ' 
 
 § 92. Within three years: 
 
 1. An action against a sheriff, coroner or constable, upon a 
 liability incurred by the doing of an act in his official capacity, 
 and in virtue of his office, or by the omission of an official duty; 
 including the non-payment of money collected upon an execu- 
 tion. But this section shall not apply to an action for an escape. 
 . 2. An action upon a statute, for a penalty or forfeiture, where 
 the action is given to the party aggrieved, or to such party and 
 the people of this State, except where the statute imposing it 
 prescribes a different limitation. 
 
 § 93. Within two years: 
 
 1. An action for libel, slander, assault, battery, or false im- 
 prisonment. 
 
 2. An action upon a statute, for a forfeiture or penalty to 
 the people of this State. 
 
STATUTE OF LIMITATIONS. 139 
 
 § 94. Within one year: ^ 
 
 1. An action against a sheriif or other officer, for the escape 
 of a prisoner arrested or imprisoned on civil process. 
 
 ^ 95. In an action brought to recover a balance, due upon a 
 mutual, open and current account, where there have been re- 
 ciprocal demands between the parties, the cause of action shall 
 be deemed to have accrued from the time of the last item 
 proved in the account on either side. 
 
 § 96. An action upon a statute for a penalty or forfeiture, 
 given in whole or in part to any person who will prosecute for 
 the same, inust be commenced within one year after the com- 
 mission of the offence; and if the action be not commenced 
 within the year by a private party, it may be commenced 
 within two years thereafter, in behalf of the people of this 
 State, by the attorney-general or the district attorney of the 
 county where the offence was committed. 
 
 § 97. An action for relief, not hereinbefore provided for, must 
 be commenced within ten years after the cause of action shall 
 have accrued. 
 
 § 98. The limitations prescribed in this chapter shall apply ' 
 to actions brought in the name of the people of this State or 
 for their benefit, in the same manner as to actions by private 
 parties. 
 
 § 71. No action can be brought upon a judgment rendered in 
 any Court of this State, except a Court of a Justice of the 
 Peace, between the same parties, without leave of the Court for 
 good cause shown, on notice to the adverse party; and no action 
 on a judgment rendered by a Justice of the Peace, can be 
 brought in the same county within five years after its rendition, 
 except in case of his death, resignation, incapacity to act, or re- 
 moval from the county, or that the process was not personally 
 served on the defendant, or on all the defendants, or in case of 
 the death of some of the parties, or where the docket or record 
 of such judgment is or shall have been lost or destroyed. 
 
 The following are the general provisions of the Code, (Part 
 2, Title 2, Chapter 4,) as to the time of commencing actions: 
 
 § 99. An action is commenced as to each defendant when the 
 summons is served on him, or on a co-defenclant, who is a joint 
 contractor, or otherwise united in interest with him. An 
 attempt to commence an action, is deemed equivalent to the 
 
140 NEW YORK JUSTICE 
 
 commencement thereof, within the meaning of this title, when 
 the summons is delivered, with the intent that it shall be actual- 
 ly served, to the sheriff or other officer of the county, in which 
 the defendants, or one of them, usually or last resided; or, if a 
 corporation be defendant, to the sheriff, or other officer of the 
 county in which such corporation was established by law, or 
 where its general business was transacted, or where it kept an 
 office for the transaction of business. But such ah attempt must 
 be followed by the first publication of the summons, or the 
 service thereof within sixty days. 
 
 § 100. If, when the cause of action shall accrue against any 
 person, he shall be out of the State, such action may be com- 
 menced within the terms herein respectively limited after the 
 return of such person into this State; and if, after such cause 
 of action shall have accrued, such person shall depart from and 
 reside out of this Staie, the time of his absence shall not be 
 deemed or taken as any part of the time limited for the com- 
 mencement of such action. 
 
 § 101. If a person entitled to bring an action mentioned in 
 the last chapter, except for a penalty or forfeiture, or against a 
 sheriff or other officer for an escape, be at the time the cause 
 of action accrued, either, 
 
 1. Within the age of twenty-one years; or, 
 
 2. Insane; or, 
 
 3. Impi'isoned on a criminal charge, or in execution under 
 the sentence of a criminal Court, for a term less than his natm-al 
 life; or, 
 
 4. A married woman; 
 
 The time of such disability is not a part of the time limited 
 for the commencement of the action, except that the period 
 within which the action must be brought, cannot be extended 
 more than five years by any such disability, except infancy, nor 
 can it be so extended in any case longer than one year after the 
 disability ceases. 
 
 § 102. If a person entitled to bring an action die before the 
 expiration of the time limited for the commencement thereof, 
 and the cause of action survive, an action may be commenced 
 by his representatives, after the expiration of that time, and 
 within one year from his death. 
 
 It is further provided by statute, that the time which shall 
 
STATUTE OF LIMITATIONS. 141 
 
 have elapsed between the death of any person, and the grant- 
 ing of letters testamentary, or of 'admhiistration on his estate, 
 not exceeding six months, and the period of six months after 
 the granting of such letters, shall not be deemed any part of 
 the time limited by any law for the commencement of actions 
 by executors or administrators. (2 B. S. 448 § 9.) 
 
 ^ 103. When a person shall be an alien subject or citizen of 
 a country at war with the United States, the time of the con- 
 tinuance of the war shall not be part of the period limited for 
 the commencement of the action. 
 
 ^ 104. If an action shall be commenced within the time pre- 
 scribed therefor, and a judgment therein be reversed on ap^jeal, 
 the plaintiff, or, if he die and the cause of action survive, his 
 heirs or representatives may commence a new action within one 
 year after the reversal. 
 
 § 105. When the commencement of an action shall be stayed 
 by injunction, or statutory prohibition, the time of the continu- 
 ance of the injunction or prohibition shall not be part of the 
 time limited for th^ commencement of the action. 
 
 § 106. No person shall avail himself of a disability unless it 
 existed when his right of action accrued. 
 
 § 107. When two or more disabilities shall co-exist, at the 
 time the right of action accrues, the limitation shall not attach 
 until they all be removed. 
 
 § 108. This title shall not affect actions to enforce the pay- 
 ment of bills, notes or other evidences of debt issued by 
 moneyed corporations, or issued or put in circulation as money. 
 
 § 109. This title shall not affect actions against directors or 
 stockholders of a moneyell corporation, or banking associations, 
 to recover a penalty or forfeiture imposed, or to enforce a lia- 
 bility created, by law; but such actions must be brought within 
 six years after the discovery, by the aggrieved party, of the 
 facts upon which the penalty or forfeiture attached, or the lia- 
 bility was created. 
 
 ,^ 110. No acknowledgment or promise shall be suiEcient evi- 
 dence of a new or continuing contract, whereby to take the 
 case out of the operation of this title, unless the same be con- 
 tained in some writing signed by the party to be charged there- 
 by; but this section shall not alter the effect of any payment 
 vof principal or interest. 
 
142 NEW YORK JUSTICE. 
 
 Section 100 of the Code, before cited, is the same as the 
 former profision of the Revised Statutes on the same subject, 
 (2 R. 8. 297, § 27), and which has given rise to various and 
 conflicting decisions. Thus it has been decided, that where the 
 defendant is a non-resident of this State when the cause of action 
 accrues, and afterwards comes into this State in an open, public 
 manner, so that the plaintiff might, with ordinary diligence, 
 have commenced his suit, the period of limitation commences 
 from such return, though the defendant immediately afterwards 
 go back to his foreign residence, and remain there till the 
 commencement of the suit; and that the provision declaring 
 that the time of the' defendant's absence from the State shall 
 not be taken as any part of the period of limitation, is confined 
 to cases of a departure from the State, after the cause of action 
 has accrued. {Randall vs. Wilkins, 4 Den. 577.) And, under 
 the last clause of the section, Mr. Justice Nelson, in the Cir- 
 cuit Court of the United States for the Southern Disti-ict of 
 New York, has decided that that clause provides for but one 
 case of absence, and that, on the return of the defendant into 
 the State after his first departure, so as to be subject to the 
 process of the Court, and in a way to give operation to the 
 statute, it then continues to operate, notwithstanding a subse- 
 quent departure; and that the plaintiff must have knowledge 
 of the return, or the circumstances must be such as will war- 
 rant a jury in bringing knowledge home to him. {Dorr vs. 
 8wartwovt, 1 Blatch. O. Q. R. 179.) 
 
 The question, however, was considered by Mr. Justice Mc- 
 Kissook in Bw^oughs vs. Bloomer, (5 Z)en.,532,) and he de- 
 cided, that where a cause of action accrues against a resident 
 of this State who subsequently removes to a foreign State, the 
 statute of limitations does not apply to any portion of the time 
 he resides out of the State, notwithstanding he may frequently 
 return to the State upon business; that the time spent in this 
 State upon business while residing abroad, is not to be taken 
 into the account; and that, if there be successive absences, they 
 must be accumulated, and deducted from the term of limitation 
 allowed by the statute. And in Ford vs. BaLcock, (2 Sand. 
 518,) in the Superior Court of the city of New York, Judge 
 Duer laid down the rule that every defendant who pleads the 
 statute is bound to prove that, deducting each interval of his 
 
STATUTE OF LIMITATIONS. 143 
 
 absence, he was within the State six years, (or a shorter period, 
 when a shorter is the statutory bar,) after the cause of action 
 accrued, and before the comme^jcement of the suit; and that 
 the rule thus expressed is subject to this single and reasonable 
 modification, that where a defendant against whom the statute 
 has begun to run is a resident of the State, and continues to 
 reside therein, his occasional absences are not to be deducted 
 in computing the statutory term. So, too. Chancellor Wal- 
 worth held, that where a defendant against whom a cause of 
 action has accrued, departs from and resides out of this State, 
 each period of his absence, when there are several, must be de- 
 ducted in determining the question whether the statutory term 
 of limitation has expired. {Didier vs. Davison, 2 Barb. Oh. 
 B. 477.) 
 
 The rule that, under section 100 of the Code the aggregate 
 of the debtor's absences from the State, and not the first one 
 only, is to be deducted, has since been established by the case 
 of Cole vs. Jessoj), in the Court of Appeals. (10 Sow. 515.) 
 
 All the persons liable upon a joint contract must depart from 
 the State, in order to arrest the running of the statute against 
 the demand, as to all of them, but if any one of them has been 
 absent the action is not baixed as to him. (4 Com. 514; Shoe- 
 maker vs. Benedict, 1 Ker. 176.) And where one of several 
 partners, who while out of the State, contracted a debt to credi- 
 tors within the State, came here and procured a discharge under 
 the bankrupt act of 1841, and afterwards and more than six 
 years after the contracting of the debt, his co-partner came with- 
 in the State and was sued upon the indebtedness, it was held 
 that the action was not barred. {Davis vs. Kinney, 1 Ajf^b. 440.) 
 
 In determining whether the statute of limitations has run 
 against a demand, the day on which the action accrued is to be 
 excluded from the computation. {Cornell vs. Moultpn, 3 
 Den. 12.) 
 
 Accounts are mutual, M'here each party makes charges against 
 the other in his books, for property sold, services rendered, or 
 money advanced. {Edmonstone vs. Thomson, 15 Wend. 554.) 
 "Where a part of the items of an account bear date within six 
 years before suit brought, they will not draw after them items 
 of a longer standing than six years, so as to protect them from 
 the opexation of the statute, unless there have been mutual ac- 
 
14^ NEW TOBK JUSTICE. 
 
 counts and reciprocal demands between the parties. (1 Sand. 
 220; 2 id. 3l8; Sickles vs. Mather, 20 Wend. 72.) Where all 
 the items are on one side, the last item, though within six years, 
 d9es not draw after it those of longer standing. (5 Johns. Ch. 
 R: 522; Palmer vs. Mayor, .<&c. of JSf. Y. 2 Sand. 318.) 
 
 The statute of limitations is not a favored defence, and the 
 party intending to rely upon it must plead it in the first instance. 
 (6 Hill, 227; 2 Wend. 294; VorheeSYS. Vorhees, 24 Barb. 150.) 
 
 The payee' of a note cannot recover against the maker after 
 six years, although he has paid the note to his endorsee within 
 six years. (^Woodruff^ vb. Moore, 8 Bard. 171.) 
 
 Formerly, a verbal acknowledgment or promise was sufficient 
 to take a case out of the statute, or to revive a debt which was 
 barred by the statute of limitations; and what* constituted a suffi- 
 cient acknowledgment or promise was a fruitful subject of judi- 
 cial depision. Now, however, the Code has provided that no 
 acknowledgment or promise shall be sufficient evidence of a new 
 or continuing contract, whereby to take the case out of the 
 operation of the statute of limitations, unless the same be con- 
 tained in some writing signed by the party to be charged there- 
 by; but that provision does not alter the effect of any payment 
 of principal or interest made upon such contract. (Code, § 110; 
 Wadsworth vs. Thomas, 7 Barb,. 445?) There must be an ex- 
 press promise, or an admission of a subsisting debt, and a will- 
 ingness to pay, so clear that a promise may be implied; and 
 partial payment is only reliable as evidence of a promise, or as 
 a fact from which a promise may be implied. {Bloodgood vs. 
 Buren, 4 Seld. 362; 1 Kern. 176.) And where the promise to 
 pay the debt is conditional, performance of the condition must 
 be proved affirmatively to entitle plaintiff to recover. ( Wake- 
 man vs. Sherman, 5 Seld. 85.) 
 
 One of two makers of a joint and several promissory note 
 cannot, after the debt is barred by the statute of limitations, re- 
 vive the indebtedness, as against the other maker, by making a 
 payment on the note, so as to enable the holder to sue the latter 
 upon the note, as sumvor, after the death of the former. 
 {Bogert vs. Vermilyea, 10 Barb. 32.) Pai-tial payments, made 
 upon a joint and several promissoiy note, by one of the makers, 
 before the statute of limitations has barred an action upon it, 
 will not revive the debt against the other parties to the note. 
 
PAETIES TO CIVIL ACTIONS. 145 
 
 {Dunham vs. Dodge, 10 Barb. 566.) And a subsequent promise 
 or parti'al payment by one joint debtor, unless authorized by 
 his co-debtors, does not take the debt. out of the statute as to 
 them. Their defence remains good, whether his acknowledg- 
 ment was made before the statute attached to the original debt, 
 or afterwards. (4 8 eld. 362, Swpra; Shoemaker' vs. Benedict, 
 1 Kern. 176.) 
 
 Where services are rendered for a series of yeal-s under a 
 general employment, without any express agreement as to time 
 fpr payment, and no payments are made, the law will not, for 
 the purpose of determining when the statute of limitations be- 
 gins to run, imply an agreement that the payment shall be post- 
 poned until the termination of the employment, but will regard 
 the hiring as from year to year, and the wages as payable at 
 least y*early, or perhaps monthly. {Davis vs. Gorton, 16 
 N. Y. 255.) 
 
 CHAPTER V. 
 
 OF THE PARTIES TO CIVIL ACTIONS. 
 
 We have already seen {Ante, p. 28) that Justices cannot enter- 
 tain jurisdiction in actions brought against executors or admin- 
 istrators. If the action is one cognizable by the Justice, it may 
 be brought* by and against all persons who sue or are sued in 
 their own right, and by and against all town and county officers 
 in their official character, and by and against eorporations, and 
 by executors and administrators. (2 R. 8. 226, § 5; Laws of 
 1847, chap. 470, § 45.) Formerly, actions against a corpora- 
 tion could not be brought before a Justice, but this restriction 
 was removed in 1847. 
 
 Actions may be brought by the supervisors of a county; by 
 the loan officers and commissioners of loans of a county; by 
 county superintendents of the poor; by supervisors of towns; 
 by overseers of the poor of the several- towns; by town super- 
 intendents {Laws of 1843, chap. 133, § 1; Laws of 1847, chap. 
 480, 6 1) of common schools, and commissioners of highways 
 10 
 
146 NEW YORK JUSTICE. 
 
 of the several towns; by trustees of school districts; and by 
 trustees of gospel and school lots; upon any contract lawfully 
 made with them or their predecessors, in their official character; 
 to enforce knj liability; or any duty enjoined by law, to such 
 officers or the body which they represent; to recover any penal- 
 ties or forfeitures given to such officers or the bodies whom they 
 represent; and to recover damages for any-injuries done to the 
 property or rights of such officers, or of the bodies represented 
 by them. (2 R. S. 473, § 92.) In an action either by or 
 against any of the abovenamed officers, the individual name of 
 the incumbent must be used, with the addition of his name of 
 office; and the complaint should show by proper averments 
 that the claim is made by the officer and not by the individual. 
 Accordingly, where the action was in the name of the ," super- 
 visor of the town of G." without mentioning the name of the 
 incumbent, it was held that it* could not be maintained. (^S'm- 
 pei'vtsor of Galway vs. Stimson] 4 Hill, 136.) Upon the other 
 hand, where the complaint, in its title, named the plaintife as 
 commissioners of highways, but contained no averments show- 
 ing they sued in their official capacity, although the complaint 
 was for statute penalties for obstructing a highway, it was held 
 that the action must be deemed to be brought by the plaintifls 
 as individuals. They should have averred that they were com- 
 missioners; that as such they complained of the defendant, &c. 
 (Gould vs. Glass, 19 Barb. 179.) And again, it is held that a 
 suit upon an order of i filiation, made in the name of the over- 
 seers of the poor, cannot be brought by the overseers of the 
 poor in their name of office. It should be brought in their 
 individual names, with the addition of their office. [Ifill <& D. 
 Supp. 379.) 
 
 Such actions may be brouglit by such officers in the name of 
 their respective offices, notwithstanding the contract or obliga- 
 tion on which the same is founded, may have been made with 
 or to any predecessors of such offices, in their individual names 
 or otherwise, and notwithstanding any right of action may have 
 accrued, previous to the time when the officers commencing 
 such suit entered upon the execution of the duties of their office. 
 (2 B. S. 473, § 93.) 
 
 But in cases where, by special permission of law, actions are 
 directed to be brought by or against any public bodies, in the 
 
FOREIGN CORPORATIONS. 147 
 
 name of any such body, the same must be brought or defended 
 in such name, by the persons representing such body, then in 
 office. (2 R. S. 473, ^ 94.) 
 
 Actions against counties in the cases in which they are allowed 
 by law, (Ante. pp. 95, 96), must be brought against the board 
 of supervisors thereof, and actions against towns (id.) must be 
 brought against such towns by their names. (2 R. S. 473, § 95.) 
 Actions may also be brought against the supervisors and 
 other public officers before named, upon their own contracts 
 and those of their predecessors, made in pursuance of their 
 official authority and duties. (7 Wend. 181; 10 id. 426; Morse 
 vs. JSarl, 13 id. 271.) And it is further provided by statute, 
 that when any contract shall have been entered into, or any 
 liability shall have been incurred, by or in behalf of any county 
 or town, by any officerthereof within the scope of his authority, 
 the same remedies may be had against any successor of such 
 officer, in his official character, as might have been had against 
 such officer, if he had continued in office. (2 R. S. 474, § 98.) 
 As a general rule, all public officers, though not expressly 
 authorized to sue by statute, have a capacity to sue, commensu- 
 rate with their public trusts and duties. (18 Johns. 407; 1 Oow. 
 260; Supervisor of Oalway vs. Btimson, 4 Hill., 136.) 
 
 Every corporation, created under the laws of this State, has 
 power, as such, to sue and be sued, complain and defend in any 
 Court. (1 R. S. 599, § 1.) But in a suit brought by any such 
 corporation, it is not necessary to prove, on the trial of the 
 action, the existence of such corporation, unless the defendant 
 sets up in his answer that the plaintiffs are not a corporation. 
 {id. § 3.) 
 
 A foreign corporation, created by the laws of any other 
 State (2 R. S. 457, ^ 1) or county, may, upon giving security 
 for the payment of the costs of suit, prosecute in the Courts 
 of this State, in the same manner as corporations created under 
 the laws of this State, {id. § 2.) But where, by the laws of this 
 State, any act is forbidden to be done by any corporation, or 
 by any association of individuals, without express authority by 
 law, and such act shall have been dpne, by a foreign corpora- 
 tion, it shall not be authorized to maintain any action founded 
 _ upon such act, or upon any liability or obligation, express or 
 
148 NEW YORK JUSTICE. 
 
 implied, arising out of, or made or entered into, in considera- 
 tion of such act. (2 R. 8. 467, § 2.") 
 
 In regard to the security for costs thus required to be given 
 by a foreign corporation, it is supposed that no further secur- 
 ity is required in a Justice's Com-t than that which the foreign 
 corporation mast give by reason of its being a non-resident 
 plaintiff. A non-resident plaintiff, to obtain a warrant from a 
 JiSstice, must tender to the Justice security /or the payment of 
 any sum which may be adj^idged against him in. the suit. {id. 
 228, § 17.) And the same security must be given by a non- 
 resident plaintiff to obtain a short summons under the non- 
 imprisonment act, where a warrant cannot issue. {Laws of 
 1831, chap. 300, \ 32.) So also, to obtain an attachment, 
 whether under the Eevised Statutes, (2 R. 8. 230, § 29,) or 
 under the non-imprisonment act, (Laws of 1831, chap. 300, 
 % 35,) the plaintiff must give a bond to pay the defendant all 
 damages and costs which he may sustain by the issuing of the 
 attachment, if the plaintiff fails to recover judgment. Then, 
 as the defendant, on obtaining judgment against the plaintiff 
 before a Justice, is entitled by law to costs as a part of his 
 judgment, (2 R. 8. 246, §§ 119, 120,) it would seem that the 
 provisions for security for costs just referred to, embrace all 
 the security that is necessary in the case of a foreign corpora- 
 tion as well as in the case of every other non-resident plaintiff. 
 
 There are some kinds of joint-stock associations which are 
 permitted by our laws to sue and be sued by the names of 
 their chief officers, instead of by the names of all their share- 
 holders. Such officers, however, not being thereby made in- 
 dividually liable, but the associations being the real parties to 
 the actions, and being bound thereby. 
 
 All suits, actions, and proceedings brought or prosecuted by 
 or in behalf of an association for the business of banking formed 
 under the act of 1838, chapter 260, and the acts amending the 
 same, may be brought or prosecuted in the name of the presi- 
 dent thereof; and no such suit, action, or proceeding will 
 abate, by reason of the death, resignation, or removal from 
 office of such president, but may be continued and prosecuted 
 according to such rules as the Courts may direct, in the name 
 of his successor in office, who will exercise the powers, enjoy 
 the rights, and discharge the duties of his predecessor. {Laws 
 
JOINT-STOCK COMPANIES. 149 
 
 ft 
 
 of 1838, cAop. 260, \ 21.") All persons having demands against 
 any such association, may maintain actions against the president 
 thereof; which suits or actions will not abate by reason of the 
 death, resignation, or removal from office of such president, 
 but majftbe continued and prosecuted to judgment against his 
 successor; and all judgments and decrees obtained or rendered 
 against such president for any debt or liability of such associa- 
 tion can be enforced only against the joint property of the . 
 association, and which property is liable to be taken and sold 
 by execution under any such judgment or decree, (id. § 22.) 
 Any joint-stock company or association, consisting of seven 
 or more shareholders, or associates, may sue and be sued, in 
 the name of the president or treasurer for the time being, of 
 such joint-stock company or association; and all suits and pro- 
 ceedings so prosecuted, by or against any such joint-stock com- 
 pany or association, and the service of all process or papers in 
 such suits and proceedings on the president or treasurer for 
 the time being, of such joint-stock company or association, ,will 
 have the same force and efiect as regards the joint rights, pro- 
 perty and effects of such joint-stock company or association, as if 
 such suits and proceedings were prosecuted in the names of all 
 the shareholders or associates, in the manner now provided by 
 law. {Laws of 1849, chap. 258, § 1.) No suit so commenced 
 will abate by reason of the death, removal, or resignation of 
 such president or treasm-er of such joint-stock company or 
 association, or the death or legal incapacity of any shareholder 
 or associate during the pendency of such suit; but the same 
 may be continued by cir against the successor of the officer in 
 ■ whose name such suit has been commenced, [id. \ 2.) The 
 president or treasurer of any such joint-stock company or 
 association will not be liable in his own person or, property, by 
 reason of any suit prosecuted as above provided, by or against 
 him, as the qominal plaintiff or defendant therein; but such 
 president or treasurer will not be exempted from any liability 
 to which he may be otherwise legally subject as a stockholder ' 
 or shareholder in such joint-stock company or association, {id. 
 \ 3.) But these provisions do not deprive-any plaintiff of the 
 right, after judgment is obtained against any such joint-stpck 
 company or association, as above provided, from suing all or 
 any of the shareholders ot associates therein indiyidually, ac- 
 
150 • « NEW YOKK JUSTICE. 
 
 cording to law, or of the right to proceed in the first instance 
 against the persons constituting any such joint-stock company 
 or association, according to law; but if it appears to any Court 
 in which any suit is prosecuted otherwise than is above pro- 
 vided, (in § 1 of the act,) that the same is so prosecuted for the 
 purpose of vexatiously and oppressively enhancing costs, such 
 Court must not allow any more costs to be recovered in such 
 suit than would be recoverable in case such suit was prosecuted 
 as above provided (in § 1 of the act), {id. § 4.) The foregoing 
 prQvisions do not, however, confer on such joint-stock compa- 
 nies or associations, any of the rights or privileges of corpora- 
 tions, except as above specially provided, {id. § 5.) 
 
 By a subsequent statute, the foregoing provisions of the afit 
 of 1849 are extended to any company or association composed 
 of not less than seven persons, who are owners of, or have an 
 interest in, any property, right of action, or demand, jointly or 
 in common, or who may be liable to any action on account of 
 such ownership or interest. {Laws of 1851, chap. 455.) 
 
 It is' held that these acts are not applicable to corporations, 
 {]SF. Y. Marble Iron Works vs. Smith, 4 Duer, 362,) and they 
 do not embrace the fire companies in the city of New York. 
 {Masterson vs. Botts, 4 Abb. 130.) 
 
 It is declared by law to be the duty of every association or 
 company formed for the purpose of the transpprtation of pas- 
 sengers or property, either by boats, vessels or stages, to make 
 a statement of the names of the persons composing such asso- 
 ciation or company, and to file in the clerk's ofiice of each county 
 through which such association or company may transact its 
 business, a copy of such statement. {Laws of 1836, chap. 383, 
 % 1.) Until such statement is so filed, any action to be brought 
 against such association or company will not be abated by rea- 
 son that all the members of the association are not joined in the 
 action, {id. § 2.) After such statement is made^nd filed, any 
 action brought against the persons named in such statement 
 will not be abated for the reason that other owners may have 
 become interested, unless, thirty days previous to the bringing 
 of such action, a further statement is filed, as above provided, 
 and naming any change in the several persons composing such 
 iassociation, and the time when such change took place; nor can 
 any action become non-suited or defeated by reason that any 
 
PAETIES TO CIVIL ACTIONS. 151 
 
 of said persons have ceased to be interested therein, unless at 
 least thirty days before such action is brought a notice thereof 
 is filed as aforesaid. {Laws of 1836, chap. 383, § 3.) 
 
 ' It is provided by statute that every person who shall, for 
 vexation and trouble, or maliciously, cause or procure any other 
 to be arrested, attached or in any way proceeded against, by 
 any process or proceeding at law, or in any other manner pre- 
 scribed by law,' to answer to the suit or prosecution of any per- 
 son, without the consent of such person, or where there is no 
 such person known, shall forfeit, to the person so arrested, at- 
 tached, or proceeded against, treble the damages/and expenses 
 which, by any verdict, shall be found to have been sustained 
 and incurred by him; and shall forfeit to thp person in whose 
 name such arrest or proceeding was had two hundred and fifty 
 dollars; and shall be deemed guilty of a misdemeanor, punish- 
 able, on conviction, by imprisonment for a time not exceeding 
 six months. (2 JR. S. 550, § 1.) 
 
 ' Sections 111, 112, 113, and 114 of the Code, and which are 
 made applicable to suits in Justices' Courts, (P'of^e, §§,8, 64,) 
 provide as follows: 
 
 § 111. Every action must be prosecuted in the name of the 
 real party in interest, except as otherwise provided in section 
 one hundred and thirteen, but this, section shall not be deemed 
 to authorize the assignment of a thing in action not arising out 
 of contract. 
 
 § 112. In the case of assignment of a thing in action, the 
 action by the assignee shall be without prejudice to any set-ofl" 
 Or Other defence existing at the time of or before notice of the 
 assignment; but this section shall not apply to g, negotiable 
 promissory note or bill of exchange, transferi^ed in good faith, 
 and upon good consideration, before due. 
 
 § 113. An executor or administrator, a trustee of an express 
 trust, or a person expressly authorized by statute, may sue, with- 
 out joining with him the person for whose benefit the action is 
 prosecuted. A trustee of an express trust, within the meaning « 
 of this section, shall be construed to include a person with whom 
 or in whose name a contract is made for the benefit of another. 
 
 § 114. Where a married woman is a party, her husband must 
 be joined with her, except that, Avhen the action concerns her 
 separate property, she may sue alone; and except also that when 
 
152 NEW rORK JUSTICE. 
 
 the action is between herself and her husband, she may sue or 
 be sued alone, and in no case need she prosecute or defend by 
 a Wuardian or next friend. 
 
 Laws of 1862, chap. 172, provide that a m£(rried woman may 
 sue and be sued in any of the courts of this State in all matters 
 having relation to her sole and separate propei'ty, in the same 
 manner as if she were sole; and whenever a judgment shall be 
 recovered against her the same may be enforced by execution 
 against her sole and separate estate in the same manner as if she 
 were sole. 
 
 The terms of section 111 above quoted, are imperative, and 
 are subject to no exceptions other than those stated in section 
 113. Hence, since the -Code, even a dormant partner is a neces- 
 sary party as plaintiff in an action for a partnership debt founded 
 on a partnership contract, whether the relief sought be legal or 
 equitable. Each partner is not a trustee for his co-partners, and 
 hence is not a trustee of an express trust, within the meaning 
 of section 113, (Secor vg. Keller, 4 Duer, 416.) 
 
 Under section 114 it is held that a married woman may main- 
 tain an action without joining her husband with her, to recover 
 upon a promissory note given to her during coverture, for a loan 
 of money which was her separate property. (^Smart t^s. Corn- 
 stock, 24 Barb. 411.) The husband has however a right to 
 maintain an action for moneys due to the wife, unless it appears 
 affirnlatively not merely that the moneys were those of the wife, 
 but that they were held by her in the modes prescribed in the 
 statutes of 1848 and '49. (CroUus vs. Roqualina, 3 Abb. 114.) 
 If the plaintiff, being a married woman and an infant, be joined 
 in an action with her husband, she need not appear by guardian, 
 unless the action is to recover her separate property; in such 
 case her husband cannot be guardian or next friend. {Cook 
 vs. Hawdon, 6 How. 233.) 
 
 Any plaintiff in an action before a Justice may appear and 
 conduct his suit in person, except infants and corporations 
 aggregate; (2 JR. /S'.^232, § 39;) and the latter may appear by 
 attorney, but the former cannot. 
 
 When an infant has any right of action to recover any debt or 
 damages, he is entitled to maintain a suit thereon; and the same 
 cannot be deferred or delayed on account of such infant not 
 being of Ml age. (2 E.. 8. 445, § 1.) 
 
PARTIES TO CIVIL ACTIONS. 153 
 
 An infant plaintiff must appear by guardian, who may be ap- 
 pointed by the Justice before whom the action is prosecuted, or 
 by a county judge. {Code, ^ 115, Hoftaling vs. Teal, 11 How. 
 188.) The guardian for an infant plaintiff must be appointed 
 upon the application of the infant, if he be of the age of four- 
 teen years, or if under that age, upon the application of his 
 general or testamentary guardian, if he has any, or of a relative 
 or friend of the infant. If made by a relative or friend of the 
 infant, notice thereof must first be given to such guardian, if he 
 has one; if he has none, then to the person with whom such 
 infant resides, {id. ^ 116.) Such application maybe verbal or 
 in writing. The person appointed must be a suitable person, 
 having no possible interest in the controversy adverse to that 
 of the infant. He may be named by the applicant, and must 
 consent in writing to be such guardian, and becomes responsible 
 for costs in the action. (2 R. 8. 232, § 40.) Tte consent must 
 be filed with the Justice, {id. 233, § 43.) The appointment 
 must be made before the issuing of process; or, when issue is 
 joined without process, before issue is heard, {id. 232, § 40.) 
 Formerly, the statute required the Justice to appoint a next 
 friend; it is presumed, however, that the term is abolished by 
 the Code, and the name of gvardian substituted; {Hill vs. 
 Thatch^, 2 Code Rep. 3;) as the provisions of the Code in 
 regard to appointing guardians are made applicable to Justices' 
 Courts. {Code, ^§ 8, 64.) 
 
 ^ 5. Consent to he Guardian for Infant Plaintiff. 
 
 . Cayuga County, ss. : I hereby consent, at the request of 
 William Brown, who is under the age of twenty-one years, to 
 act as his guardian in an action about to be brought by him upon 
 a promissory note, against Joseph Swift, before Horace T. Cook, 
 a Justice of the Peace of the county aforesaid; and I do hereby, 
 for value received, promise to pay the said Joseph Swift such 
 costs as he shall recover against the said William Brown in the 
 said action. James WiLsoiir. 
 
 Dated, December 8, 1852. 
 
 The Justice, or County Judge, should endorse the appoint- 
 ment of the guardian upon the consent before it is filed, as 
 follows: 
 
 The said James Wilson is accordingly appointed guardian. 
 HoEACE T. Cook, Justice of the Peace. 
 
154 
 
 NEW YORK JUSTICE. 
 
 The following sections of the Code are made applicable to 
 suits in Justices' Courts. (§§ 8, 64.) 
 
 § 117. All persons having an interest in the subject of the 
 action, and in obtaining the relief demanded, may be joined as 
 plaintiffs, except as otherwise provided in this title. 
 
 § 118. Any person may be made a defendant, who has or 
 claims an interest in the controversy, adverse to the plaintiff, 
 or who is a necessary party to a complete determination or set- 
 tlement of the questions involved therein. 
 
 § 119. Of the parties to the action, those who are united in 
 interest must be joined as plaintiffs or defendants; but if the 
 consent of any one, who should have been joined as plaintiff, 
 cannot be obtained, he may be made a defendant, the reason 
 thereof being stated in the complaint; and when the question 
 is one of a common or general interest of many persons, or when 
 the parties are very numerous and it may be impracticable to 
 bring them all before the Court, one or more may sue or defend 
 for the benefit of the whole. 
 
 § 120. Persons severally liable upon the same obligation or 
 instrument, including the parties to bills of exchange and pro- 
 missory notes may, all or any of them, be incllided in the same 
 action, at the option of the plaintiff. 
 
 § 121. No action shall abate by the death, marriage or other 
 disabilitj'' of a party, or by the transfer of any interest therein, 
 if the cause of action survive or continue. In case of death, 
 marriage, or other disability of a party, the Court, on motion, 
 at any time within one year thereafter, or afterwards on a sup- 
 plemental complaint, may allow the action to be continued by 
 or against his representative or successor in interest. In case 
 of any other transfer of interest, the action shall be continued 
 in the name of the original party; or the Court may allow the 
 person to whom the transfer is made to be substituted in the 
 action. After a verdict shall be rendered in any action for a 
 wrong, such action shall not abate by the death of any party, 
 but the case shall proceed thereafter in the same manner as in 
 cases where the cause of action now survives by law. 
 
 § 122. The Court may determine any controversy between 
 the parties before it, when it can be done without prejudice to 
 the rights of others, or by saving their rights, but when a com- 
 plete determination of the controversy cannot be had without 
 
PARTIES TO CIVIL ACTIONS. 155 
 
 the presence of other parties, the Court miist cause them to be 
 brought in. And when, in an action for the recovery of real 
 or personal property, a person, not a party to the action, but 
 having an interest in the subject thereof, makes application to 
 the Court, to be made a party, it may order him to be brought 
 in by the proper amendment. A defendant, against whom an 
 action is pending upon a contract, or for specific real or per- 
 sonal property, may at any time before answer, upon affidavit 
 that a person, not a party to the action, and without collusion 
 with him, makes against him a demand for the same debt or 
 property, upon due notice to such person and the adverse party, 
 apply to the Court for an order to substitute such person in 
 his place, and discharge him from liability to either party on 
 his depositing in the Court the amount of the debt, or deliver- 
 ing the property, or its value, to such person as the Court may 
 direct; and the Cciurt may, in its discretion, make the order. 
 
 No suit commenced against any supervisors or other public 
 officers, will be abated or discontinued by the death of such 
 officers, their removal from or resignation of their offices, or 
 the expiration qf their term of office; but the Court in "v^hich 
 any such action is pending, must substitute the names of the 
 successors in such office, upon the application of such succes- 
 sors, or of the adverse party. (2 R. B. 474, § 100.) But be- 
 fore any new defendant can be so substituted without his consent, 
 at least fourteen days' notice of the application for that purpose 
 must be personally served on him. (id. ^ 101.) 
 
156 NEW YORK JUSTICE. 
 
 CHAPTER VI. 
 
 OF THE COMMENCEMENT OF CIVIL ACTIONS AND 
 THE DIFFEEENT FOEMS OF PEOCESS 
 
 We come now to consider the manner in which an action 
 may he commenced, and parties he brought before a Justice's 
 Court. 
 
 Suits may be commenced before a Justice either by the vol- 
 untary appearance and agreement of the parties, or by process; 
 when by process, it must be either a summons, a warrant, or an 
 attachment. (2 R. 8. 227, § 11; Lester vs. Orary, 1 Den. 81.) 
 "When a suit is instituted without process, it is deemed to be 
 commenced at the titoe the parties jdin issue; when by warrant, 
 at the time of the arrest of the defendant; and when by attach- 
 ment or summons, on the day when the process is delivered to 
 the constable. But if two or more suits be -commenced by 
 summons on the same day, that suit is first commenced in which 
 the process is first served, {id. § 12; ^ijaines, 133; Cornell 
 vs. Moultpn, 3 Den. 12; 18 Johns. 14; Townsend vs. Chase, 
 1 Cow. 115.) 
 
 Actions against the boards of supervisors of counties, and 
 actions against towns, are commenced by summons. (2 R. S. 
 473, ^ 95.) Actions against the supervisors and other public 
 officers mentioned in 2 E. S. 473, § 92, (see ante, p. 145,) must 
 be brought against them inclavidually, specifying in the pro- 
 cess, pleadings and proceedings, their name and office; and 
 such actions may be commenced in the same manner as against 
 individuals, {id. § 96.) 
 
 There are four kinds of process: Long Summons, Warrant, 
 Short Summons, and Attachment. 
 
 1. Long Summons. 
 
 The first process against freeholders, and against inhabitants 
 having families, except when otherwise provided by statute, 
 must be a summons, but no person can be proceeded against 
 
liONft STTMMONS. 157 
 
 by summons, out of the county in which he resides. (2 R. 8. 
 227, § 13.) 
 
 A Justice has not, by statute, jurisdiction, by long summons, 
 over all persons residing in his county, but only over those who, 
 residing in the county, also reside in his own town or in a town ad- 
 joining, or where the plaintiff resides in the same town with the 
 Justice, or in an adjoining one. {Cooper vs. Ball, 14 How. 295.) 
 
 A railroad corporation are not to be deemed non-residents 
 of a county through which their road passes, so as to be liable 
 to be sued by a Justice of the Peace of a town of such county. 
 They are entitled to a long summons; and their objection to a 
 short summons is not waived by appearing and pleading after 
 the objection has been overruled. (15 How. 17; Johnson vs. 
 C. & a. B..R. Co. 11 Barb. 621.) 
 
 The summons must be directed to a constable of the county 
 where the Justice resides, commanding him to summon the de- 
 fendant to appeal" before the Justice who issued the same, at a 
 time and place to be named in such summons, not less than six 
 nor more than twelve days from the date of the same, to an- 
 swer the complaint of the plaintiff. (2 R. S. 228, § 14.) 
 Since the Code, abolishing all forms of pleading and names of 
 actions, the form of summons required by the Revised Statutes is 
 obsolete, and the summons need not express the cause of action, 
 nor the nature of the plaintiff's claim. It is enough to say, " to 
 answer the complaint of A B, then and there to be exhibited, 
 to his da,mage one hundi-ed dollars or under." (11 Barb. 657; 
 Smith vs. Joyce, 12 id. 21.) If the summons does not contain 
 the name of the Justice, or the place of appearance, the de- 
 fendant may disregard! it, and move to have the judgment set 
 aside as irregular. (3 Code Rep. €74; Stewart vs. Smith, 17 
 Wend. 517.) 
 
 If the parties sue in a particular character, that character 
 should be given in the process, as follows: 
 
 Administrators.— A. B and C D, administrators of all and 
 singular the goods and chattels, rights and credits, which were 
 of E F, deceased. 
 
 Executors. — A B and C D, executors of the last will and 
 testament of E F, deceased. 
 
 Surviving Execvior. — ^A B, surviving executor of the last 
 will, &c. 
 
158 V NEW YORK JUSTICE. 
 
 Survivor of Partners, or of Joint Creditors.— A. B, survivor 
 of A Band CD. 
 
 Husband and Wife, — A B, and C B, his wife. 
 
 Assignee of Bail Bond. — A B, assignee oi A P, Esq., SHeriff 
 of the eounly of 
 
 Assignee of Insolvent Debtor.— A. B, assignee of E F, an in- 
 solvent debtor. 
 
 Overseers of the Poor. — A B and C D, overseers of the poor 
 of the town of , in the county of 
 
 Plaintiff in an Action for a Penalty. — ^A B, who sues as well 
 for himself, as for the overseers of the poor of the town of 
 , in the county of 
 
 It is provided by statute, that when the name of any defend- 
 ant sued in a Justice's Court is not known to the plaintiff, he 
 may be described in a summons or wari^ant by a fictitious name; 
 and that, if a plea in abatement be interposed by such defend- 
 ant, the Justice before whom the suit is pending may amend the 
 proceedings according to the truth of the matter, and proceed 
 in the cause in like manner as if the defendant had been sued 
 by his right name. [Laws of 1830, chap. 320, ^ 37; 2 P. S. 
 274, § 282.)' Pleas in abatement having been abolished by the 
 Code, the Justice may permit the plaintiff to amend when the 
 answer is put in, if the objection be raised in the answer. 
 
 Joint debtors, it seems, may be sued by long summons, where 
 one of them resides in the county, though one of them be a non- 
 resident of the county. {Burghart vs. Rice, 2 Ben. 95.) 
 
 Since the Code, and^ previous to 1861, it was held that, al- 
 though the summons required the defendant to answer a claim 
 exceeding one hundred dollars in amount, it was not necessaiily 
 a nullity. The jurisdiction conferred on Justices in respect to 
 actions upon Justices' judl^ments, was not confined to cases in 
 which the claim did not exceed one hundred dollars; but in 
 such an action the Justice might render judgment for the amount 
 due on the judgment although it exceeded that amount. Hence, 
 although a summons issued by a Justice claimed damages ex- 
 ceeding one hundred dollars, the defendant should appear and 
 answer; as a Justice might have jurisdiction beyond that sum. 
 It is not necessary that, in an action on a Justice's judgment, 
 the summons should state that the complaint will be for that 
 cause. [Humphrey vs. Pe/rsons, 23 Barb. 313.) 
 
 The summons must be signed by the Justice, and may be 
 
LONG SUMMONS. 159 
 
 under seal or without seal. (2 B. S. 267, ^ 232.) It must be 
 entirely filled up, and have no blank, either in the date or 
 otherwise, at the time of its delivery to the officer to be execu- 
 ted^; else it is void. (id. § 233.) These provisions in regard 
 to the signing, sealing, and filling up of a summons, apply also 
 to a warrant, attachment, and execution, in civil proceedings. 
 Every Justice who violates the provision in regard to the filling 
 up of process, is guilty of a misdemeanor, and, on conviction, 
 is subject to fine or imprisonment, or both, in the discretion of 
 the Court; and every such conviction operates as a forfeiture 
 of the office of the Justice so convicted. ( id. ^ 236.) 
 
 All writs a,nd process must be in the name of the people of 
 this State, except where otherwise provided by law. (id. 276, 
 § 8.) All writs, process, proceedings, and records in any Court 
 within this State must be in the English language, (except that 
 the proper and known names of process, and technical words, 
 may be expressed in the language commonly used,) and must 
 be madp out on paper or parchment, in a fair, legible ch^rracter, 
 in words at length and not abbreviated; but such abbreviations 
 as are commonly used in the English language may be used, 
 and numbers may be expressed by Arabic figures, or Eoman 
 numerals, in the customary manner. (2 B. S. 276, § 9.) 
 
 A Justice cannot depute any part of his official power to 
 another; but he may depute another to do a specific act, with- 
 out giving him any discretionary power, as to direct one to fill 
 up a process., (10 Johns. 405; 20 id. 63; Borrodaile vs. Leek, 
 9 Barb. 611.) 
 
 A rail-road company may properly be sued by long summons. 
 The authority of a Justice to issue a long summons on the re- 
 quest of the plaintiff, is as ample as to issue a warrant or attach- 
 ment upon a special application and the proof required by law. 
 (^Barnes vs. Harris, 4 Corns. 374.) 
 
 [For form of Summons, see McCall's Clerk's Assistant, j). 318.] 
 
 A long summons must be made returnable not less than six 
 nor more than twelve days from its date. (2 B. S. 228, ^ 14.) 
 In computing the time, the day of the date is to be excluded, 
 and the return day included. (6 .Cow. 659; Columbia T. B. 
 Co. vs. Haywood, 10 Wen,d. 422.) If the twelfth day from the 
 
160 
 
 NEW YORK JUSTICE. 
 
 date would fall on Sunday, the summons must be made return- 
 able on the preceding Saturday; (7 Oow. 147; Broome vs. 
 Wellington, 1 Band. 664;) but if a Sunday intervenes in com- 
 puting the time, it must be included. {^King vs. Dowdall, 2 id. 
 131.) The, rule introduced by the Code, excluding Sunday if 
 it is the last day, only applies to acts the time for doing which 
 is prescribed by the Code. (§ 407.) 
 
 It is irregular to make any civil process returnable on Sun- 
 day; (5 Paige, 141; Boydys. Vanderkemp, 1 Barb. Oh. R. 273); 
 and civil process issued on that day is not a good commence- 
 ment of a suit. (Van Vechten vs. Paddock, 12 Johns. 178.) 
 
 If for over fifty dollars, it must be stamped. 
 
 2. Wakkaui. 
 
 A Justice must, upon application, issue a warrant in the fol 
 lowing cases: 1. Where the defendant is anon-resident, of the 
 county; 2. Where the plaintiff is a non-resident, and tenders 
 to the Justice security for the payment of any sum which may 
 be adjudged against him in the suit; 3. When it shall appear 
 to the satisfaction of the Justice, by the affidavit of the appli- 
 cant, or of any other witness, that the person against whom 
 such warrant is desired, is about to depart from the county, with 
 intent not to return thereto; 4. Where the defendant is an in- 
 habitant of the county, having a family, or is a freeholder of 
 the same county, and it shall in like manner appear to the satis- 
 faction of the JusticCj that the plaintiff will be in danger of 
 losing his debt or demand, unless such warrant be granted. 
 (2 R. S. 228, § 17.) 
 
 If the case in which the Justice is requested to issue a war- 
 rant, is clearly within one of these subdivisions, there* is still 
 another provision of" the statute which must be considered by 
 him before he issues the warrant. The thirty-first section of 
 the act to abolish imprisonment for debt provides as follows: 
 "No warrant shall issue against a defendant in any case in 
 which, by the provisions of the last preceding section, an execu- 
 tion on the judgment recovered could not be issued against, his 
 body, and whenever a warrant in such case shall issue, a like 
 affidavit shall be required as for the issuing of an execution by 
 the provisions of said section. {Laws of 1831, chaja. 300, ^ 31.) 
 The " last preceding section " thus referred to enacts as follows: 
 " No execution issued on any judgment rendered by any Jus- 
 
WARKANT, 161 
 
 tice of the Peace, upon any demand arising upon contract, 
 express or implied, or upon any other judgment founded upon 
 contract, whether issued by such Justice, or by the clerk of 
 the county, shall contain a clause authorizing an arrest or im- 
 prisonment of the person against whom the same shall issue, 
 unless it shall be proved, by the affidavit of the person in whose 
 favor such execution shall issue, or that of some other person, 
 to the satisfaction of such clerk or Justice, either, 1. That such 
 judgment was for the recovery of money collected by any 
 public officer; or, 2. For official misconduct or neglect of duty; 
 or, 3. For damages for misconduct or neglect, in any profes- 
 sional employment." (Laws of 1831, chap. 300, ^ 30; Wales 
 vs. Wkittemore, 2 Barb. 693.) 
 
 It will be seen, therefore, that an execution issued upon a 
 judgment rendered by a Justice upon a demand arising upon 
 contract express or implied, or upon any other judgment foun- 
 ded on contract, canncA authorize the arrest of the defendant, 
 unless the application for the execution be accompanied by an 
 affidavit which proves to the satisfaction of the Justice a case 
 falling within some one of the said three subdivisions; and, 
 where such execution cannot be issued, a warrant cannot be. 
 
 In all cases, on application for a warrant, the person apply- 
 ing must, by affidavit, state the facts and circumstances within 
 his knowledge, showing the grounds of his application, where- 
 by the Justice may the better judge of the propriety and ne- 
 cessity of issuing the warrant. (2 B. S, 229, ^ 19.) A mere 
 affidavit that a party believes he will be in danger of losing his 
 debt unless a warrant issues, is not enough. (3 Wend. 389; 
 13 id. 46; Whitney vs. Shufelt, I Den. 592.) 
 
 A Justice cannot, on his own knowledge, issue a warrant at 
 the suit of a non-resident, without oath, (Morey vs. Tobias, 
 12 Johns. 422.) 
 
 Where the first process is by summons when it should have 
 been by warrant, advantage may be taken of the error, by ob- 
 jection before the Justice, on the return 'of the summons, and 
 if Be err in deciding such objection, an appeal lies. {Boose 
 vs. Sherrill, 16 Wend. 33.) 
 
 A non-resident plaintiff may have a warra^nt against a resident 
 
 defendant from any Justice of the county, and need not apply 
 
 for it in person; but a warrant against a non-resident defendant 
 ' ^■■■11. 
 
162 NEW YORK JUSTICE. 
 
 must be procured from a Justice of the town in which the de- 
 fendant then happens to be. {Hunter ys. Burtis, 10 Wend. 358.) 
 The non-residence of one of two plaintiffs is not enough to 
 authorise the issuing of a wai-rant. {Oow. Treatise, 520.) 
 
 [For form of Affidavit for a Warrant in an Action for a 
 Wrong, see McCall's Clerk's Assistant, p. 320.] 
 
 [For form of Affidavit for a Wairard in an action on Con- 
 tract, see McCall's Cleek's Assistant, p. 319.] 
 
 Where the plaintiff is a non-resident of the county, and ap- 
 plies for a warrant, he must tender to the Justice security for 
 the payment of any sum which may be adjudged against him 
 in the suit. (2 R. S. 228, § 17.) So also, whenever a non- 
 resident plaintiff is not entitled to a warrant, and applies for a 
 short summons, as we shall see he may do, he must give the 
 like security. {Laws of 1831, cJiajp. 300, § 31; Trovers vs. 
 Mchols, 7 Wend. 434^ ' 
 
 [For form of Written Security on Issuing Warrant or Short 
 Summons, see McCall's Cleek's Assistant, pp. 319, 320.] 
 
 A warrant must be directed to some constable of the county 
 where the Justice issuing it resides, and must command the 
 constable to take the defendant and bring him before the Jus- 
 tice, to answer the complaint of the plaintiff; it must further 
 require the constable, after he shall have arrested the defendant, 
 to notify the plaintiff of the arrest. (2 R. S. 229, § 20.) The 
 Revised Statutes required the warrant to mention the plea, but 
 this is no longer necessary, any more than it is in a summons. 
 {Ante, p. 150.) 
 
 [For form of Warrant in a Civil Action, see McCall's 
 Cleek's Assistant, p. 319.] 
 
 A Justice iqay, upon application, issue either a summons or 
 warrant, at his option: 1. Against a defendant residing in the 
 same county, who is neither a freeholder of the county, nor an 
 inhabitant having a family; 2. Against the defendant upon 
 
SHORT SUMMONS. 163 
 
 ■whom a summons shall have been served only by leaving a 
 copy, or in any other way than Jby reading or delivering a copy 
 to him personally, and who shall not have appeared at the time 
 and place appointed in such summons, nor sJbiown good cause 
 for not appearing. But the suit instituted by such summons, 
 shall be deemed discontinued, unless the warrant be issued on 
 the same day of the return of the first summons, and if so issued, 
 the suit shall be deemed to have been continued thereby. (2 
 R. S. 228, § 18.) This power of the Justice must, however, be 
 exercised subject to the provisions of the thirty-first section of 
 the act to abolish imprisonment for debt, upon which we have 
 already commented. {Ante, pp. 160, 161.) Where a sum- 
 mons is the regular process, a warrant without oath, against a 
 freeholder, or an inhabitant having a family, is void; and, though 
 a summons or warrant may be issued against an inhabitant 
 having a family, or a freeholder, after personal service of the 
 summons, and the default of the defendant to appear, the plain- 
 tifi'must make his election in a reasonable time thereafter; and 
 where the warrant was issued twelve months after the sum- 
 mons, it was held not to be a continuation of the suit, and void. 
 {Gold vs. Bissell, 1 Wend. 210.) 
 
 3, Short Summons. 
 
 A short summons is the jaroper form of process to be issued 
 in favor of a non-resident plaintiff", suing as such, when the de- 
 fendant cannot be arrested under the provisions of the non- 
 imprisonment act. And a short summons or attachment is the 
 only process which can be issued in similar cases, against a non- 
 resident defendant; and any other process would be void. (1 
 Den. 175; Waters vs. Whittemore, 22 Barb. 593.) 
 
 The provisions of the act to abolish imprisonment for debt, 
 authorizing the issuing of a short summons, are as follows: 
 
 § 32. Whenever by the provisions of the last preceding sec- 
 , tion (31), no warrant can issue, and the plaintiff shall be anon- 
 resident of the county, and shall give the like proof of the fact, 
 and tender to the Justice the security now required by law to 
 entitle him to a warranU, the Justice shall issue a summons, 
 which may be made returnable not less than two nor more than 
 four days from the date thereof, and shall be seryed at least 
 two days before the time of appearance mentioned therein; and 
 
1'64 NEW YOEB^ JUSTICE. 
 
 if the same shall be returned personally seiTed, the same pro- 
 ceedings shall be had, and Ho longer adjournment granted than 
 in case of a warrant at the instance of a non-resident plaintiff. 
 {Laws of 1831, chap. 300, § 32.) 
 
 § 33. Whenever, by the provisions of the thirtieth section 
 of this act, no warrant can issue, and the defendant shall reside 
 out of the county, he shall be proceeded against by summons 
 or attachment, returnable not less than two, nor more than four 
 days from the date thereof, which shall be served at least two 
 days before the time of appearance mentioned therein; and if 
 such defendant be proceeded against otherwise, the Justice shall 
 h^ve no jurisdiction of the cause, {id. § 33.) 
 
 Where the plaintiff and defendant are both non-residents, the 
 summons ?nay issup under section thirty-three, without the giv- 
 ing of security; the process 'being founded on the defendant's 
 residence, and uot on the plaintiff's. {Ackerman vs. Finch,' lb 
 Wfind. 652.) Until the proof of non-residence is filed the issu- 
 ing a ^hort summons is wholly unauthorized; (Waters vs. 
 Whittemore, 13 Barb. 634;) and so until security is filed; 
 (Allen vs. Stone, 9 Barb. 60.) 
 
 [For form of Affidavit for Short Summons by Non-residenJI, 
 Plaintiff, see McCall's Clebk's Assistant, p. 318.] 
 
 [Fpr forms of Security to be given by Non-resident Plaintiff' 
 on a Short Summons, see McCall's Cleek's Assistant, p. 318.] 
 
 [For form of Short Summ.ons, see McCall's Clerk's Assis- 
 tant, p. 318.] 
 
 A short summons must be made returnable not less than two 
 nor more than four days from the date thereof (Laws of 1831, 
 chap. 300, §§ 32, 33.) In computing the time, the day of the 
 date is to be excluded, and the return day included; and if the 
 fourth day from the date would fall on Sunday, the summons 
 must be made returnable on the preceding Saturday; (Ante, p. 
 160;) but if a Sunday intervenes in computing the time, it must 
 be included. (King vs. Dowdall, 2 Sand. 13.) 
 
 If the summons is for more than fifty dollars, it must b^ 
 stamped. 
 
ATTACHMENT. 165 
 
 ^ , _ J 4. Attachment. 
 
 The;Eeyised Statutes provide, that an attachment against the 
 property of any debtor may be issued by a Justice of the Peace, 
 on the application of a creditor, in th^ manner hereafter set 
 forth, "whenever it shall satisfactorily appear to the Justice, that 
 such debtor has departed, or is about to depart, from the county 
 Tvliere he last resided, with intent to defraud his creditors, or to 
 avoid the service of any civil process, or that such debtor keeps 
 himself concealed with the Ij-ke intent. (2 E. S. 230, § 26.) 
 ^liph application may be made by any creditor, or by his per- 
 sonal representatives, having a demand against such debtor 
 personally, whether liquidated or not, arising upon contract, or 
 upon a judgment rendered within this State, amounting to one 
 hundred dollars, or any less sum. (id. § 27; Code, § 53.) 
 
 In addition to thje cases thus provided for, section thirty-four 
 of the non-imprisonment act provides, that any suit for the re- 
 covery of any debt or damage arising upon any contract express ' 
 or implied, or upon any judgment for one hundred dollars or 
 less, may be so commenced, whenever it shall satisfactorily ap- 
 pear to the Justice that the defendant is about to remove from 
 the county any of his property, with intent to defraud his cred- 
 itor, or has assigned, disposed of, or secreted, or is about to 
 assign^ dispose of, or secrete any of his property, with the like 
 intent, whether such defendant be a resident of this State or 
 not. {Laws of 1831, chap. 300, § 34; Laws of 1842, chap. 107, 
 § 1; Code, § 53.) 
 
 The application for eyery such attachment must be in writing. 
 (2 H. S. 230, § 28.) But before it can issue in- any case, the 
 plaintiff mi^st, by his own affidavit, or that of some other per- 
 son or persons, prove to the sa,tisfacti'on of the Justice, the facts 
 and' circumstances to entitle him to the same. {Laivs of 1831, 
 chap. 300, § 35.) The applicant must also, when the case is one 
 under the Revised Statutes, execute to the defendant, and deliver 
 to the Justice, a bond with sufficient surety, to be approved by \ 
 such Justice in writing upon such bond, in the penalty of two 
 hundred dollars, conditioned to pay such defendant all damages! 
 and costs which he may sustain, by reason of the issuing such 
 .attachment, if such plaintiff fail to recover judgment thereon,^ 
 and, if such judgment be recovered, that such plaintiff will pay. 
 
16G NEW YORK JUSTICE. 
 
 the defendant all moneys which shall be received by him from 
 any property levied upon by such attachment, over and above 
 the amount of such judgment, and interest and costs thereon. 
 (2 B. S. 230, § 29.) 
 
 Such bond extends to the final determination of the cause; 
 and where the plaintiff recovers a judgment before the Justice, 
 but it is reversed on appeal, the bond may be sued. (Ball vs. 
 Gardner, 21 Wend. 270.) 
 
 It will not do, instead of such bond, to_ execute a covenant to 
 pay $200, or to pay all damages and costs, &c. ; the bond is 
 necessary to give the Justice jurisdiction. (Homan vs. BrincJc- 
 erhoff, 1 Den. 1^4.) And a bond not truly setting forth the 
 suit in which the attachment issues is defective. {^Comfort vs. 
 QiUespie, 13 W&nd. 404.) 
 
 There is a general provision of the statute, in regard to all 
 bonds, that whenever a bond is required by law to be given by 
 any person, in order to entitle him to any right or privilege 
 conferred by law, or to commence any proceeding, it shall not 
 be necessary for such bond to conform in all respects to the 
 form thereof prescribed by any statute, but the same shall be 
 deemed sufficient if it conform thereto substantially, and do 
 not vary in any matter, to the prejudice of the rights of the 
 party, to whom or for whose benefit such bond shall have 
 been given; (2 R. S. 556, § 33;) and further, that whenever 
 such bond shall be defective in any respect, the Court, officer, 
 or body who would be authorized to receive the same, or to 
 entertain any proceedings in consequence of such bond, if the 
 same had been, perfect, may, on the application of all the 
 obligors therein, amend the same in any respect, and siich 
 bond shall thereupon be deemed valid from the time of the 
 execution thereof, (id. § 34.) A bond may be thus amended 
 in matters of substance, where an error has occurred through 
 inadvertence, or from a misapprehension of the law; as by 
 adding the names of other sureties, where the requisite num- 
 ber have not joined. But this must be done with the consent 
 of all the existing obligors in the bond. (^Potter vs. Baker, 
 4 Paige, 290.) 
 
 In addition to the affidavit above specified, where the attach- 
 ment is applied for under section thirty-four of the non-ifnprison- 
 ment act, before quoted, the plaintiff must, before any attach- 
 
ATTACHMENT. 167 
 
 ment can issue, by his own affidavit, or that of some other 
 person or persons, prove, to the satisfaction of the Justice, that 
 he has such a claim as is specified under the said thirty-fourth 
 , section against the defendant, over and above all discounts 
 which the defendant may have against him, specifying, as near 
 as may be, the amount of such claim, or the balance thereof; 
 {Laws of 1831, chap. 300, § 35;) and the plaintifi", or some one 
 on his behalf, must also execute a bond in the penalty of aX, 
 least one hundred dollars, with such sureties and upon such 
 condition as is above required in regard to an attachment 
 under the Revised Statutes, (id.) 
 
 The attachment issued in the foregoing cases must state the 
 amount of the debt swt)rn to by the applicant, and must com- 
 mand some constable of the county in which the Justice resides 
 to attach so much of the goods and chattels of the debtor as 
 will be sufficient to satisfy such debt, and safely to keep the 
 same, in order to satisfy any judgment that may be recovered 
 on such attachment, and to make return of his proceedings 
 thereon to the Justice who issued the same, at a time therein 
 to be specified, not less than six nor more than twelve days 
 from the date thereof (2 R. 8. 230, § 30.) The same rules 
 as to computing time and including Sunday must be observed 
 as in the case of a long summons. {Ante, p. 160.) 
 
 A Justice may, after the return -of an attachment issued by 
 him, amend it, by inserting the amount of the debt sworn to 
 by the applicant. {Near vs. Van Alstyne, 14 Tf'"e)id.,230.) 
 
 In addition to the attachment thus provided for, the thirty- 
 third section of the non-imprisonment act provides as follows: 
 
 § 33. Whenever, by the provision^^ of the nineteenth section 
 of this act, no warrant can issue, and the defendant shall reside 
 out of the county, he shall be proceeded against by summons 
 or attachment, returnable not less than two nor more than four 
 days from the date thereof, which shall be served at least two 
 days before the time of appeairance mentioned therein; and if 
 such defendant be proceeded against othei'wise, the Justice 
 ,shall have no jurisdiction of the cause. {Laws of 1831, chap. 
 300, § 33.) The same rules as to computing time and including 
 Sunday must be observed as in the case of a short summons. 
 {Ante, p. 164.)- 
 
 An attachment under section thirty-thrae of the non-imprisou- 
 
168 NEW YORK JUSTICE. 
 
 ment act is voidj if it be made returnable more than four days 
 after its date. {Webber vs. Gay, 24 Wend. 485.) 
 
 To authorize the issuing of an attachment by a Justice, under 
 the thirty-third section of the non-imprisonment act, against a 
 non-resident, the plaintiff must prove by his own affidavit, or 
 that of some other person or persons, to the satisfaction of the 
 Justice, the facts and circumstances to entitle him to the same; 
 and the plaintiff, or some one in his behalf, must also execute 
 a bond in the penalty of at least one hundred dollars, with 
 sueh sureities and upon such condition as is above required in re- 
 gard to an attachment under the Revised Statutes. (Laws of 1S31, 
 chap. 300, § 35; 4 Ben. 592; Bennet vs. Brown, 4 Com. 254.) 
 And the application for the attachment must be in writing. 
 
 Where the plaintiif and defendant ai-e both non-residents, 
 the attachment issues under section thirty-three, the process 
 being founded on the defendant's residence and not on the 
 plaintiff's. {Aeherman ys. Finch, 13 Wend. 65^.) 
 
 There are, therefore, two kinds of attachment, long and short. 
 The latter issues against a non-resident defendant, and may be 
 had when a short summons is also a proper process; either 
 being taken, at the option of ithe party. 
 
 A long attachment issues, when it is made to appear to the 
 satisfaction of the Justice to whom application is made, that 
 the debtor hjis departed, or is about to depart, from the county 
 where he' has last resided, with intent to defraud his creditors, 
 or to avoid the service of civil process, or that such debtor 
 keeps himself concealed, with the like intent; the application 
 being made by a creditor, or his personal representatives, 
 having a demand against such debtor personally, whether 
 liquidated or not, arising upon contract, or upon a judgment 
 rendered within this State, amounting to one hundred dollars, 
 or any less sum. The same process issues under the non-im- 
 prisonment act, when the Justice is satisfied that the defendant 
 is about to remove from the county some of his property, with 
 intent to, defraud his creditors, or that he has assigned, disposed 
 of, or secreted, or is about to assign, dispose of or secrete, any 
 of his property, with the like intent. 
 
 The Revised Statutes limit the nature of demands for which 
 attachments may be sued out, to those existing against the debtor 
 personally, whether liquidated or not, arising upon contract, 
 
ATTACHMENT. 169 
 
 or upon a judgment rendered withm tM» State. The non-im- 
 prisonment act extends the process to suits far the recovery of 
 any debt or damage arising upon contract, express or implied, 
 or upon any judgment for one hundred dollars or less, whether 
 rendered in this State or not, and whether the defendant be a 
 resident of this State or not. The demand, however, must be 
 against the debtor personally. 
 
 In all cases, the facts and circumstances relied on as the found- 
 ation for the issuing of an attachment must be set forth dis- 
 tinctly in the affidavit accompanying the application. (13 Wend. 
 404; 20 id. IT, 145; 4 Den. 118; Van Kirk vs. Wilds, 11 
 Barh. 520.) The affidavit, however, need not be signed by the 
 person making it; it is enough if he be sworn, and the Justice 
 take down and certify his testimony. (Mtllius vs. Shafer, 3 
 id. 60.) And the fact that, an affidavit upon which an attach- 
 ment is issued by a Justice under the non-imprisonment act, 
 contains facts which would have warranted an attachment under 
 the Eevised Statutes, is not a ground of error; provided the 
 process actually issued is warranted by the affidavit. {liosen- 
 fleM VS. Howard, 15 Barb. 546.) 
 
 An affidavit of a plaintiff that, from reports and information 
 he believes that his debtor keeps out of the county to avoid 
 paying Ms debts, and that he has been informed that r he has 
 departed, and, as his creditors say, for the purpose of defraud- 
 ing them, is not sufficient to authorize the issuing of an attach- 
 ment under the Revised Statutes. {Sallman vs. Bigelow, 10 
 Wend. 420.) An affidavit showing that a debtor keeps himself 
 concealed to avoid the service of a warrant issued under sec- 
 tion four of the non-imprisonment act, is not sufficient evidence 
 tiiat the latter keeps himself concealed to avoid the service of 
 civil'^TO(ies&, unless it also appears affirmatively that the charge 
 on which the warrant was issued was an intent only to commit 
 a fraud, or a fraudulent contracting of a debt. ' (Xyndfe vs. 
 Montgomery, 15 Wend. 461.) An affidavit swearing to the he-- 
 lief of the deponent as to the intent to defraud is sufficient, if 
 it also states directly and positively the facts and circumstances 
 on which the belief is founded. (20 id. 145; 1 Barb. 552; 
 Stewart vs. Brown, 16 id. 367.) 
 
 TJnder sections 34 and 35 of the non-imprisonment act, the 
 plaintiff must state in his affidavit, the origin of his; demand, 
 
170 
 
 NEW YORK JUSTICE. 
 
 that is, whether founded upon contract, or upon judgment, and 
 must also state the facts and circumstances upon which the 
 application is made, as that the defendant has declared his in- 
 tention to remove his property, &c., or has assigned it without 
 consideration, or secreted it, or any other circumstance indicat- 
 ing fraud; the mere belief of the plaintiff is not sujQScipnt. 
 {Smith vs. Luce, 14 Wend. 237.) . An affidavit in which the 
 facts are stated on belief only, is fatally defective. {Dewey vs. ' 
 Greene, 4 Den. 93.) 
 
 Where' a plaintiff applying to a Justice of the Peace, imder 
 section 34 of the non-impi'isonment act for an attachment against 
 the defendant, presented an affidavit in which he alleged that 
 the defendant was about to dispose of his property with intent 
 to defraud liis creditors, and assigned the existence of the follow- 
 ing facts as evidence of that intent, viz., that the defendant left 
 the county two months before, and went to Canada with intent 
 to remain there, taldng with him a portion of his goods; that he 
 had no family and but little property; that he was offering his 
 property for sale; that he had told the plaintiff that he would 
 be glad if he ever got his pay of him; that no civil process 
 could be served on him because he kept out of the State; and 
 that he refused to pay any thing on the plaintiff's debt; it was 
 held that there was at least some evidence of a fraudulent intent 
 for the Justice to act upon in issuing the attachment, and his 
 proceedings would not be reversed for insufficiency of proof in 
 that respect. {Rosenfield vs. Howard, 15 Barb. 546.) 
 
 The Justice who issues the attachment without the proof and 
 security required by the statute is a trespasser; but if the proof 
 and security be given, though the proof be false in fact, he is 
 not a trespasser. (3 Cow. 206; Schroejpel vs. Taylor, 10 Wend. 
 196.) 
 
 [For form of Application for an Attachment, see McCat.t.'s 
 Cleek's Assistant, p. 321.] 
 
 § 7. Affidavit for a long Attachment under the Revised 
 
 Statutes. 
 
 County, ss: 
 C D being duly sworn, says, that A B is justly indebted to 
 this deponent (or, to E F) in the sum of dollars, over and 
 
ATTACHMENT. . 171 
 
 above all discounts "which the said A B has against him, as near 
 as he can ascertain the same; which debt arose upon contract; 
 [or, upon a judgment rendered within this State, setting forth 
 the contract, when and where made, and what, or the judgment 
 when and where recovered, and for how muchf^ and that the 
 said A B has departed from the said county of , where 
 
 he last resided, with intent to defraud his creditors; \or, with 
 intent to avoid the service of some civil process, specifying 
 what; or, that the said A B is about to depart from the said 
 county of , &c., with intent, <fec., as above; or, that the 
 
 said A B keeps himself concealed within the said county of 
 
 , where he last resided, with intent, &c., as above ;^ and 
 this deponent further says, &c., [hei-e state distinctly the facts 
 and circumstances necessary to satisfy the Justice that there are 
 sufficient grounds for the attachment. C D. 
 
 Sworn to this day of , ) 
 18 , before me ) 
 
 H T C, Justice of the Peace. ^ 
 
 ^ 8. Affidavit for a long Aitachrrient, under the Non-Im/grison- 
 
 ment Act. 
 
 County, ss: 
 
 C D, being duly sworn, says, &c., [as in § 7, to the,* except 
 that the jud.gment need not be rendered within this State, and then 
 add:] and that the said A B is about to remove his property 
 from the said county of , with intent to defraud his 
 
 creditors; [or, that the said A B has assigned, disp<5sed of, or 
 secreted, his property, with intent to defraud his creditors; or, 
 that the said A B is about to assign, dispose of, or secrete, his 
 property, with intent to defraud his creditors;] and this de- 
 ponent further says, that, &c. : [set forth the facts and circum- 
 stances, as directed in § 7 J 
 
 Sworn, &c\, [as in § 7.J 
 
 ^ 9. Affidavit for a short Attachment against a JVbn-Resident. 
 
 County, ss: 
 
 C D, being duly sworn, says, &c., [as in \1 to the,* except 
 that the judgment need riot be rendered within this State, and then 
 addi\ and that the said A B is a resident of the town of , 
 
 in the county of , and out of the said county of ; 
 
 and that no warrant can issue against him, on the demand of 
 the said C D, according to the act to abolish imprisonment foi 
 debt aud to punish fraudulent debtors. 
 
 Sworn, &c., [as in ^7.] CD. 
 
172 NEW YORK JUSTICE. 
 
 ^ 10.» Bond on all AttachTnents, lon§ and short. 
 
 Know all men by these presents: that we, C D, and E F, 
 \if under the Revised Statvies, the creditor yrvust execute the bond, 
 with a surety; if under the non-imprisonment act, it must be exe- 
 cuted by the creditor, or some one on his behalf, and a surety; in 
 all cases, tioo obligors;^ are held and firmly bound unto A B, in 
 the sum pf two hundred dollars, \if under the non-imprisonment 
 act, say, one hundred dollars,] to be paid to th« said A B, his 
 executors, administi^ators, or assigns; for which payment, well 
 and truly to be made, we bind ourselves, our heirs, executors 
 and administrators, jointly and severally, firmly by these pre- 
 sents. Sealed with our seals, and dated the day of , 
 A. D., 18 .* 
 
 Whereas, the above bounden C D' has made application to J 
 H B, Esq., a Justice of the Peace of the town of , in the 
 
 county of , for an attachment in his favor, against the 
 
 property of the said A B, in pin-suanceof the provisions of the 
 Revised Statutes, [or, of the act to abolish imprisonment for debt 
 and to punish fraudulent debtors:]. Now, therefore, the condi- 
 tion of this obligation is such, that if the said obligors shall' 
 pay the said A B all damages and costs which he may sustain 
 by reason of the issuing of said attachment, if the said C D 
 shall fail to recover judgment thereon; and, if such judgment , 
 be recovered, the said C D shall pay the said A B all moneys 
 which shall be received by him from any property levied upon 
 by virtue of such attachment, over and above the amount of 
 such judgment, and interest and costs thereon, then this obli- 
 gation to be void, else of force. 
 
 Sealed and delivered ) CD. [l. s.l 
 
 in the presence of ^ E F. [l. s.J 
 
 JHB. 
 
 § 11. Approval of Justice on the Bond. 
 
 I approve of the within bond and of the sufficiency of the 
 sureties therein. 
 
 JHB, Justice, &o. 
 
 [For form of Attachment, see McCall's Cleek's Assistant, 
 p. 322.] 
 
SEEVINQ SUMMONS. 173 
 
 CHAPTER VII. 
 
 OF THE SERVICE AND RETURN OF PROCESS. 
 
 In the last chapter we enumerated the various kinds of pro- 
 cess by which an action may be commenced, and the proper 
 process to be issued in different cases. The next steps in the 
 progress of an action are the service and return of process. 
 
 1. Summons. 
 
 A long summons must in all cases be served at least six days 
 before the time of appearance mentioned therein. If the de- 
 fendant is found, it must be served by reading the same to him, 
 and (if required by him) delivering a copy thereof. If the de- 
 fendant is not found, it must be served by leaving a copy thereof 
 at the defendant's last place of abode, in the presence of some 
 one of the family, of suitable age and discretion, who must also 
 be informed of its contents. (2 R. 8. 228, § 15.) A short 
 summons must be served at least two days before the time of 
 aippearance mentioned therein, the manner of service being the 
 same as in the case of a long summons. {Laws of 1831, chap. 
 300, § 32.) In computing the time, the day of service must be 
 excluded, and the day of appearance included, so that a long 
 summons, returnable in the forenoon of the eighth day of a 
 month, is well served in the afternoon of the second day of the 
 month. (Colvmhia T. R. vs. Haywood, 10 Wend. 422.) If a 
 Sunday intervenes in computing the time, it must be included; 
 {King vs. Dowdall, 2 8and. 131;) so that where a short sum- 
 mons is returnable on Monday, its service on Saturday is good. 
 
 The constable must find the defendant if he can, but he is 
 not bound to look for him at any other than his usual place of 
 residence, or last place of abode. {Dudley vs. Staples, 15 
 Johns, 196.) Process must be properly served; and if it be 
 executed by a constable not havipg authority, the Justice has 
 no jurisdiction. {Reynolds vs. Orvis, 7 Oow. 269.) 
 
 A summons against a corporation must be served by deliver- 
 ing a copy thereof to the president or other head of the cor- 
 
174 NEW YORK JUSTICE. 
 
 poratioii, seoretkryj cashier, treasurer, or director, or managing 
 agent thereof. {Code, § 64, svid. W; id. % 134.) Such manag- 
 ing agent must be one whose agency extends to all the transac- 
 tions of the corporation. {Brewster vs. Mich. 0. M. JR. Co., 5 
 How. 183.) 
 
 The constable serving a summons must return thereupon, in 
 writing, the time and manner in which he executed it, and sign 
 his name thereto. (2 R. S. 228, § 16.) A failure to state in 
 the return the time of service, is ground for reversing the judg- 
 ment; (Steivart vs. Smith, 17 Wend. 517;) but the omission is 
 not a jurisdictional defect, which may be taken advantage of 
 collaterally. (Bromley y^. Smith, 2 Hill, 517.) A return that 
 the service was personal is sufficient: (LeggYS. Stillman, 2 Gow. 
 418 n) and so, also, are the words "by copy;" but the time of 
 service must be mentioned. {Hughes vs. McMulvey, 1 jSand. 92.) 
 
 An appearance before the Justice, for the purpose of making 
 an objection to the sufficiency' of a return, is not a waiver of 
 the defect. {Wheeler vs. Lam/pman, 14 Johns. 481.) 
 
 If there are several defendants, the constable should state the 
 time and manner of service upon each. But a valid service upon 
 one will give the Justice jurisdiction. {Fogg vs. Child: 13 
 Barb. 246.) , 
 
 § 12. Returns on Summons. 
 
 Personally served, December 10th, 1852. Fees 25 cts. 
 
 N P, Constable. 
 
 Personally served, December 10th, 1852, and copy left with' 
 defendant at his request. N P, Constable. 
 
 Served December 10th, 1852, by leaving a copy at defendant's 
 house in the presence of his wife, who was informed of its con- 
 tents, defendant not being found. N P, Constable. 
 
 2. Warrant. 
 
 A warrant must be served by arresting the defendant and 
 taking him forthwith before the Justice issuing the same. If 
 the Justice, on the return thereof, be absent, or unable to hear 
 or try, the cause, or it be made to appear to the Justice, by the 
 affidavit of the defendant, that the Justice is a material witness 
 in the cause, the constable must take the defendant before the 
 next Justice of the city or town, who is authorized and required 
 
EXEMPTION FROM AREEST. 175 
 
 to take, GjOgnizance of the cause, and proceed thereon as if the 
 warrant had been issued by him. (2 H. S. 229, § 21.) 
 
 A warrant is not spent, if the Justice is unable to try the 
 cause, and directs the parties to go before another Justice; nor 
 is the defendant entitled to be discharged, if the next Justice 
 before whom he is taken is also unable to try the cause. (^Arnold 
 Ys. Stevens 10 Wend. 514.) The constable has a right to detain, 
 the defendant, while making a bona fide eifort to find a magis- 
 trate to heai' the cause; (id.) but he cannot detain him longer 
 than twelve hours from the time he is brought before the Jus- 
 . tice, unless the trial of the cause be sooner commenced or it be 
 delayed at the instance of the defendant. (2 R. 8. 229, § 25.) 
 
 No manual touching of the body is necessary to an arrest; it 
 is sufficient if the party be within the power of the officer, and 
 submit to the arrest. {Gold ads. Bissell, 1 Wend. 210.) 
 
 A regular officer, acting within his proper district, is not 
 hound to show his warrant, though it be demanded. (Bellows 
 vs. Shannon, 2 Hill/SS; 10 Wend. 514; supra.) But where 
 the party submits to the arrest, the officer is bound to inform 
 him of the substance of the warrant or process, to the end that 
 the party, knowing for what he is arrested, may take the proper 
 legal measures to discharge himself; and the officer ought, either 
 before or at the moment of the arrest, to inform the jjarty _that 
 he has a warrant, or to make known to him, in some way, that 
 he comes in his character as an officer to execute legal process. 
 (^Bellows vs. Shannon, 2 ^ill, 86.) A special deputy is bound 
 to show his warrant on request, or the party may lawfully resist 
 him. {Frost vs. Thomas, 24 Wend. 418; 10 id. 514; 'supra.) 
 ■ No man can be arrested in his own dwelling-house, provided 
 the outer door be shut; although, if the outer door be open, 
 the officer, having gained admittance, may break open an inner 
 door to arrest the defendant. (16 Johns. 286; Hubbard vs. 
 'Mace, 17 id. 127.) And if a man let a house, excejjt one room, 
 which he'reserves for himself and occupies separately, an officer, 
 who enters through the open outer door of the house, may break 
 open the door of the inner room to arrest him; {Williams vs. 
 Spencer, 5 id. 352;) but a previous demand of admittance is 
 essential. (3 Bosanquet <& Puller, 223.) So, too, where an 
 officer had entered through an outer door of a house, and found 
 the chamber door of the defendant, who was a stranger, secured, 
 
176 NeHv YQfRK JUSTICE. 
 
 it was held, that he was justified in brealiing through a window, 
 having first infornaed the defendant that he had process to 
 serve. (8 Tavnton, 250; Qrahamis Practice, 107.) 
 
 The privilege annexed to, a dwelling-house does not extend 
 to a store, or warehouse, or barn, disconnected from it, and 
 forming no part of the curtilage. {Haggerty vs. Wilber, 16 
 John. 287.) Every man's house is looked upon by the law to 
 be his castle of defence and asylum, wherein he should suffer 
 no violence; but it will not protect a stranger. (3 BlacJc. 
 Oomm. 288.) 
 
 Every member of the Legislature is privileged from arrest on 
 civil process during his attendance at the session of the house to 
 which he belongs, except on process issued in any suit brought 
 against him for any forfeiture, misdemeanor, or breach of trust 
 in any office or place of public trust held by him. (1 R. 8. 
 154, ^ 6.) He is also entitled to the same privilege for fourteen 
 days previous to any such session, and also while going to and 
 returning from such session, provided the time of such going or 
 returning do not exceed fourteen days; {id. § 7;) but he is not 
 privileged from arrest after he has reached home, though the 
 fourteen days have not expired. (1 Johns. Cases, 415; Corey 
 vs. Russell, 4 Wend. 204.) He is also entitled to the same 
 privilege after any adjournment of the Legislature until its next 
 meeting, when such adjournment does not exceed fourteen days. 
 (1 R. 8, 154, \ 8.) He is also entitled to the same privilege 
 while absent with leave of the house to which he belongs. 
 {id. \ 9.) 
 
 , No officer of either house of the Legislature can, whilst in 
 actual attendance on the house, be arrested on civil process. 
 {id. \ 10.) 
 
 An attorney is privileged from arrest only during the actual 
 sitting of a court, and not even then, unless he is employed in 
 some cause pending, and then to be heard in such court. (2 R. 
 8. 290, % 86.) This exemptien of an attorney applies only 
 while he is in actual attendance upon the court; and an arrest, 
 if made while hfe remains at home, is good, though it prevent 
 his contemplated attendance. (4 Wend. 204; supra.) Nor does 
 the exemption extend beyond the time of his necessary atten- 
 dance on the court, {Oibbs vs. Loomis, 10 Johns. 463,) or to a 
 
EXEMPTION EROM ARREST. 177 
 
 case in which he is sued with any other person. (2 R. 8. 290, 
 ^ 86; Qay vs. Rogers, 3 Cow. 368.) 
 
 All officers of courts of record, such as judges, constables, 
 sheriffs, clerks, criers, &c., are privileged from arrest during 
 the actual sitting of any court of which they are officers, except 
 when sued with any other person. (2 R. 8. 290, \ 86.) The 
 sheriff is liable to arrest the same as an ordinary person except 
 during the sitting of the court. {Hill vs. Lott, 10 How. 46.) 
 
 The parties to a suit, and their witnesses, and all persons who 
 have any relation to a cause, wliich calls for their attendance in 
 court, as bail, &c., are protected from arrest on civil process, 
 in coi^iing to, attending upon, and returning from court. 
 (1 Games, 115; Tidd's Practice, 174; 2 Johns. 294; Boms vs. 
 Tucherman, 7 id. 538.) So is a person attending court on a re- 
 cognizance; {id. ;) a witness attending from another State to prove 
 a will; {JVbrris vs. Reach, 2 id. 294;) and parties and witnesses 
 attending a reference. (1 Gaines, 215; Glark vs. Grant, 2 Wend. 
 257.) But the witnesses must have been subpoenaed to protect 
 them. {Hardenbrook's case, 8 Abb. 416.) 
 
 No female, can be arrested or imprisoned on any process in 
 any civil action founded upon contract. (2 R. 8. 428, § 9,' 
 Gode, ^ 179.) Every officer who violates this provision of the 
 statute will forfeit to the party aggrieved three times the damar 
 ges found by the jury; and will also be liable to an indictment 
 for a misdemeanor, and upon conviction thereof, in addition to 
 any other punishment, will forfeit his office, (2 R. 8. 428, § 11.) 
 
 A married woman cannot be arrested on final process, ini 
 Justice's Court. (2 R. 8. 253, § 158.) 
 
 Persons belonging to the militia of this State are exempt from 
 arrest on civil process, from sum-ise to sunset an any day of 
 parade. (1 R, 8. 303, § 27.) Non-commissioned officers, musi- 
 cians, seamen, and marines, enlisted in the service of the United 
 States, and non-commissioned officers, privates and musicians, 
 "^ enlisted in the army of the United States, are exempt, during 
 their terms of service, from all personal arrests, for any debt 
 under the sum of twenty dollars, contracted before enlistment, 
 and for any debt contracted after enlistment. (1 U. 8. 8tatutes 
 at Large, 595; 2 id. 136.) 
 
 No acting commissioner, supeWntendent of repairs, collector, 
 
 or- lock-keeper, on any canal, can be held to bail, or taken by 
 12 
 
178 NEW YORK JUSTICE. 
 
 warrant, in any civi] suit, for any act done, or omitted to be 
 done by him, in the exercise of his official duties. ,(1 R. 8. 
 224, § 43.) 
 
 Every writ or process whereby the person of any ambassador 
 or other public minister of any foreign prince or state, author- 
 ized and received as such by the President of the United States, 
 or any domestic or domestic servant of any such ambassador or 
 other public minister, may be arrested or imprisoned, or his or 
 their goods or chattels be distrained, seized or attached, is 
 utterly null and void; and any person suing out, and any offi- 
 cer executing any such wi'it or process, is liable to imprisonment 
 and fine. (1 U. 8. 8tatutes at Large, 117.) But no citizen or 
 inhabitant of the United States, who has contracted debt^ prior 
 to his entering into the service of any ambassador, or other 
 public minister, which debts are still due and unpaid, is enti- 
 tled to such exemption, {id.) An ambassador from one sover-. 
 eign State to another, while traveling through the territories of 
 a State to which he is not accredited, in the execution of the 
 duties of his mission, is privileged from arrest on civil process. 
 {Solhrooh vs. Henderson, 4 Sand. 619.) 
 
 Members of Congress are, in all cases, except treason, felony, 
 and breach of the peace, privileged from arrest during their 
 attendance at the session of their respective houses, and in going 
 to and returning from the same. {Constitvtion JJ. 8. Art. I. 
 sec. 6; Lewis vs. Elmendorf, 2 Johns. Cases, 222.) 
 
 An escape is either negligent or voluntary; negligent when 
 the defendant escapes without the consent of the officer; volun- 
 tary, when the officer permits him to go at large. (OraharrUs 
 Practice, 148.) 
 
 After a negligent escape, the officer may, in all cases, retake 
 the defendant. (6 Modem Rep. 231, 295; LocJcwood vs. Mer- 
 sereau, 8 Abb. 206.) 
 
 After a voluntary escape on mesne process, the officer may 
 retake the defendant during the life of the process. (2 Term 
 Rep. 172; 7 Wend. 188; 10 id. 514; Olmstead vs. Raymond, 
 6 Johns. 62.) Mesne process, in contradistinction to final pro- 
 cess, or process of execution, is all such process as intervenes 
 between the beginning and the end of a suit. A warrant issued 
 by a Justice is held to be mesne process, although it is the first 
 process in a cause. {Arnold vs. 8teeves, 10 Wend. 514.) But, 
 
ESCAPE. 179 
 
 after a voluntary escape axi final process, a defendant cannot be 
 retaken on the same process; and the officer thus retaldng him 
 is liable to an action for false imprisonment. {Lansing vs. 
 Fleet, 2 Johns. Oases, 3; 5 Term Rep. 25.) 
 
 For an escape, either voluntary or negligent, an officer is 
 liable; but a recaption, or a voluntary return before action 
 Drought for the escape, is a good defence to such action. 
 (4 Johns. 45; 7 id. 175; M. D. Bank vs. Deyo, 6 Cow. 732.) 
 The statute provides, that in every action against an officer for 
 the escape of any prisoner, the defendant may plead or give 
 notice that before the commencement of such action, such pri- 
 soner voluntarily returned to the custody from which he had 
 escaped, or that such defendant retook such prisoner, and had 
 him within the custody from which he had escaped, before the 
 commencement of such action; and in either case, that such 
 escape was made without the consent of such defendant. 
 {2 R. 8.- 4.2,1, §64.) 
 
 Every officer who demands or receives any reward, gratuity, 
 or valuable thing, to procure, assist, connive at or permit any 
 escape of any prisoner in his custody, is guilty of a misde- 
 meanor; {id. § 65;) and, on conviction thereof, forfeits his 
 office, and is forever thereafter incapable of executing the 
 same. {id. § 66.) 
 
 If a constable, who has a defendant, in custody, discharge 
 him by order of the Justice, when the Justice has no authority 
 to make such order, the constable is liable for an escape. {Van 
 8lyck vs. Taylor, 9 Johns. 146.) So, too, where a constable, 
 after arresting a defendant on a warrant, left him, on his pro- 
 mising to follow, and the defendant was then arrested on a 
 criminal charge, it was held that there was a, voluntary escape, 
 for which the constable was liable. {Olmstead vs. Raymond, 
 6 Jvhns. 62.) 
 
 Consent or agreement by the plaintiff to an escape, after it 
 has happened, without consideration, will not discharge the 
 officer; otherwise, where it is upon good consideration. {Pow- 
 ers vs. Wilson, 7 Cow. 274.) 
 
 It is provided by statute, that no constable shall ask or re- 
 ceive any money or valuable thing from a defendant, or any 
 other person, as a consideration, reward or inducement for 
 omitting to arrest any defendant, or to carry biw before any 
 
180 NEW YORK JUSTICE. 
 
 Justice, or for delaying to take any party to prison, or for 
 postponing the sale of any pf operty under any execution, or 
 for omitting or delaying the execution of any duty pertaining 
 to his office. (2 R. S. 267, § 234.) Every constable offending 
 against this provision, is guilty of a misdemeanor, and, on 
 conviction, is subject to fine or imprisonment, or both, in the 
 discretion of the Court; and every such conviction operates as 
 a forfeiture of the office of the nonstable so convicted, (id. 
 § 236.) 
 
 When an officer arrests any person by virtue of any mesne, 
 or final process, or by virtue of any other civil process, he in 
 not allowed to charge such prisoner with any sum of money, or 
 demand or receive from him any sum of money, or any valuar 
 ble thing, for any drink, victuals, or other thing whatsoever, 
 furnished or provided for such officer, or for such prisoner, at 
 any tavern, ale-house, or public victualling or drinking house. 
 (id. 426, § 1.) • 
 
 Every officer, who has arrested any person, is forbidden, 
 while such person is in. his custody, to demand or receive any 
 gratuity or reward, upon any pretence whatever, for keeping 
 such prisbner out of jail, or for waiting for such prisoner to 
 find bail or agree with his adversary, or for waiting for any 
 other purpose, (id. § 2.) 
 
 If any person be arrested and kept in any house other than 
 the jail of the county, neither the officer arresting him, nor the 
 person in whose custody such prisoner may be, can demand or 
 receive from such prisoner any other or greater sum for lodg- 
 ing, drink, victuals, or other necessary things, than has been 
 prescribed by the Court of Sessions of the county; or, if no rate 
 has been prescribed by such Court, such officer or person cannot 
 receive ^ny other or greater sum than shall be allowed by a Jus- 
 tice of the Peace of the same town, upon proof that the Itodg- 
 ings or other things furnished were so furnished at the request 
 of such prisoner. And in no case can such officer or person 
 demand or receive any pay or compensation for any spirituous 
 liquors sold or delivered t^ such prisoner. (2 JR. S. 426, § 3.) 
 
 A prisoner so kept in any house may send for and have any 
 beer, ale, cider, victuals, and other necessary food, and such 
 bedding, linen, and other necessary things, as such prisoiier 
 shall see fit, where and from whom he pleases, without any 
 
DUTY OF CONSTABLE. 181 
 
 detaining or paying for tiie same, or any part thereof, to the 
 officer arresting him, or to the person in whose custody such 
 prisoner may be. (2 R. S. 427, § 4.) 
 
 No officer can demand or receive any money or valuable thing 
 whatsoever for the chamber rent of any prisoner, or any fees, 
 compensation, or reward, for the commitment, detaining in cus- 
 tody, release or discharge of any prisoner, other than such fees 
 as are expressly allowed by law./ (id. § 5.) ' , 
 
 Any officer who has arrested any prisoner in any county may 
 pass over, across, and through such parts of any other county or 
 counties as are in the ordinary route of travel from the place 
 where such prisoner has been arrested to the place where he is 
 to be conveyed and delivered, according to the command of the 
 process by which such arrest has been made. (id. § 6.) Such 
 conveyance will not in any case be deemed an escape; nor will 
 the prisoner so conveyed, or the officer having him in custody, 
 be liable to arrest on any civil process, while passing through 
 such other county or counties, {id. § 7.) If any person is 
 arrested under such circumstances, all persons concerned in the 
 same with Icnowledge of the previous arrest, are answerable as 
 for an unlawful arrest. (Love vs. Humphrey, 9 Wend. 204.) 
 
 Every officer who offends against any of the foregoing pro- 
 visions will forfeit to the party aggrieved three times the dam- 
 ages found by the jury; and will also be liable to an indictment 
 for a misdemeanor, and, upon conviction thereof, in addition to 
 any other punishment, will forfeit his office. (2 JR. S. 428, § 11.) 
 
 Every constable, serving a warrant, must return thereupon in 
 writing the manner in wliich he executed it, and the fact whether 
 he has or has not notified the plaintiff ^(id. 229, § 22.) 
 
 JFov form of Return on Warrant, see McCall's Clerk's 
 Assistant, p. 319. McCall's Constable's Guide, p. 169.] 
 
 3. Attachment. 
 
 All attachments must be served in tlie same manner. The 
 constable to whom a long attachment is directed and delivered 
 must execute the same at least six days before the return day; 
 and must attach, take into his custody, and safely keep such 
 part of the goods and chattels of the defendant as shall not be 
 exemjat from execution, and as shall be sufficient to satisfy the 
 
182 
 
 NEW YOBK JUSTICE. 
 
 plaintiff's demand. (2 R. S. 231, ^ 31.) He must immediately 
 make an inventory of the property seized, and must, if the 
 defendant can be found in the county, serve a copy of the 
 attachment and of the inventory, certified by him upon the 
 defendant personally; if the defendant cannot be found in the 
 county, the constable must leave a copy of the attachment and 
 of the inventory, certified by him, at the last place of residence 
 of the defendant; but if he have no place of residence in the 
 county where the goods and chattels are attached, the copy and 
 inventory must be left with the person in whose possession the 
 goods and chattels are found, (td; Laws of 1831, dm^. 
 300, \ 36.) 
 
 A short attachment must be executed at least two days before 
 the return day mentioned therein, and in the same maimer as a 
 long attachment. , 
 
 Where an attachment was issued against two persons as joint 
 debtors, and a return was made of personal service on one, but 
 nothing was said as to service upon the other, a judgment 
 obtained against both was reversed as to both. [Cook vs. 
 McDoel, 3 Den: Sn.) In such a case, if the attachment is 
 issued imdfer the non-imprisonment act, the Justice must either 
 dismiss the proceedings, or issue a summons. [McDoel vs. 
 Cook, 2 Corns. 110.) 
 
 The power and duty of a constable, in levying an attachment, 
 are similar to his power and duty on an execution. It is his 
 duty to search for and attach so much of the goods and chattels 
 of the debtor as will be sufficient to satisfy the amount of the 
 debt stated in the process. By goods and chattels are meant 
 chattels personal, as distinguished from chattels real, the former 
 including every thing that can be moved or transferred from 
 place to place. The distinction between real and personal chat- 
 tels will be treated of hereafter, under the head of Executions. 
 (Post, pari I., chap. XVII., subd. 4.) 
 
 On taking the goods, the constable must see that they are 
 safely kept. He is considered in the light of a bailee, and is 
 accountable to either party for ordinary negligence, by which 
 either sustains an injury; upon the, principle that the bailment 
 is mutually beneficial both to the bailor and bailee. [Ante, p. 
 57.) If, however, the goods be lost or desti'oyed without his 
 fault, he is not accountable. {Jenner vs. JoUffe, 6 Johns. 9.) 
 
BONDING PROPEKTY ATTACHED. 183 
 
 He must, therefore, provide ' such convenient place for the safe 
 kefepiug of the goods as shall comport with his rights and du- 
 ties in regard to them. ' 
 
 It is provided by statute, that no goods attached by a, con- 
 stable shall be removed by him, if a bond be given and deliv- 
 ered to such constable by any person, with sufficient surety, to 
 be approved by the constable, in a penalty double the sum 
 stated in the attachment to have been sworn to by the plaintiff, 
 conditioned that such goods and chattels shall be produced, to 
 satisfy any execution that may be issued upon any judgment 
 which shall be obtained by the plaintiff upon such attachment, 
 within six months after the date of such bond. (2 R. 8. 231, 
 § 32,)^ And it is further provided, that if any person shall claim 
 any goods or chattels attached by a constable, he may, after 
 such seizure, and at any time before execution shall have been 
 issued upon the judgment obtained on such attachment, execute 
 a bond to the plaintiff, with sureties to be approved by the con- 
 stable, or by the Justice who issued the attachment, in a penalty 
 double the value of the property attached, conditioned that, in 
 a suit to be brought on such bond, • within three months from 
 the date, such claimant will establish that he was the owner of 
 the goods seized at the time of such seizure, and, in case of his 
 failure to do so, that he will pay the value of the goods so 
 claimed, with interest, (id. § 33.) But the claimant must be 
 the general owjier of the goods attached. [Pierce vs. Kings- 
 mill, 25 Barb. 631.) Upon either of these bonds being exe- 
 cuted, and delivered to the constable, he is botmd to deliver up 
 the property seized by him, to the obligor in such bond. (2 
 R. a. 231, § 34.) 
 
 In regard to the bonds which are thus authorized to be exe- 
 cuted, and upon the execution of which the property attached 
 is to be delivered up, the bond in the first case is to be to the 
 constable, and in the last to the plaintiff. [Pierce vs. Kings- 
 will, 23 Barb. 631.) In the fonner case, also, the bond is to be 
 " with sufficient surety, to be approved by the constable," and 
 is not required to be executed by any particular person; and in 
 the latter, it must be executed by the claimant of the goods, 
 '.' with sureties," to be approved by the constable, or by the 
 Justice who issued the attachment. It would appear, therefore, 
 
184 NEW YORK JUSTICE. 
 
 that in the latter case two sureties, at least, should be required 
 by the constable. {Smith vs. McFall, 18 Wend. 631.) 
 
 The provisions of the Eevised Statutes respecting attachments 
 in Justices' Courts — which direct that if a third person claims 
 goods attached by any constable, he may require a delivery to 
 him by executing a bond to the plaintiff in double the" value of 
 the property attached, — are for the benefit of the real owner as 
 well as for that of the plaintiff; and a bond for less than double 
 the value of the property, though it be for more than double 
 the amount of the debt for which the attachment was issued, is 
 insufficient. {Kamena vs. Wanner, 6 Ahb. 193.) 
 
 The constable and Justice have a discretion to exercise, as to 
 the sufficiency of the security to be taken, and will undoubtedly 
 be protected, if they exercise it in good faith. ' It cannot be 
 doubted, that any man reputed to be in good circumstances, and 
 apparently of ample property to pay the penalty, being at the 
 same time a householder of the county, would answer the de- 
 scription of sufficient surety", within the spirit of the act; and in 
 such case, the officer would be justified in taking such bond, 
 even though the surety should in the end prove insolvent. But 
 the officer would, on the other hand, certainly be liable for the 
 plaintiff's loss, should he accept a man whom he knew to be, 
 or who was reputed to be, in doubtful circumstances; and in 
 such case, very slight proof of insufficiency would be enough to 
 throw upon the officer the burden of showing that he acted with 
 due caution. The security ought either to be laiown to him to 
 be sufficient, or he ought to take time to inquire in regard to it. 
 (1 Oow. Treatise, 569.) 
 
 Where any surety offered is a stranger to the officer, or he is 
 unacquainted with his circumstances, or doubts his sufficiency, 
 he has power, for the purpose of ascertaining such sufficiency, 
 to administer an oath to the person so offered, and ought so to 
 dOi (2 R. 8. 552, § 9.) If he do this, and the surety prove 
 his sufficiency, the officer cannot be held liable, for he has done 
 all the law requires of him. 
 
 The bond to be given to prevent the removal of the goods 
 attached, is to be in the penalty of double the debt sworn to 
 by the plaintiff; the penalty of the claimant's bond is to be 
 double the value of the property attached. ' 
 
BONDING PEOPERTY ATTACHED. 185 
 
 [For form oi B.ond to prevent the Removal of Goods attached, 
 see McGAUCi's Clerk's Assistant, p. 323: Constable's Guide, 
 p. 172. 
 
 The surety in this bond is to be approved by the constable; 
 and although the statute does not require that his approval 
 should be written or endorsed on the bond, yet it is proper 
 that this should be done. An acceptance of the bond by the 
 constable, without objection to the sufficiency of the surety, 
 would, however be deemed an approval. This approval, if in 
 writing, may be in the following form: 
 
 I approve of the within bond, and of the sufficiency of the 
 sureties therein. 
 
 January 1st, 1853. E F, Constable. 
 
 Where property is taken under an attachment, the lien cre- 
 ated, thereby continues, notwithstanding the giving of a bond 
 by the debtor for its production, until the issuing of an execu- 
 tion, and a reasonable time thereafter to make a levy. But if, 
 in the mean time, the p%perty be removed by the debtor be- 
 yond the Jui'isdiction of the Justice who issued the attachment, 
 and it be there seized under another attachment, the lien is 
 gone, notwithstanding the issuing of an execution on the judg- 
 ment under the first attachment. {Sterling, vs. Welcome, 20 
 Wend. 238.) 
 
 [For form of Bond by Claimant of Property attached, see 
 McCall's Clbek's Assistant, p. 323; Constable's Guide, 
 p. 173, No. 25.] 
 
 The sureties in this bond must be approved, either by the 
 constable, or by the Justice who issued the attachment. The 
 form of approval given for the preceding bond will apply to 
 this case. 
 
 There can be no difficulty in ascertaining the amount of pen- 
 
 ' alty to be inserted in the bond given to prevent the removal 
 
 of goods attached. But how and in what manner, in the other 
 
 case, is the officer to fix the value of the property attached? 
 
 The statute makes no provision on this subject. Although it 
 
186 NEW YORK JUSTICE. 
 
 is provided, (2 B. S. 5,52, § 9,) that whenever any officer is 
 authorized or required by law to take or approve any sureties, 
 he is also authorized to administer an oath to every person who 
 IS offered as such surety, to ascertain his sufficiency, yet no 
 authority is given to the officer to administer an oath to, and 
 examine witnesses, in order to ascertain the value of the pro- 
 perty. Therefore, an oath administered by the officer would 
 be nugatory, and no indictment for perjury would lie upon it; 
 and hence that course should not be adopted. There would 
 seem to be no other way, thaji for the officer to satisfy himself 
 of the value, by advising with persons of judgment, or other- 
 wise, as he may see fit, and then to double that value, and in- 
 sert it in the bond by way of penalty. If the sureties should 
 then refuse to execute the bond, he may, undoubtedly, remove 
 the property. (1 Qow. Treatise, 571.) 
 
 Notwithstanding the provision of the statute above cited, 
 authorizing a bond to prevent the removal of goods atached, 
 the constable may, if no such bond- be tendered, take a receipt 
 for the future delivery of the goods, in the same manner as 
 under a levy by virtue of an execution. There is nothing in 
 the statute inhibiting the use of a receiptor; and convenience 
 and even necessity require that the practice should be sus- 
 tained. When a receipt is taken, the property is still in the 
 custody of the constable, by intendment of law; and he is 
 responsible for it in like manner and to the same extent, as 
 though hte had it in his actual possession. {Harvey vs. Lane, 
 12 Wend. 563.) 
 
 The property is protected against other attachments, execu- 
 tions, &c., whether it be removed by the constable, or left with 
 a receiptor, or with the defendant on a bond for its delivery. 
 {Van Loan vs. Kline, 10 Johns. 131.) 
 
 Having taken the goods, the constable is required imme- 
 diately to make an inventory of them, and to serve a copy of 
 the attachment and of the inventory, certified by him, on the 
 defendant personally, if he can be found in the county. If he 
 cannot be so found, then the constable must leave a copy of 
 the attachment and of the inventory, certified by him, at the 
 last place of residence of the defendant: but if he have no 
 place of residence in the couinty where the goods and chattels 
 
INVENTORY. , 187 
 
 are attached, the copy and inventory must be left with the per- 
 son in whose possession the goods and chattels are found. 
 
 It is customary, especially where the articles attached are 
 numerous, for the con^able to make his inventory of them on a 
 separate piece of paper, and to annex a copy of such inven- 
 tory, by a wafer, or otherwise, to the attachment. The copy 
 of the attachment and of the inventory required to be served, 
 may be certified by the constable thus: " Copy, A B, Constable." 
 
 The copy inventory, to be returned with the attachment, and 
 the copy to be served, may be in the following form: 
 
 Copy of an inventory of property, this day seized by me, by 
 virtue of the annexed attachment, [or, by virtue of an attach- 
 ment of which the annexed is a copy:] 
 
 One feather-bed, One clock. 
 
 One bureau. One gray horse, &c. 
 
 A B, Constable. 
 
 The copy of the attachment and inventory to be served should 
 not be left at a house, or store, where the defendant has only 
 stopped while traveling; for it would be absurd to consider 
 that as his last place of residence. It should be left at his 
 usual residence. [Dudley vs. Staples, 15 Johns. 196.) 
 
 The constable must execute the attachment, that is, he must 
 take the goods, make the inventory, and serve the copy of the 
 attachment and of the inventory, all at least six days before the 
 return day in the case of a long: attachment, and two days in 
 the case of a short attachment. 
 
 Havins: executed the attachment, the constable must make a 
 return thereof at the day named therein for that purpose, with 
 all his proceedings thereon, in wilting, subscribed by him, with 
 a copy of the inventory of the goods attached, certified by him, 
 and with any bond Avhich may have been executed and deliv- 
 ered to him pursuant to the provision of the statute before 
 cited; (2 B. jS. 231, ^35;) and the return must also state speci- 
 fically, whether the copy of the attachment and of the inventory 
 was or was not personally served upon the defendant. (Laws 
 of 1831, chap. 300, § 36.) 
 
 The return should specify the particular manner in which 
 the attachment was executed. The day of attaching the goods, 
 and of serving or leaving' the copy, ought also to be specified 
 
188 NEW YORK JUSTICE. 
 
 in the return; and a certified copy o^the inventory must be 
 annexed to the original attachment. The return should be en- 
 dorsed on the original attachment. {Itosenfield vs. Howard, 
 15 Bavh. 546.) 
 
 The return is, like all other acts required of a constable by 
 law, a part of his official duty. If he makes a false return, an 
 action will lie against liim at the suit of the party injured; (14 
 Johns. 481; Pust^mm vs. Man, 3 Wend. 202;) and if he does so 
 wilfully and corruptly, he may also be indicted for a misde- 
 meanor, (id.) 
 
 [For form of Return to Attachment, see McCall's Clerk's 
 Assistant, p. 324, McCall's Constable's Guide, p. 174] 
 
 This return of the constable is, without doubt, equally con- 
 clusive with that upon a summons, and cannot be drawn in 
 question, except in an action for a false return, or upon indict- 
 ment. {Wheeler vs. Lampman, 14 Johns. 482.) 
 
 If the attachment is issued under the non-imprisonment act, 
 and appears by the constable's return to have been personally 
 served upon the defendant, the Justice must, on the return day, 
 proceed to hear and determine the cause in the same manner 
 as upon a summons returned personally served. {Laws of 
 1831, chap. 300, § 7.) But "if, by the return, it appear that 
 property was attached, and that a copy of the inventory and 
 attachment was not personally served, and the defendant does 
 not appear, the plaintiff may take out a summons against him; 
 upon the return of which, personally served, or that "the de- 
 fendant cannot be, found, after diligent inquiry," then, in either 
 case, the Justice must proceed to hear and determine the cause, 
 in the same manner as upon a summons returned personally 
 served, {id. % 38 ; Taylor vs. Harker, 1 E. D. Smith, 391.) It 
 is presumed that this return of not found, should be in the 
 words of the statute as just quoted. Where a constable, in 
 his return to an attachment issued by a Justice under the non- 
 imprisonment act, stated that he had seized the goods and chat- 
 tels mentioned in the inventory annexed, and that the defm,danl 
 not being found in the county, he left a copy of the attachment, 
 &c., duly certified by him, with B, in whose possession the 
 goods were found, "the defendant having no place of residence 
 
PROCESS GENERALLY. 189 
 
 in the county of C," it was held that this was sufficient to 
 authorize the issuing of a summons by the Justice, under sec- 
 tion 38 of the act. Such a return must be understood as alleg- 
 ing that no personal service has been made. (15 Barb. 546; 
 mprm) The statute prescribes no form for this summons, 
 neither does it state what time may intervene between the date 
 and return. In the absence of any provision on this subject, 
 the ordinary form of summons, {arde, Form, § 6,) should be 
 used. And it is probable that the time between its date and 
 return should be regulated by the character of the attachment 
 which precedes it; if a long attachment, the summons should be 
 made returnable in not less than six, nor more than twelve days 
 from date; if a short attachment, not less than two, nor more 
 than four days from date. (1 Cow. Treatise, 575.) 
 
 Where an attachment is issued by a Justice, under sections 
 26 and 27 of the provisions of the Revised Statutes, the Justice 
 is not authorized to issue summons upon the return of the attach- 
 ment; but must enter judgment upon the attachment, without 
 a summons. {Stewart vs. Brown, 16 Barb. 367.) 
 
 4. Process Generally. ^ 
 
 A constable cannot make a deputy to execute any process 
 directed and delivered to him; but must execute it in his own 
 proper person, (2 R. 8. 273, § 73; Dows vs. McGlynn, 6 
 Abb. 241,) and must himself sign his return. [^Reno vs. Finder, 
 24 Barb. 423.) 
 
 Every Justice who issues any civil process, except a venire, 
 may, whenever he judges it expedient, on the request of a party, 
 by written authority endorsed on such process, empower any 
 proper person, being of lawful age, and not a party in interest 
 in the suit to execute the same. The person so empowered 
 possesses all the authority of a constable in relation to the exe- 
 cution of such process, and is subject to the same obligations, 
 but cannot receive any fee or reward for his services thereon. 
 {2 R. 8. 273, §§ 271, 272.) 
 
 A constable may legally serve a summons in his own favor. 
 (2 Cow. 436; Futnam vs. Man, 3 Wend. 202;) (But not on cor- 
 porations,) Code, §§ 64, 133.) 
 
 If an officer execute process in an unreasonable and oppres- 
 sive manner with a malicious design to vex and oppress a de- 
 
.190 NEW YORK JUSTICE. 
 
 fendant, be is liable to an action. (^Rogers vs. Brewster, 5 Johns. 
 125.) And if a person be brought into this State on criminal 
 process used as a mere pretext, and then arrested' in a civil ac- 
 tion, the arrest is void. {Williams vs. Bacon, 10 Wend. 636.) 
 
 No writ, process, or other prc^ceeding of any Court of Justiae, 
 in a civil action, can be served or executed on Sunday; such 
 service is void, and the party ofFen^ding is subject to damages, 
 at the suit of any person aggrieved. (1 R. S. 675, ^ 69; 3 
 Johns. 25^; Sayles vs. Smith, 12 Wend. 59.) And if a person 
 be detained on Sunday, against his will, or on criminal process 
 used as a mere pretext, in order to be served with civil process 
 on Monday, the service will be void. (Williams vs. Bacon, 10 
 id. 636.) But if a defendant escape from an officer, without 
 his assent, he may be retaken on civil process on Sunday; 
 (7 Johns. 155;) though an original service of such process on 
 that day is void. {Nicolls vs. Ingersoll, 7 Johis. 155.) 
 
 Any person who knowingly and maliciously causes or pro- 
 cures any process issued from a Justice's Court, in a civil suit, 
 to be served on Saturday, upon any person whose religious faith 
 and practice is to keep that day as a day set apart by divine 
 command as the Sabbath of rest from labor, and dedicated to 
 the worship of God, or serves upon any such person any such 
 process which is made returnable on said day, or procures any 
 suit, pending in such Court against any such person, to be ad- 
 ioumed to be tried on said day, is guilty of a misdemeanor, and, 
 on conviction thereof, is subject to a fine not exceeding one 
 hundred dollars, or imprisonment not exceeding thirty days, or 
 both. {Laws of 1847, chap. 349.) The process in such case 
 would be void; for, when a statute inflict^ a penalty for doing 
 an act, such act is unlawful, though it be not in terms prohibited 
 or declared to be illegal. {Griffith vs. Wells, 3 Den. 226.) 
 
 Whenever an election or town meeting is held in any city or 
 town, no civil process, or proceeding in the nature of a civil 
 process, can be served on any elector entitled to vote in such 
 city or towp, on the day of such election or town meeting, 
 {Laws of 1842, chap. 130, title 1, ^ 4; 1 R, S. 342, ^ 10.) Ser- 
 vice made on such day, on an elector, is void. {Meeks vs. Nbx- 
 on; 1 Abb. 280.) 
 
 iA Justice may amend clerical mistakes, by filling up blanks 
 In process issued by himself, after its return; (14 Wend. 230; 
 
SUBSTITUTED LIENS. 191 
 
 Fulton Ys. Heaton, 1 Bari. 552;) as, by altering the date and/ 
 return of a summons after it has been served. {Arnold vs./ 
 Malthy, 4 Dm. 498.) ^ 
 
 A constable is protected in the execution of process, if it ap- 
 pears regular on its face. If it shows on its face that the Court 
 has jurisdiction of the subject matter, and nothing appears on 
 it to apprise the officer that the Court has not jurisdiction also 
 of the person of the party to be affijcted by the process, he will 
 be protected in executing it, even though it is issued by a Court 
 which in fact has not jurisdiction in the case. (5 Wend. 170; 
 Van Etten vs. Hurst, 6 Hill, 311.) 
 
 ■ Every officer serving process must, upon the request of the 
 party served, and without charging or receiving any compensa- 
 tion therefor, deliver to such party a copy thereof. (2 R. 8. 
 440, § 70.) ^ 
 
 Every officer, to whom any process is delivered, must execute 
 the same according to the command thereof, and must make 
 due return of his proceedings thereon, which return must be 
 signed by him. For any violation of this provision, such officer 
 is liable to an action at the suit of any party aggrieved, for the 
 damages sustained by him, in addition to any other fine, punish- 
 ment, or proceeding, which may be authorized by law. (id. § 77.) 
 
 Whenever a public officer, authorized to^execute any process 
 delivered to him, finds or has reason to apprehend, that resist- 
 ance will be made to the execution of such process, he is author- 
 ized to command every male inhabitant of his county, or as 
 many as he shall think proper, and with such arms as he shall 
 direct, and any military company or companies in said county, 
 armed and equippeif, to assist him in overcoming such resist- 
 ance, and, if necessary, in seizing, arresting, and confining the 
 resisters, their aiders and abettors, to be dealt with according 
 to law. (2 B. jS. 441, § 80; Zaws of 1845, chap. 69, § 18.) 
 Every person so commanded by an officer to assist him in the 
 execution of process, who refuses, or, without lawful cause, 
 neglects to obey such command, is guilty of a misdemeanor, and 
 subject to fine and imjDrisonment. (2 B. S. 441, ^ 82.) 
 
 5. Substituted Service. 
 
 An act passed June 30, 1853, (chap. 511,) to facilitate the serv- 
 ice of process in certain cases, provides as follows: 
 
192 NEW YOEK JUSTICE 
 
 Whenever it shall satisfactorily a?ppear to any Court or any 
 Judge of the Supreme Court, or any county Judge, by the 
 return or affidavit of any sheriflF, deputy sheriff^ or constable, 
 authorized to serve or execute any process or paper for the com- 
 mencement, or in the prosecution, of any action or proceeding, 
 that proper and diligent effort has been made to serve any such 
 process or paper on any defendant in any such action, residing 
 in this State, and that such defendant cannot be found, or, if 
 found, avoids or evades such service, so that the same cannot be 
 made personally, by such proper diligence and effort, such 
 Court or Judge may, by order, direct the service of any sum- 
 mons, subpoena, notice, or other process or paper, to be made 
 by leaving a copy thereof at the residence of the person to be 
 served, with some person of proper age, if admittance can be 
 obtained, and, such proper person found, -who -will receive the 
 same, and if admittance cannot be obtained, or any such proper 
 person found, who will receive the same, by affixing the same 
 to the outer or other door of said residence, and by putting 
 another copy thereof, properly folded or enveloped, ajid directed 
 to the person to be served, at his place of residence, into the 
 post-office in the town or city where such defendant resides, and 
 paying the postage thereon. On filing with the clerk of the 
 county where such defendant resides, or the county in which 
 the complaint in any such action is by law to be filed, an affida- 
 vit showing service according to such order, such summons, 
 subpoena, order, notice, or other process 6r paper, shall be 
 deemed served, and the same proceedings may be taken there- 
 on as if the same had been served by delivery to such defendant 
 personally or otherwise as by law now re^iired; but the Coiirt 
 may, upon any application by them deemed reasonable, at any 
 time permit any defendant to appear and defend, or have such 
 other relief in any action Or proceeding founded on any suc}i 
 service as the nature of the case may require. ■* 
 
 / 6. Replevin. 
 
 The action of replevin at common law lay to recover goods 
 which had been tortiously taken by the defendant, together 
 with damages for their detention, and was confined to cases 
 where trespass would have been sustainable, on account of the 
 tortiousness of the original taking. (Gra. Prac. 84, 2d ed.) 
 
REPLEVIN. 193 
 
 In tbe code this is called an actioii of claim and delivery of 
 personal property, embracing substantially every thing in the 
 former action of replevin, modified only in form. {McGwrdy 
 vs. Broion, 1 Duer, 101, 105.) * 
 
 The action lies wherever the plaintifi" is entitled to the im- 
 mediate possession of the property, and when it has been 
 wrongfully taken, or is wrongfully detained from him. {Pang- 
 burn vs. Patndge, 7 Johns. 140.) It is not necessary that he | 
 should be the owner, but only entitled to the possession, {Neff 
 vs. Thompson, 8 Barb. 213,) and that, too, if it is in his pos- 
 session by way of a lien. {Baker vs. Hoag, 3 8eld. 555.) In 
 general, goods in the custody of the law cannot be replevied. 
 {Hall vs. Tiittle, 2 Wend. 475.) But it will lie where the pro- 
 perty is taken under process against a third party. {Judd vs. 
 Fox, 9 Oow. 259.) 
 
 If the original taking was lawful, the action must then be 
 for detaining the property. {Randall vs. Cook, 17 Wend. 63.) 
 And in such cases there must be a demand for the goods before 
 suit brought. It is advisable always to demand the goods be- 
 fore suit brought, but it is not always necessary where the 
 taking was tortious and unlawful. {Zachrisson vs. AJiman, 2 
 Sandf. 68.) 
 
 Formerly this action could not be brought in a Justice's 
 Court; but by an amendment to the Code, in 1860, chap. 131, 
 the jurisdiction of Justices' Courts was extended to an action 
 to recover the possession of personal property claimed, the 
 value of which, as stated in the affidavit of the plaintiff, his 
 agent or attorney, shall not exceed the sum of one hundred 
 dollars. 
 
 The plaintiff in such action, at the time of issuing the sum- 
 mons, but not afterwards, may claim the immediate delivery 
 of such property, as hereinafter provided. 
 
 Before any process shall be issued in an action to recover 
 the possession of personal property, the plaintiff, his agent or 
 attorney, shall make proof by affidavit, showing, 
 
 1. That the plaintiff is the owner, or entitled to immediate 
 possession of the property claimed, particularly describing the 
 same. 
 
 2. That such property is wrongfully withheld or detained by 
 the dfefendant. 
 
 13 
 
194 NEW YORK JUSTICE. 
 
 3. The cause of such detention or withholding thereof, ac- 
 cording to the best knowledge, information, and belief of the 
 person making the affidavit. 
 
 4. That said pergonal property has not been taken for any 
 tax, fine, or assessment pursuant to statute; or seized by virtue 
 of an execution or attachment against the property of said 
 plaintifi", or, if so seized, that it is exempt from such seizure 
 by statute. 
 
 5. [fhe actual value of said personal property. 
 
 On receipt of such affidavit, and an und.ertaking in writing, 
 executed by one or more sufficient sureties, to be approved by 
 the Justice of the Peace before whom such action is com- 
 menced, to the efiect that they are bound in double the value 
 of such property, as stated in said affidavit for the prosecution 
 of said action, and for the return of said property to the de- 
 fendant, if return thereof be adjudged,, and for the payment to 
 him of such sum as may for any cause be recovered against said 
 plaintiff, the justice shall endorse upon said affidavit a direction 
 to any constable of the county in which said justice shall reside, 
 requiring said constable to take the property described therein 
 from the defendant, and keep the same to be disposed of accord- 
 ing to law; and the said justice shall at the same time issue a 
 summons directed to the defendant, and requiring him to ap- 
 pear before said justice, at a time and place to be therein spe- 
 cified, and not more than twelve days from the date thereof, 
 to answer the complaint of said plaintifi"; and the said sum- 
 mons shall contain a notice to the defendant that in ca^e he 
 shall fail to appear at the time and place therein mentioned, 
 the plaintiff will have judgment for the possession- of the pro- 
 perty described in said affidavit, with the costs and disburse- 
 ments of said action. 
 
 The constable to whom said affidavit, indorsement and sum- 
 mons shall be delivered, shall forthwith take the property de- 
 scribed in said affidavit, if he can find the same, and shall keep 
 the same in his custody. He shall thereupon, without delay, 
 serve upon said defendant a copy of such affidavit, notice and 
 summons, by delivering the same to him personally, if he can 
 be found in said county; if not found, to the agent of the de- 
 fendant in whose possession said property shall be found; if 
 neither can be found, by leaving such copies at the last or 
 
REPLEVIN. 195 
 
 usual place of abode of the defendant, with some person of 
 suitable age and discretion, a;nd shall forthwith make a return 
 of his proceedings thereon, and the manner of serving the 
 same, to the justice'who issued the said simimons. 
 
 The defendant may at any time after such service, and at 
 least two days before the return day o"f said summons, serve 
 upon the plaintiff, or upon the constable who made such ser- 
 vice, a notice in writing that he excepts to the sureties in said 
 bond or undertaldng; and if he fail to do so, all objection 
 thereto shall be waived. If such notice be served, the sureties 
 shall justify, or the plaintiff give new sureties oil the return 
 day of said summons, who shall then appear and justify, or 
 said justice shall order said property deKvered to defendant, 
 and shall also render judgment for defendant's costs and dis- 
 bursements. 
 
 At any time before the return day of said summons, the said 
 defendant may, if he has not excepted to plaintiff's sureties, 
 require the return of said property to him, upon giving to the 
 plaintiff, and filing the same with the justice, a written under- 
 taking, with one or more sureties, who shall justify before- said 
 justice on the return day of said summons, to the effect that they 
 are bound in double the value of said property, as stated in 
 plaintiff's affidavit for the delivery thereof to said plaintiff, if 
 such delivery be adjudged, and for the payment to him of such 
 sum as may for any cause be recovered against said defendant; 
 and if such return be not required before the return day of said 
 summons, the property shall be delivered to said plaintiff. 
 
 The qualifications of bail must be as follows: 
 
 1. Each of them must be a resident, and householder or free- 
 holder, within the State. 
 
 2. They must each be worth double the amount specified in 
 the affidavit of the plaintiff, exclusive of property exempt from 
 execution, but the Justice of the Peace, on justification may 
 allow more than two bail to justify severally in amounts less than 
 double that expressed in the affidavit, if the whole justification 
 be equivalent to that of two sufficient bail. (Code, % 194.) 
 
 For the purpose of justification, each of the bail shall attend 
 before the Justice of the Peace at the time and place mentioned 
 in the notice, and may be examined on oath touching his suffi- 
 ciency in such manner as the Justice of the Peace in his dis- 
 
196 NEW YORK JUSTICE. 
 
 eretion may think proper. The examiuation shall be redueed to 
 writing, and. subscribed by the bail, if required by the objecting 
 T^arty, {id. § 195.) 
 
 If the property or any part thereof be concealed in a build- 
 ing or inplogure, the constable shall publicly demand its 
 .qleliyery, If it be not" delivered, he shall cause the building or 
 iuclosure to be broken open, and take the property into his 
 possession, awd, if necessary, he may call to his aid the power 
 pfthp county, (§214-) When the constable shall have taken 
 property, as in this chapter provided, he shall keep it in a 
 secure place, and deliver it to the party entitled thereto, upon 
 Receiving his lawful fees for taking, and his necessary expenses 
 fpr keeping the same. (§ 215.) If the property taken be 
 clainied by any other perspn than the defendant or his agent, 
 and such person shall make affidavit of his title thereto, and 
 right ^o thP pospession thereof, stating the grounds of such right 
 and title, and serve the same upon the constable, the constable 
 shall not be bound to keep the property, or deliver it to the 
 plaintiff, unless the plaintiff, on demand of him or his agent, 
 shall indemnify the nonstable against such claim, by an imder- 
 taking executed by two sufficient sureties, accompanied by their 
 affidavits, that they are each worth double the value of the pro- 
 perty as specified in the affidavit of the plaintiff, and freeholders 
 and householders of the county. And no claim to such property 
 by any other person than the defendant or his agent, shall' be 
 valid against the constable unless made as aforesaid, and not- 
 withstanding such claim, when so made, he may retain the pro- 
 perty a reasonable time to demand such indemnity. (§ 216.) 
 
 The actions so commenced shall be tried in all respects as 
 other actions are tried in justices' courts. The judgment for the 
 plaintiff may be for the possession, or for the recpvery of the 
 possession, or the value thereof, in case a delivery cannot be had, 
 and of damages for the detention. If the property have been 
 delivered to the plaintiff, and the defendant claim a return there- 
 of, judgment for the defendant may be for a return of the pro- 
 perty, or the value thereof in case a return cannot be had, and 
 damages, for taking and withholding the same. An execution 
 shall be issued thereon, and if thp judgment be for the delivery 
 of the possession of personal property, it shall require the officer 
 tp deliver the posse^siop pf the same, particularly describing it, 
 
EEPLEVIN. 197 
 
 to the party entitled thereto, and may at the same time require 
 the officer to satisfy any costs or damages recovered by the same 
 judgment out of the personal property of the party against 
 whom it was rendered, to be specified therein, if a delivery 
 thereof cannot be had. The execution shall be returnable within 
 sixty days after its receipt by the officer, to the justice who 
 issued the same. 
 
 In all fictions for the recovery of the possession of personal 
 property, as herein provided, if the property shall not have been 
 delivered to plaintiff, or the defendant by answer shall claim a 
 return thereof, the justice or jury shall assess the v^ue thereof, 
 and the injiiry sustained by the prevailing party by reason of 
 the talang or detention thereof, and the justice shall render 
 judgment accordingly, with costs and disbursements. • (§ 216.) 
 
 If it shall appear by the return of the constable that he had 
 taken the property described in the plaintiff's affidavit, and that 
 defendant cannbt be found, alid has no. last place of abode in 
 said county, or that no agent of defendant could be found on 
 whom service could be made, the justice may proceed with the 
 cause in the s£|,me manner as though there had been a personal 
 service, (id.) 
 
 For the uidorsement on said affidavit, the justice shall receive 
 an additional fee of twenty-five cents, which shall be included 
 in the costs of the suit, (id.) 
 
 The following forms may be used under this act: 
 
 § 12. Siiinmons in Actions for Claim and Delivery of Pa'sonal 
 
 Property. 
 County \ ,. 
 Town of ,\' 
 
 To , defendant: 
 
 You are hereby summoned to appear before the undersigned, 
 at his office in said town, on the day of 186 , at 
 
 o'clock in the noon, to answer the complaint of 
 , plaintiff. And if you fail to appear at the time and place 
 above mentioned, the plaintiff will talce judgment against you 
 for the possession of the property described in the annexed affi- 
 davit, a copy of which is Iierewith served on you, with the costs 
 and disbursements of said action. 
 
 Dated, at the town aforesaid, this day of 186 . 
 
 , Justice of the Peace. 
 
 ■ The summons must be returna,ble not more than twelve days 
 
198 NEW YORK JUSTICE. 
 
 from the dat^ thereof. The stjitute is silent as to the shortest 
 time in which it may be retmimble. It would seem that the 
 summons must be served at least two days before the return 
 day. In the absence of specific directions it would be safer to 
 follow the analogy of the ordinary long summons, and make the 
 •summons returnable in not less than six nor more than twelve 
 days from its date, and it should be served at least six days 
 before the time of appearance mentioned therein. 
 
 § 13. Affidavit. 
 
 State ofNe^K Yol-k, ? g. 
 County of , ) 
 
 of being duly sworn, says that 
 
 said plaintiff is lawfully entitled to the possession 
 of the following articles of personal property, viz.: \here de- 
 scribe the property particularly. '\ That the actual value of said 
 property, according to this deponent's best judgment and belief, 
 is [here state the value of the property, which must not exceed one 
 hundred dollars.^ That said property is wrongfully detained 
 from the said plaintiff by , defendant; that the alleged 
 
 cause of such detention, according to the best of this deponent's 
 knowledge, information, and belief, is [here state-the facts and 
 circumstances fully, out of which the alleged cause of detention 
 arose\. That the said property has not, nor has any part thereof, 
 been taken for a tax, assessment, or fine, pursuant to a statute, 
 or seized under an execution or attachment against the property 
 of said plaintiff, [or if so seized, show that it is exempt from such 
 seizure by statute^ and that the said plaintiff is the owner and 
 entitled to the possession of the said property. 
 
 Sworn to before me, this \ A. B. 
 
 day of , 18 . 5 
 
 , Justice of the Peace. 
 
 \ 14. JVotice to Constable. ^ 
 {To be indorsed upon the Affidavit.) 
 
 To any Constable of the County of : 
 
 You are hereby required to take the personal property, in 
 the within affidavit mentioned, from the said , defend- 
 
 ant, and keep the same to be disposed of according to law. 
 Dated, the day of , 186 . 
 
 , Justice of the Peace. 
 
 § 15. Undertaking. 
 
 "Whereas, , plaintiff, alleges that * , defendant, 
 
 has in his possession and wrongfully detains, certain personal 
 
REPLEVIN. 199 
 
 County of ^ 
 
 property belonging to the said plaintiff of the estimated value 
 of dollars, and that the said plaintiff is about to commence 
 
 an action to recover the possession of said property; and Where- 
 as the said plaintiff claims imi^ediate delivery of the said prop- 
 erty pursuant to statute, 
 
 Now> THEREFORE, We, and of , 
 
 do herebj'- jointly and severally undertake and bind ourselves in 
 the sum of \douhle. the value of such property as slated in said 
 affidavit^ for the prosecution of the said action, and for a return 
 - to the said defendant of the said property, if a return thereof 
 shall be adjudged, and for the payment to the said defendant 
 of any such sum as may, for any cause, be recovered in said 
 action against said plaintiff. 
 
 Dated, the day ) A. B. 
 
 of , 18 . 5 C. D. 
 
 § 16. Justification of Bail. . 
 
 State of New York, ) 
 
 and - of , being duly sworn 
 
 say, and each for himself severally says, that he is a resident 
 and householder [or freeholder] of the said county, and is worth, 
 in property not exempt from execution, the sum of dollars, 
 over and above all debts, demands, and liabilities, of whatever 
 sort, which he owes or has incurred. A. B. 
 
 Sworn to, &c. C. D. 
 
 § 17. Approval. 
 
 I hereby approve the above undertaking and the sufficiency 
 of the sureties therein. ■ A. B. 
 
 Justice of the Peace. 
 
 § 18. Return of Constable. 
 Comity, ss: 
 
 I hereby certify that on the day of 186 , at the 
 
 town of , in' said county, I seized and took into my pos- 
 
 session the personal property mentioned in the within affidavit, 
 and hold the same to be disposed of according to law: and I 
 further certify that on the day of 186 , at the town 
 
 of , in said county, I served the within Summons, 
 
 Notice, and Affidavit, on , the defendant therein named, by 
 delivering to and leaving with (*) him, personally, copies thereof. 
 
 Pees, $ , Constable. 
 
 If the defendant camiot be found in the county, use the same 
 form to the (*) and -then add, "A. B., the agent of the defend- 
 ant, in whose possession said property was found, copies thereof." 
 
200 _ NEW YORK J0BTICE. 
 
 If neitller can be found, then substitute for the last form as 
 follows: "A. B., a person of suitable age and discretion, at the 
 last or usual place of abode of the defendant, copies thereof, 
 at the same time informing him of their contents." 
 
 § 19. Return of Constable under Section 12. 
 [Use the first form above as to the seizure, and then add] 
 And I furtWr certify that said defendant cannot be found and 
 has no last place of abode in this county, and no agent of de- 
 fendant can be found on whom service can be made. 
 
 § 20. Notice of Exception to Sureties. 
 To , Plaintiff; or, (To , Constable.) 
 
 Take Notice, I do hereby except to the [form and] sufficiency 
 of the security in an action heretofore commenced in Justice's 
 Courtf before , Justice of the Peace of the town of 
 
 , in which is plaintiff, and myself defendant, 
 
 and which is returnable before said Justice on the day of 
 ^ 186 . Yours &c., 
 
 Dated, &c. , Defendant. 
 
 The above notice must be served at least two days before the 
 return day of the summons, and the sureties in said undertaking, 
 or new sureties at the option of plaintiff, must appear before 
 the justice on the return day, and be examined under oath as to 
 their qualifications. If the defendant shall except to the plain- 
 tiff's sureties, he cannot claim a return of the property to him. 
 
 § 21. Undertaking requiring Return of Property. 
 
 Whereas, , defendant, is about to require the retm-n 
 
 to him of the personal property taken by , constable, in 
 
 an action in Justice's court, before , Justice of the 
 
 Peace, of county, in which is plaintiff, and the 
 
 said defendant, to wit, \here describe the property,^ 
 
 NOW, THEKEFOKE, WE, and of do hereby 
 
 jointly and severally undertake and bind om'selves in the sum 
 of [double the value of the property as stated in plaintiff's affi- 
 davit^ for the delivery thereof to the plaintiff, if such delivery 
 be adjudged, and for the payment to him of such sum as may 
 for any cause be recovered aeainst the defendant. A. B. 
 
 Dated, &c. C. D. 
 
 If the defendant shall claim a return of the property, the 
 above undertaking must be served on the plaintiff before the 
 
EEPLEVIN. 201 
 
 return day, and a duplicate should also be filed with the justice. 
 The sureties should appear before the justice on the return day, 
 and be examined on oath touching their qualifications, and if 
 approved, the property may immediately be returned to the 
 defendant. 
 
 § 22. Affidavit of Claim by Third Person. 
 
 State of New York, ? . 
 County of \ 
 
 , being duly sworn, says that he is the sole owner 
 of certain goods, wares, and merchandise, to wit, [describe the 
 goods,^ taken by , constable of said county. That he 
 
 purchased the same from one , of on the day 
 
 of , 186 , and has not in any waj* sold or disposed of the 
 same. A. B. 
 
 Sworn to, &c. 
 
 § 23. Undertaking to Consiaile on Claim of Third Persons, 
 [Title of Cause.] 
 
 One having claimed to be the owner, and to have the 
 
 possession of the personal property, to wit, [here describe the 
 property,^ taken by , constable of the county of 
 
 Now, WE and , of , do hereby jointly 
 
 and severally agree and undertake to indemnify the said con- 
 stable against the claim of the said A. B. 
 
 Dated, &c. ' CD. 
 
 \ 24. Affidavit of Sureties. 
 For Fonn see § 16. But the sureties must be freeholders 
 and householders of the county. 
 
 §■ 25. Entry in Justice^ s Pocket. 
 
 Jn Justice! s Court. 
 John Doe 
 
 agt. 
 Richard Roe. 
 
 January \st, 1861. The affidavit of 
 plaintiff and undertaking with sufficient 
 surety being presented to me, (see same on 
 file,) I issued a summons against the de- 
 fendant returnable the l^th inst., at nine o'clock, a. m., at my 
 office, in the town of , to answer the complaint of the 
 
 plaintifi^, and that if said defendant failed to appear, plaintiff 
 would take judgment against him for the possfession of the pro- 
 perty described in said affidavit, to wit, [here describe the pro- 
 perty,^ and also indorsed on said affidavit a notice to any 
 constable of said county to take the ' property in said affidavit 
 roentioned. 
 
 January 4dJi. Summons, affidavit, and notice returned, duly 
 
202 NEW YOEK JUSTICE. 
 
 and personally serred the 3d inst., by , constable, by de^ 
 
 livering to and leaving with defendant personally copies thereof, 
 [or as the fact may 5e,] and at the same time taking into his 
 possession the said property. Fees, $1.00. (See return of 
 constable on file.) 
 
 January 10th. Cause called, parties appeared in person and 
 joined issue in writing. Plaintiff complained on the facts stated 
 in his affidavit. Defendant denied flie complaint and pleaded, 
 [as the case may be.] (See pleadings on file.) Cause adjourned 
 by consent to January 26th, at nine a. m;, at my office, at which 
 time parties appeared and tried the suit. [If jury trial insert 
 according to the facts.] A. B., C. D., and E. F. were sworn as 
 witnesses for the plaintiff, and G. H., &c., for the defendant. 
 The cause being submitted to me, I determined that said pro- 
 perty belonged to the plaintiff, and adjudged the possession 
 thereof to him, and rendered judgment against the defendant, 
 Jan. 2bth, 1861, for Costs, $5.00. 
 
 CHAPTER VIII. 
 
 OF THE APPEAEANCE OF PARTIES. 
 
 Every defendant in an action before a Justice, except infants, 
 and corporations aggregate, may appear and defend the same 
 in person, (2 R. 8, 232, § 41,) and the latter may appear by 
 attorney, but the, former cannot. It is irregular for an infant 
 defendant to appear by attorney; {Mockeyys.Gray, 2 Johns. 
 192;) he must appear by guardian. {^Aldennan vs.- Tirrell, 8 
 Johns. 418.) 
 
 After the service and return of process, against an infant de- 
 fendant, the suit cannot be any further prosecuted, until a guar- 
 dian for such defendant be' appointed. (2 B. S. 232, § 42.) 
 Such guardian may be appoint^ by the Justice before whom 
 the action is prosecuted, or by the county judge. ■ {Code, 
 ^ 115.) The guardian for an infant defendant must be ap- 
 pointed upon the application of the infant, if he be of the age 
 of fourteen years, and apply within twenty days after service 
 of the summons. If he be under the age of fourteen, or neg- 
 lect so to apply, then, upon the application of any other party 
 
GUARDIAN FOR INFANT DEFENDANT. 203 
 
 _ _ __ 
 
 to the action, or of a relative or friend of the infant, after nO' 
 tice of such application being firSt given to the general or tes- 
 tamentary guardian of such infant, if he has one within this 
 State; if he has none, then to the infant himself, if over four- 
 teen years of^age, and within the State; or, if under that age, 
 and within the State, to the person with whom such infant 
 resides. {Code, \ 116.) Such application may be verbal or in 
 writing. The person appointed must be a suitable person, hav- 
 ing no possible interest in the controversy adverse to that of 
 the infant, and must consent in writing to be such guardian, 
 (2 R. 8. 232i \ 42,) which consent must be filed with the Jus- 
 tice, (id. § 43.) The guardian for the defendant is not liable 
 for any costs in the action, {id.) 
 
 It was formerly provided by the Eevised Statutes, that on 
 the request of an infant defendant, the Justice should appoint 
 some person who would consent thereto in writing, to be the 
 guardian of the defendant in the defence of the suit; and that, 
 if the defendant should not appear on the return day of the 
 process, or should neglect or refuse to nominate such guardian, 
 the Justice might, on the motion of the plaintiff, appoint any 
 discreet person as such guardian. (2 E. 8. 232, § 42.) Under 
 these provisions, unless the infant defendant appeared on the 
 return day of the process, the plaintiff could procure from the 
 Justice an appointment of a guardian for the infant on the same 
 day the process was returned served, and the action could im- 
 mediately progress. Now, however, as the provisions of the 
 Code in regard to appointing guardians are made applicable to 
 Justices' Courts, {Code, §§ 8, 64,) an infant defendant of the age 
 of fourteen years has twenty days after the service of the sum- 
 mons in which to apply for the appointment of a guardian; and, 
 as the guardian must be appointed on his application, if he ap- 
 plies within that time, and the provision forbiddijjg the further 
 prosecution of the suit, after the service and return of process 
 against an infant defendant, until a guardian for him is ap- 
 pointed, is still in force: the effect of the change introduced by 
 the Code is, that a plaintiff cannot procure from the Justice an 
 appointment of a guardian for an infant defendant of the age 
 of fourteen years, until after the expiration of twenty days 
 from the service of the summons, and then only on giving the 
 notice required by the Code, until which time no further pro- 
 
204 NEW YORK JUSTICBi. 
 
 ceeding cati be had in the suit. The notice should be served on 
 the infant, if over fourteen years of age and within the State; 
 if under that age and within the State, on the person with 
 whom such infant resides; but if he has a general or testamen- 
 tary guardian, the notice should be served on the guardian. 
 If the infant defendant is under the age of fourteen years, the 
 plaintiff may proceed to procure an appointment of a guardian 
 from the Justice immediately on the return of process served, 
 subject to the provision as to notice. 
 
 §26. Conseni to be Guardian for Infant Defendant. 
 
 In Justice's Court, 
 Andrew Shuman, \ 
 
 against > Before Horace T. Cook, Justice. 
 
 Chilion Beach. J 
 Cayuga County, ss: At the request of the defendant, who is 
 under twenty-one years of age, I hereby consent to act as his 
 guardian, to defend this suit. James Ktdd. 
 
 The Justice or county jiudge should endorse the appointment 
 of the guardian^ upon the consent before it is filed, as follows: 
 
 The said James Kidd is aecordiligly appointed guardian. 
 HoKiCE T. Cook, Justice of the Peace. 
 
 A corporation must appear by an attorney, and his appoint- 
 ment need not be under seal. Idiots and lunatics must sue and 
 be sued in their own names, but the Court voll permit some pro- 
 per person to assist in managing the prosecution or defence. A 
 lunatic must appear by guardian if he be under age, and by at- 
 torney if he be of full age, and the Court will appoint a guardian 
 or attorney, on motion. (1 Gow. Treatise, 300; Keys vs. Beards- 
 ley, 18 Johns. 134.) 
 
 A party authorized to appear in a Justice's Court by attorney 
 may appoint any person to act as such attorney; but the con- 
 stable who served either the original or jury process in the action, 
 or the law partner or clerk of the Justice before whom the action 
 is brought, {Laivs of 1864', chap. 421,) cannot appear and advo- 
 cate for either party at the trial, but may act as attorney in any 
 other stage or proceeding in the action. (2 R. 8. 233, § 44; 
 Kittle vs. Baker, 9 Johns. 354.) But when the suit is com- 
 menced by warrant, the defendant must appear in person, and 
 
GUAKDIAN FOR INFANT DEFENDANT, 205 
 
 no proceedings can be had against liim till he does so appear. 
 (2 R. S. 232, § 41.) 
 
 If a constable, acting as attorney, merely proves the note ^- 
 clared on, it is a violation of the statute, although at the time 
 there was no appearance by the defendant, or by any one in his 
 behalf. (Ford vs. Smith, 11 Wend. 73.) 
 
 The authority to appear by attorney may be either written or 
 verbal, and must, in all cases, be proved, either by the attorney 
 himself, or by other competent testimony, unless admitted by 
 the opposite party; and the Justice must not permit any person 
 to appear for another without such proof or admission. (2 B. 
 S. 232, § 45; 1 Cow. 113, 256; 2 id. 421; Ackermanvs. Finch, 
 15 Wend. 652.) But evidence of the attorney's authority must 
 be demanded, if at all, at the time of appearance. [Treadwell 
 vs. Bruder, 3 F. D. Smith's 596.) Any written authority to 
 appear by attorney in a Justice's Court may be acknowledged 
 before any County Judge, Justice of the Peace, or Commissioner 
 of Deeds, and such authority, purporting to have been so 
 acknowledged, is made prima fade evidence of such authority 
 in any Justice's Court in the State. {Laws of 1831, chap. 287, 
 \ 1.) A verbal authority to appear in a cause is not sufficient 
 to enable the attorney to release the interest of a witness. {Mur- 
 ray vs. House, 11 Johns. 464.) A Justice cannot act upon in- 
 formation which he has received out of court in relation to the 
 appointment of an attorney, ev6n though the information come 
 from the party for whom the attorney appears. (2 Cow. 429; 
 Fanning, ^s,. Trowbridge, 5 Hill, 428.) And it is lately enacted 
 that no clerk or deputy clerk of any court in this State shall be 
 permitted to practice as attorney or counsel in any court of 
 which he shall be such okrk or -deputy clerk. {Laws q/" 1858, 
 chap. 567.) 
 
 Upon the return of a summons personally served, or on the 
 return of an attachment duly sei-ved, the Justice must wait one 
 hour after the time specified for the return of such process, un- 
 less the parties sooner appear. (2 B. S. 233, § 46.) If the 
 plaintiff fail to appear within such hour, or within one hour 
 after any time to which the action may have been adjourned, 
 judgment of non-suit, with costs, must be rendered against him. 
 {id. 246, \ 119.) A non-appearance for the plaintiff is a discon- 
 
206 NEW YORK JUSTICE. 
 
 tinuance of the cause, and, if the Justice proceed, it is error. (9 
 Johns. 140; Green vs. Angel, 13 id. 469.) 
 _ As a general rule, a Justice should wait one hour for the ap- 
 pearance of parties, and no longer, unless a reasonable excuse is 
 shown for farther indulgence. Many circumstances may exist; 
 rendering it necessary for the Justice to delay calling the cause 
 until aft^r the expiration of the hour, such as his being engaged 
 in other official duties, and the like. (20 id. 309; Allen vs. 
 Stone, 9 Barb. 60.) If no reasonable excuse exists or appears, 
 the cause should be called within the time designated by the 
 statute, and a refusal to call it would be error. (^Barber vs. 
 Parker, 11 Wend. 51.) The statute is not, however, peremptory; 
 for if the Justice is engaged in trying another cause which oc- 
 cupies him until after the hour expires, that is a good reason for 
 the delays and no rights are lost to either party. The Justice 
 should then jDroceed, as soon as possible, after his other official 
 engagements are disposed of. {Hunt vs. Wickmre, 10 id. 102.) 
 
 Where a defendant wilfully abandons his defence, when he 
 knows the cause is about to be called, on the ground of the 
 omission of the plaintiff to appear until between one and two 
 minutes after the hour expires, the Justice is right in proceeding 
 with the cause. (11 id. 51; swpra.) But where the Justice re- 
 quired the defendant to wait five minutes after the hour elapsed, 
 which he refused to do, and the plaintiff appeared within the 
 five minutes, but after the defendant had left, and the Justice 
 proceeded with the cause, it was held to be erroneous. {Wil- 
 cox vs. Clement, 4 Den. 160.) If, however, the plaintiff had ap- 
 peared before the defendant left, or if he had been in sight and 
 approaching, and the Justice had told the defendant that he was 
 about to call the cause, the defendant would then have gone 
 away at his peril, {id.) 
 
 The question as to ^hat are the rights of a defendant who 
 omits to appear when he ought to, has been the subject of many 
 decisions. But it was thoroughly examined by Mr. Justice Nel- 
 son, m the case of Picket ys. Dexter, 12 Wend. 150, who re- 
 viewed the former decisions. The rule there established is, that 
 it is proper to permit a defendant to plead, if he appears on the 
 return day of a summons, before the cause is adjourned, or even 
 after adjournment, if the plaintiff is still present in court; that 
 if the plaintiff proceeds to a hearing of his cause on the retm-n 
 
PROCEEDINGS ON RETURN OP WARRANT. 207 
 
 day of the sununons, the same privilege ought to be granted to 
 the defendant, if he appears before the plaintiff has closed his 
 case; that where issue has been joined, and the cause adjourned 
 for trial to a particular day, the defendant ought to be permitted 
 to enter upon his defence, if he appears by the time the plaintiff 
 has closed His proofs; but that, if the defendant does not appear 
 on the return of the summons, and join issue, and the cause is 
 adjourned for trial to a future day, he is not entitled, on the 
 adjourned day, to plead and enter upon his defence. 
 
 After «vaiting one hour, if the plaintiff appears, but the de- 
 fendant does not, the Justice may proceed to hear the cause on 
 the part of the plaintiff, but the plaintiff cannot recover without 
 proving his demand in the same manner as if the defendant had 
 appeared and denied it. {Code, § 64, subd. 9; Smith vs. Fal- 
 coner, VOode Reporter, 120, 123; 10 Johns. 106.) 
 
 The failure of the Justice to appear on the return or adjourned 
 day, operates as a discontinuance of the suit, (Lynsky vs. Pen- 
 dergrast, 2 E. D. Smith, 43,) but the parties may confer juris- 
 diction by consent, and proceed to trial then or on an adjourned 
 day. {Stoddard vs. Holmes, 1 Oow. 245.) 
 
 Where a warrant has been served on a defendant and returned, 
 no further proceedings can be had against him until he has per- 
 sonally appeared in court. (2 R. S. 232, § 41.) When he has 
 been brought before the Justice, he must be detained in the 
 custody of the constable, until the Justice shall direct his release; 
 but he can in no case be defamed longer than twelve hours from 
 the time he is brought before the Justice, unless within that 
 time the trial of the cause is commenced, or unless it is delayed 
 at the instance of the defendant. (2 R. S. 229, § 25.) The 
 constable has, however, a right to detain the defendant, while 
 making a bona fide effort to find a magistrate to hear the cause. 
 {Arnold vs. Steeves, 10 Wend. 514.) 
 
 If, on the return of a warrant, the Justice be absent, or unable 
 to hear or try the cause, or it be made to appear to the Justice, 
 by the affidavit of the defendant, that the Justice is a material 
 witness in the cause, the constable must take the defendant be- 
 fore the next Justice of the city or town, who must proceed m 
 the cause, as if the warrant had been issued by him. (2 R. 8. 
 229, ^ 21.) 
 
208 NEW YORK JUSTICE. 
 
 A Justice cannot be a witness in an action tried before him- 
 self; {Perry vs. Weyman, 1 Johns. 520;) nor can he act upon 
 facts within his own knowledge, as evidence in the action. 
 (3 Dm. 12; Wheeler vs. Webster, 1 E. D. Smith. 1.) 
 
 If, therefore, the defendant desires to avail himself of' the 
 testimony of the Justice, he must, previous to joining issue in 
 any action, (except where he has been arrested by warrant,) 
 make affidavit that the Justice before whom the action is pend- 
 ing, is a material witness for him, without whose testimony he 
 cannot safely proceed to trial, and must set forth therein the 
 I particular facts and circumstances which he expects to prove by 
 the Justice. It is then the duty of the Justice to enter judg- 
 ment of discontinuance, if he is satisfied that he is a material 
 witness for the defendant, and that without his testimony the 
 defendant cannot safely proceed to trial, and not otherwise, but 
 without costs against either party. {Laws of 1838, chap. 
 j243, §1.) 
 
 t Formerly, a judgment of discontinuance might be obtained on 
 
 .an affidavit stating merely that the Justice "\tos a material witness 
 
 for the defendant, without whose testimony he could not safely 
 
 j proceed to trial; and in such case, the Justice was bound, to 
 
 ) enter judgment of discontinuance. But now, in addition to this, 
 
 I the statute provides, that the defendant must set forth the par- 
 
 : ticular facts and circumstances which he expects to prove by the 
 
 Justice; and even then, the Justice has a discretionary power, 
 
 •for he is bound to enter judgment of discontinuance only when 
 
 he is satisfied that he is a material witness for the defendant, and 
 
 that, without his testimony, the defendant cannot safely proceed 
 
 \ to trial. He has the right to judge of the sufficiency of the 
 
 ! affidavit, and must be satisfied, acting judicially, that the ends 
 
 j of justice require a discontinuance of the action. {Young vs. 
 
 ' Scott, 3 Hill, 32.) 
 
 When the affidavit is sufficient, the Justice cannot refuse the 
 discontinuance on the gi'ound that he does not recollect the 
 facts which the defendant expects to prove by him. {Hopkins 
 vs. Oabray, 24 Wend. 264.) 
 
 / The defendant must state enough to show that the Justice is 
 \ a necessary, as well as a material witness. (3 Hill, 32, supra.) 
 I If, therefore, the facts which the defendant expects to prove by 
 j the Justice can be as well and as conveniently established by 
 
« 
 PLEADING GENERALLY. 209 
 
 other witnesses, the Justice may properly refuse a discon-) 
 tinuauce. 
 
 Where the defendant made affidavit that the Justice was a 
 material witness, and moved for a nonsuit, and the plaintiff 
 offered that the statement of the Justice might be received as 
 legal evidence, to which the defenda,nt refused to accede, and 
 the Justice nonsuited the plaintiflf, with costs, the judgment 
 was reversed (Van De Veer vs. Stanton, 1 Oow. 84.) 
 
 A Justice, before whom a cause is pending, is bound, on the 
 defendant's request, to swear him to an affidavit prepared for 
 the purpose of procuring the cause to be discontinued on the 
 ground of the Justice being a material witness for the defendant; 
 and his refusal to do so is a misdemeanor, whether the affidavit, 
 as drawn, is sufficient or not. {People vs. Brooks, 1 Den. 457.) 
 
 The plaintiff should, if he finds the Justice is a material wit- 
 ness for him, discontinue his suit. 
 
 If the suit is commenced by warrant, and on the return 
 thereof, it be made to appear to the Justice, by the affidavit of 
 the defendant, ttfat the Justice is a material witness in the action 
 the constable must take the defendant before the next Justice 
 of the city or town, who is required to take cognizance of the 
 cause, and proceed thereon as if the warrant had been issued 
 by him. (2 B. 8. 229, § 21.) 
 
 CHAPTER IX. 
 
 OF PLEADINGS. 
 
 At the time of the first appearance of the parties before the 
 Justice, either upon the return of process, or their voluntary 
 appearance to join issue, the pleadings of the parties must be 
 made, and the issue joined; and when both parties have ap- 
 peared on the return of process, an issue must be joined before 
 any adjournment can be had, except when the defendant refuses 
 or neglects to plead. (2 B. 8. 233, § 47; Laws of 1845, chap. 25.) 
 
 The Court may at the joining of issue, require either party, 
 at the request of the other, at that or some other specified time, 
 14 
 
210 NEW YORK JUSTICE. 
 
 to exhibit his account on demand, or state the nature thereof 
 as far forth as may be in his power, and, in case of his default, 
 preclude him from giving evidence of sucji parts thereof as 
 shall not have been so exhibited or stated. {Qpde, % 64, suhd. 14.) 
 
 1. Pleading Generally. 
 
 The object of pleadings is to apprise the parties, in clear and 
 intelligible language, of the cause of the complaint, and the 
 ground upon which the defendant rests his defence; and it is 
 the purpose of the Code to avoid imnecessary technicality in 
 pleading, and to enable a person of common understanding to 
 conduct the trial of his own cause before a Justice. 
 
 The pleadings in a Justice's Court are a complaint, an answer, 
 and a demurrer, {id, subs. 1, 6.) The pleadings may be oral 
 or in writing; 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 in the docket. 
 {id. sicb. 2.) They are not required to be in any particular 
 form,, but must be such as to enable a person of common under- 
 standing to kn!ow what is intended, {id. sub. 5.) Under the 
 provision of the Code ■which requires the Justice to enter in* 
 his docket the substance of oral pleadings, he need not enter 
 every immaterial allegation of the parties, but he must enter 
 such material statements as are necessary to constitute a cause 
 of action or ground of defence. , - 
 
 In an action or defence founded upon an account, or an in- 
 strument for the payment of money only, it is sufficient for a 
 party to deliver the account or instrument to the Court, and to 
 state, that there is due to him thereon, from the adverse party, 
 a specified sum, which he claims to recover or set off. {Code, 
 sub. 9.) 
 
 In an action by or against any corporation created by or un- 
 der any law of this State, it is not necessary to recite the act or 
 acts of incorporation, or the proceedings by which such corpo- 
 tion was created, or to set forth the substance thereof, but the 
 same may be pleaded by reciting the title of such act, and the 
 date of its passage. (2 B. S. 459, § 13.) 
 
 The following provisions of the Code, though not in terms 
 made applicable to Justices' Courts, seem nevertheless, at least 
 
PLEADING GENERALLY. 211 
 
 some of them, to be applicable from reason and necessity, and 
 have, at least some of them, been so judicially construed: 
 
 In the construction of a pleading, for the purpose of deter- 
 mining its effect, its allegations are to be liberally construed, 
 with a' view to substantial justice between the parties. (Code, 
 § 159.) 
 
 If irrelevant or redundant matter be inserted in a pleading, 
 it cannot be stricken out, on motion of any person aggrieved 
 thereby; the remedy is by demurrer. {Mayor of li.Y. vs. Mason, 
 1 Abb. 344.) In a Justice's Court the plaintiff may state one 
 cause of action in several different counts or statements, and 
 may recover according to his proofs. {Wentworth~\s. Buhler, 
 3 E. D. Smith, 305;) There is, however, no particular mode by 
 which counts or causes of action are to be separated or distin- 
 guished from each other in a complaiat in a Justice's Court. 
 Any mode which apprises the defendant of what is intended is 
 sufficient. {Hall vs. McKecMne, 22 Barb. 244.) 
 
 In pleading a judgment, or othet determination of a court or 
 officer of special jurisdiction, it is not necessary to state the 
 facts conferring jurisdiction, but such judgment or determina- 
 tion may be stated to have been duly given or made. If such 
 allegation be controverted, the party pleading _ is bound to 
 establish on the trial, the facts conferring jurisdiction. {Code, 
 ^161.) Formerly, in pleading anywhere a judgment of a Jus- 
 tice's Court, and whether it was set up by the plaintiff or the 
 defendant, it was necessary to aver that the Court had jurisdic- 
 tion both of the subject matter, and of the persons of the par- 
 ties; and an averment of jurisdiction was not sufficient, without 
 stating the facts on which it depended. (9 Cow. 26; 12 Wend. 
 478; 7 Hill, 35; Turner vs. Roby, 3 Com. 193.) This rule is 
 of course changed, as to pleading in Courts of Eecord, by the 
 section of the Code just cited, but that section not being made 
 applicable to Justices' Courts, it remains to be decided whether 
 the change in the mode of pleading applies to those Courts. 
 {Ante, p. 19.) 
 
 In pleading the performance of conditions precedent in a 
 contract, it is not necessary to state the facts showing such per- 
 formance; biit it may be stated generally, that the party duly 
 performed all the conditions on his part; and if such allegation 
 
212 NEW YORK JUSTICE. 
 
 be controverted, the party pleading is bound to establish on the 
 trial, the facts showing such performance. (Code, § l62.) 
 
 In "pleading' a private statute, or a right derived therefrom, it 
 is sufficient to refer to such statute by its title and the day of 
 its passage, and the Court must thereupon take judicial notice 
 thereof, {id. § 163.) 
 
 2. Complaint. f 
 
 The complaint must state, in a plain and direct manner, ^he 
 facts constituting the cause of action; {id. \ 64, siibd. 3;) that 
 is, every fact on which the right of action depends. {Garvey 
 Vs. Fowler, 4 Sandf. 665.) If in writing, it should contain the 
 title of the action, the name of the Justic^ before whom the 
 action is to be tried, the names of the parties, a demand of the 
 relief sought, and, if the action is for the recovery of money, 
 the amount claimed. Both time and place should be stated 
 with reasonable certainty in the complaint. 
 
 The plaintiff may unite in the same complaint several causes 
 of action, whether they be such as have been heretofore denomi- 
 nated legal or equitable, or both, where they all arise out of, 
 , 1. The same transaction, or transactions connected.with the 
 same subject of action; 
 
 2. Contract, express or implied; or 
 
 3. Injuries with or without force, to person and property, or 
 either; or 
 
 4. Injuries to character; or 
 
 5. Claims to recover real property, with or without damages 
 for the withholding thereof, and the rents and profits of the 
 same; or 
 
 6. Claims to recover personal property, with or without 
 damages for the withholding thereof; or 
 
 7. Claims against a trustee, by virtue of a contract, or by 
 Operation of law. 
 
 But the causes of action, so united must all belong to one 
 of these classes, and must affect all the parties to the action, 
 and not require different places of trial, and. must be separately 
 Stated. {Oode \ 167.) 
 
 It is necessary not only that the causes of action united should 
 all of them belong to some one of these classes, and should all 
 of them affect all the parties to the action, and not require dif- 
 
COMPLAINT. 213 
 
 ferent places of trial, and be separately stated, but that they 
 should all arise out of the same transaction, or out of transac- 
 tions connected with the same subject of action. Two defend- 
 ants cannot be sued in the same action upon separate contracts 
 made by each. 
 
 If an action be brought to recover any money, goods or 
 other thing received by any person contrary to the provisions 
 of any statute, or for the conversion of any goods or other thing 
 received contrary to the provisions of any statute, the plaintiff 
 must set forth in his complaint that such money, goods, or other 
 things were received, or that such goods or other things were 
 converted, by the defendant, contrary to the provisions of such 
 statute, referring to the same and naming the subject matter 
 thereof in the following form> "according to the provisions 
 of the statute regulating the rate of interest on money," or, 
 " according to the provisions of the statute against betting and 
 gaming," as the case may require, or in some other general terms 
 referring to such statute. (2 R. S. 351, 352, §§ 1 to 3.) If 
 the complaint does not conform to the statute, an objection 
 made on that ground at the trial will be 'fatal to a recovery. 
 {Sbhroepel vs. Coming, 2 Coins. 132.) It is not necessary that 
 the complaint in a Justice's Court should correspond with the 
 summons in respect to the cause of action. The particular plea 
 need not be stated in the summons. {Delancif vs. Sagle, 16 
 Barb. 9S.) 
 
 [For forms of Complaints, see McCall's Clerk's Assistant, 
 pp. 333, 334, 335.] ' 
 
 3. Demurker. 
 
 Either party may demur to a pleading of his adversary, or 
 any part thereof when it is not sufficiently explicit to enable 
 him to understand it, or it contains no cause of action or defence, 
 although it be taken as true. {Code, § 64, svAd. 6 ) The only 
 remedy in a Justice's Court where the complaint is not suffi- 
 ciently certain and explicit, is by demurrer. The Justice can- 
 not entertain a motion to strike out a complaint or answer, 
 either in whole or in part. (1 Abbott's Pr. R. 344; HilUard 
 ys. Amtin, 17 Rarb. lil.) \ 
 
 At the time of appearing to join issue, after the plaintiff has 
 
214 NEW YORK JUSTICE. 
 
 presented his complaint, the defendant, if he wishes to demur 
 to it must do so before he answers it; and the plaintiff may- 
 demur to the answer after it is made. Objections in the nature 
 of a demurrer must be raised by the pleadings, or they cannot 
 be taken advantage of on appeal. {Jackson yL Wheedon, 
 3 Code Rep. 186.) 
 
 If the Court deems the objection taken by the demurrer to 
 be well founded, it must order the pleading to be amended, and 
 if the party refuses to amend, the defective pleading must be 
 disregarded. {Code, \ 64, subd. 7.) The party whose pleading 
 has been held to be defective has an absolute right to amend; 
 and it is the imperative duty of the Justice to preserve that 
 right by the terms of the order. (13 Barb. 533; 17 id. 141; 
 sujpra.) Therefore, if the defendant demurs to the complaint, 
 and the Justice sustains the demurrer, and the plaintiff refuses 
 to amend, this will operate as a discontinuance of the action, 
 and judgDlent of nonsuit must be rendered against the plaintiff, 
 with costs. (2 R. S. 246, § 119.) So, too, if, after demurrer, 
 the defendant refuses to amend his answer, the Justice must pro- 
 ceed with the cause as though the defendant had not appeared. 
 
 If, on demurrer to a complaint, the Court thinks that the 
 objection taken by the demurrer, is not well-founded, and over- 
 riiles the demurrer, it should generally allow the defendant to 
 withdraw the demurrer, and give him liberty to answer if he 
 wishes to do so. Still, that is a question restiUg in some man- 
 ner in the discretion of the Justice. If, however, that discre- 
 tion is abused, or is not exercised soundly, the Court above will 
 correct the error. {Sloan vs. Chase, 10 Wm,d. 370.) Joining 
 issue upon the merits after demurrer overruled in a Justice's 
 Court, waives the demurrer. {Harper vs. Leal, 10 How. 276.) 
 
 If, on demurrer to an answer, the Court overrules the demur- 
 rer, the answer will stand, and the parties must go to trial on 
 the issue thus joined. 
 
 We have seen that a party may demur to a part only of the 
 pleading of his adversary. In case of such a demurrer, there 
 will be an issue of law, and one also of fact. The issue of law 
 on the demurrer should be decided before the issue of fact. And 
 it is an inflexible rule in Courts of Justices of the PeJace, that no 
 motion which is a substitute for a demuiTer can be entertained 
 
DEMURRER. 215 
 
 after tlie issue of fact has been entertained and the parties are 
 read/, for trial. (17 Barb. 141; supra.) 
 
 § 27. Demurrer to Complaint. 
 In Justice's Court, 
 
 Charles Green 1 -r. j? -rr mi t x- 
 
 . i Before Henry iaylor, Justice., 
 
 T ^ . Demurrer, 
 
 James Avery. J 
 
 James Avery, defendant in this action, says, that the plaintiff's 
 complaint is insufficient in law to maintain his action, and assigns 
 the following reason — that it appears on the face of the com- 
 plaint, that the contract set forth is illegal and void, it being a 
 wager on the result of an election; [or, that the contract is one 
 to answer for the debt of a third person, and is not in writing, 
 and is therefore void; or, that the complaint is not sufficiently 
 explicit to enable the defendant to understand it, and he is un- 
 able to determine whether the complaint is for a trespass upon 
 the plaintiff's land or upon his personal property; or, that the 
 promissory note Upon which the complaint is founded is not yet 
 due.] James Aveey. 
 
 § 28. Demurrer to Answer. 
 In Justice's Court, * 
 
 . ^ ®^ Before Henry Taylor, Justice. • 
 
 aqainst > -r. j j > 
 
 T ^ A Demurrer. 
 
 James ^very. ) 
 
 Charles Green, plaintiff in this action, says, that the defend- 
 ant's answer is insufficient in law to maintain his defence, for the 
 following reason — that it appears from the answer that the de- 
 mand which the "defendant claims to set off did not exist at the 
 time of the commencement of the action, and did not then be- 
 long to the defendant. Charles Green. 
 
 4. Offer to Allow Judgment. 
 
 By amendment to section 64 of the Code of Procedure, passed 
 April 16, 1860, it is provided that the defendant may, on the 
 return of process, and before answering, make an offer in writ- 
 ing to allow judgment to be taken against him for an amount, 
 to be stated in such offer, with costs. .-The plaintiff shall there- 
 upon, and before any other proceedings shall be had in the ac- 
 tion, determine whether he will accept or reject such offer. If 
 , he accept the offer, and give notice thereof in writing, the jus- 
 tice shall file the offer and the acceptance thereof, and render 
 judgment accordingly. If notice of acceptance be not given, 
 
216 NEW YORK JUSTICE. 
 
 and if the plaintiff fail to obtain judgment for a greater amount, 
 exclusive of costs, than has been specified in the offer, he shall 
 not recover costs, but shall pay to the defendant his costs accru- 
 ing subsequent to the offer. 
 
 V ^ 29. Offer for Jvdgm&nt. 
 
 In Justice's Court "> The defendant herein hereby offers to al- 
 
 John Doe ! low judgment to be taken agamst him in 
 
 agt. [ this action in favor of the above named 
 
 Richard Hoe. - j plaintiff for dollars and cents, 
 
 with costs. EICHAED ROE, 
 
 Dated, &c. DefendanL 
 
 % 30. Acceptance of Offer. 
 [Title of Cause.] 
 
 The above-named plaintiff hereby accepts the offer of the de- 
 fendant herein to allow judgment to be taken against him in 
 favor of this plaintiff for dollars and cents, with costs. 
 
 Dated, &c. JOHN" DOE, Plaintiff. 
 
 5. Answer. 
 
 Formerly, the most usual plea in a Justice's Court was that 
 of the general issue, with a notice of matter to be offered in evi- 
 dence under that plea. For instance, it was sufficient for the 
 defendant to say, " I plead the general issue, and give notice of 
 set-off." An answer cannot now be made in that fonn, for it 
 must contain a denial of the complaint, or of some part thereof, 
 and also notice, in a plain and direct manner, of any facts con- 
 stituting a defence. {Code, § 64, svid. 4.) 
 
 The answer should contain the title of the cause, the name of 
 the Justice before whom the action is to be tried, the names of 
 the parties, a denial of the complaint, or of some part thereof, 
 and a statement of the facts constituting the defence. 
 
 In an action to recover the possession of property distrained 
 doing damage, an answer that the defendant, or person by whose 
 command he acted, was lawfully possessed of the real property 
 upon which the distress was made, and that the property dis- 
 trained was at the time d&ing damage thereon, is good, without 
 setting forth the title to such real property, {id. § 166.) 
 
 In a suit or proceeding by or against any corporation, a mis- 
 take in the naming of such corporation must be set up in the 
 answer. Otherwise, it will be deemed to have been waived. (2 
 iJ. /?. 459, § 14.) 
 
ANSWER. 217 
 
 By section 144 of the Code the defendant in a Court of Record 
 may demur to the complaint, when it shall appear on the face 
 thereof, either: 1. That the court has no jurisdiction of the per- 
 son of the defendant, or the subject of the action; or, 2. That 
 the plaintiff has not legal capacity to sue; or, 3. That there is 
 another action pending between the same parties for the same 
 cause; or, 4. That there is a defect of parties, plaintiff, or de- 
 fendant; or, 5. That several causes of action have been improper- 
 ly united. In Justices' Courts, parties are allowed to demur to 
 a pleajding, or some part thereof, only wien it is not sufficiently 
 explicit to enable the party to understand it, or when it contains 
 no cause of action or defence, although it be taken as true. It 
 seems, therefore, that if either of the objections named in the 
 above five subdivisions exists in a complaint in a Justice's Court, 
 the defendant must take advantage of it by answer. 
 
 It is provided by statute that in suits against any public offi- 
 cer, [Ante, p. 146,) the omission to name any other officer in 
 the process or complaint may be set up in the answer, and, if 
 not so set up, such omission shall be deemed to have been 
 waived, and shall not be objected in any other stage of the pro- 
 ceedings. (2 R. S. 474, § ^9.) 
 
 [For forms of Answers, see McCall's Clerk's Assistant, p. 
 336.] 
 
 No reply to an answer is required or permitted in a Justice's 
 Court, whether the answer sets up new matter or not. (4 How. 
 Pr. Rep. 44; Jewett vs. Jewett, 6 id. 185.) Therefore, when 
 new matter is set up in an answer, it must be considered as 
 controverted by the plaintiff, and he must be allowed to give 
 evidence on the trial to deny br avoid it. {Hodgps vs. Hunt, 
 22 Barb. 150.) Nor does the failure of the defendant to answer 
 the whole or even a part of the complaint in a Justice's Court, 
 authorize the Justice to take any part of the complaint to be 
 true without proof. Because the Code provides (§ 64, subd. 8,) 
 that in case a defendant does not appear and answer, the plain- 
 tiff cannot recover without proving his case. Hence, if the 
 .defendant appears, but fails to answer at all, the plaintiff must 
 still prove his case. And if the defendant answers but a part 
 of the complaint, the rest cannot be, taken as admitted, but 
 
218 NEW TOBK JUSTICE. 
 
 must be proved. For, the 168th section of the Code, which 
 provides that in Courts of Eecord every material allegation of 
 the complaint^ not controverted by the answer, and every mate- 
 rial allegation of nevr matter in the answer, not controverted 
 by the reply, shall, for the purposes of the action, be taken as 
 true, is not applicable to J^ustices' Courts. (6 How. Prac. Rep. 
 185, supra.) The former decisions to the contrary (2 Code Rep. 
 143; DeOourcy vs. Spaulding, 3 id) 16,) under the Code of 
 1848, which, was different in this respect, were made from the 
 present Code, and have been overruled. 
 
 Where, however, a defendant is in good faith brought before 
 a Justice by summons, and there admits the indebtedness speci- 
 fied in the plaintiff's complaint, judgment may be rendered 
 against him as is usual in a suit; and no affidavit, or proof, or 
 confession in writing is necessary. {Gates vs. Ward, 17 Barb. 
 424.) And where defendant did not deny the plaintiff's claim, 
 but alleged a set-off which was not proven on the trial, it was 
 held that judgment should have been rendered for the plain- 
 tiff. {Gregory vs. Trainor, 1 Abb. 209.) 
 
 Where a defence, e. g., the statute of limitations, is regularly 
 put in in an action before a Justice, nothing short of an express 
 consent to waive it. operates as a waiver. Although it was not 
 mentioned on the trial, nor on the summing up, and though it 
 entirely escaped the attention of the Justice until after he had 
 rendered judgment, still, if on appeal it appears that the 
 defence was sustained by the evidence, the judgment should be 
 set aside. {Penfield vs. Jacobs, 21 Barb. 335.) 
 
 6. Amendments. 
 
 The pleadings may be amended at any time before the trial, 
 ' or during the trial, or upon appeal, when by such amendment 
 substantial justice will be promoted. If the amendment be 
 made after the joining of issue, and it be made to appear to 
 the satisfaction of the Court, by oath, that an adjournment is 
 necessary to the adverse party in consequence of such amend- 
 ment, an adjournment must be granted. The Court may also, 
 in its discretion, require, as a condition of an amendment, the 
 payment of costs to the adverse party, {Code, \ 64, s^d. 11,) 
 that is, the costs of the action, up to the time of the amend- 
 ment. {Fulton vs. Heaton. 1 Barb. 552.) 
 
AMENDMENT. 219 
 
 It was formerly held (Gates vs. Ward, 17 Barbour, 424; 
 Gould vs. Glass, 19 Barb. 179,) that Justices' Courts possess 
 the same powers as to amendments which are conferred on 
 Courts of Eecord. But it has more lately been decided that 
 the provisions of Title VI. of the Code, respecting amendments 
 by adding or striking out the names of parties, the correction 
 of mistakes, &c., are necessarily confined to Courts of Eecord, 
 which are clothed with discretion in reference to the terms upon 
 which amendments shall be allowed, and possess the appropri- 
 ate machinery by which their orders maybe enforced; a,nd that 
 these provisions are not applicable to Justices' Courts. {Web 
 ster vs. Hopkins, 11 How. Pr. JR. 140; Gould vs. Glass, 19 
 Barb. 179.) 
 
 It is also held that a Justice of the Peace has no power to 
 amend a complaint by adding the name of an additional plain- 
 tiff; and that it is doubtful whether he can amend by striking 
 out the name of the plaintiff. {Gates vs. Ward, 17 Barb. 424.) 
 
 In an action in a Justice's Court, in which neither of the two 
 defendants appeared, the cause was held open after the plain- 
 tiff's testimony was closed, until the ensuing day. The plaintiff 
 then appeared again, and moved to amend his complaint by dis- 
 continuing as to one of the defendants, and proceeding against 
 the other alone. The motion was granted, and the Justice 
 thereupon rendered a judgment of discontinuance as to the one 
 defendant, and at the same time a judgment against the other 
 defendant for the amount claimed. It was held that the Justice 
 had no power to permit this amendment, and that the judgment 
 must be reversed. {Webster vs. Hopkins, 11 How. 140.) 
 
 The refusal of a defendant, however, to appear in the action, 
 after objections taken by him to the jurisdiction of the Justice 
 have been overruled, does not deprive the Justice of the power 
 afterwards to allow the amendment of the constable's return of 
 the summons. The power of amendment does not depend on 
 the defendant's appearance. {Perry vs. Tynen, 22 Barb. 137.) 
 
 It will be proper now to notice some of the matters that are 
 most usually set up in the defence of an action, and must be 
 specified in the answer in order to be of any avail. 
 
220 . . NEW TORK JUSTICE. 
 
 7. Plea to the Jurisdiction. 
 
 WLere a Justic,e has no jurisdiction of the cause of action 
 upon which the suit is founded, it is sufficient to aver generally 
 in the answer, that the cause of action is not within his. jurisdic- 
 tion. But where the objection is founded upon the privilege of 
 the defendant's person, the want of proper process or a proper 
 return, or any other circumstance not relating to the subject 
 matter of the suit, the facts must be specially stated in the 
 answer; and if a party proceeds to an issue, and a trial upon 
 the merits, he waives a plea^to the jurisdiction over his person. 
 {8wartwovi vs. Roddis, 5 Hill, 118.) So, too, if a party appears 
 before a Justice on the return of void process, joins issue, and 
 goes io trial, he waives all objection, and the Justice has juris- 
 diction. (2 id. 657; Robinson vs. West, 1 Sand. 19.) 
 
 A defendant arrested upon a Justice's warrant while attending 
 Court as a suitor or witness, must plead his privilege, or move 
 his discharge, before pleading in bar to the action; for a plea in 
 bar admits that he is properly in Court. [Randall vs. Cran- 
 dall, 6 Mill, 342.) 
 
 It is proper' to insert here the following provisions of the 
 statute, although they do .not strictly touch the jurisdiction of 
 the Justice: 
 
 No Justice of the Peace or- constable shall, directly or indi- 
 rectly, buy, or be interested in buying, any bond, note or other 
 demand, or cause of action, for the purpose of commencing any 
 suit thereon before a Justice, nor shall any Justice or constable, 
 either before or after suit brought, lend or advance, or agree to 
 lend or advance, or procure to be lent or advanced, any money, 
 or other valuable thing, to any person, in consideration of, or as 
 a reward for, or inducement to, the placing or having placed in 
 the hands of such Justice or constable, any debt, demand or 
 cause of action whatever, for prosecution or collection. (2 R. 
 S. 267, § 235.) 
 
 Every Justice or constable offending against this provision 
 shall be deemed guilty of a misdemeanor, and, on conviction, 
 shall be subject to fine or imprisonment, or both, in the dis- 
 cretion of the Court. Every such conviction shall operate as 
 a forfeiture of the office of the Justice or constable, so con- 
 victed, (id. § 236.) 
 
PLEA TO THE JURISDICTION. 221 
 
 The defendant in any suit to be brought in any action of debt, 
 covenant or assumpsit, may give notice with his plea, in addi- 
 tion to any other matter of defeilce, that, on the trial of the 
 cause, he will insist gnd prove, that the demand on which such 
 action is founded, has been bought and sold, or received, for 
 prosecution, contrary to law, without setting forth any other 
 particulars. (2 R. 8. 267, § 237.) 
 
 The defendant in any such suit, may serve a notice on the plain- 
 tiff two days before the trial, requiring him to appear personally 
 on such trial, to be examined; and it shall be the duty of the 
 plaintiff to attend such trial, for that purpose; and in case of 
 such attendance, he shall be entitled to the like fees as are 
 allowed by law to witnesses; but the plaintiff shall not be so 
 summoned, nor required to attend the trial, to give evidence as 
 aforesaid, except from the same county, or the county next 
 adjoining that in which the cause is tried, {id. ^ 238.) 
 
 In case such plaintiff shall not attend such trial, he shall, on 
 proof of the due service of such notice, be -nonsmted in such 
 action, unless such failure to attend shall be accounted for to the 
 satisfaction of the Court; in which case the Court may postpone 
 the trial, on the plaintiff's paying the costs of preparing for the 
 trial. And if such plaintiff shall not attend at the time to 
 which the trial shall be postponed, he shall be nonsuited. 
 {id. § 239.) 
 
 On the trial of the cause in which such notice shall have been 
 given, if the defendant shall require it, the plaintiff and his at- 
 torney, and any other person who may be interested in the 
 recovery in such cause, shall be examined on oath, touching the 
 matters set forth in such notice, (id. \ 240.) 
 
 If any such plaintiff, so required to be examined, or if any 
 person interested in the recoveiy of the sui^t, shall refuse to 
 answer on oath such questions as shall be pertinent to show a 
 violation of the provisions of this article, or if, on such ex- 
 amination, it shall appear that the cause of action on which 
 such suit is founded has been brought or procured contrary to 
 the true intent of the foregoing provisions, the plaintiff in such 
 action shall be. nonsuited, {id. % 241.) 
 
 No evidence derived from the examination of any such plain, 
 tiff or other person shall be admitted in proof, on any criminal 
 
222 NEW YORK JUSTICE. 
 
 prosecution against the party so examined, for violating any of 
 the foregoing provisions. (2 R. 8. 267, § 242.) 
 
 ^ 8. Former Action. 
 
 A former trial and judgment must be«set up in the answer; 
 as the Code requires notice, in a plain and direct manner, of 
 the facts constituting a defence. (10 Johns. Ill, 246; Young 
 vs. Bumnell, 2 Bill, 478.) 
 
 A demand once submitted to and passed upon by a jury, is 
 extinguished. {Curtis vs. Groat, 6 Johns. 168; 2 id. 210.) 
 But a nonsuit in a former action, is no bar to a new action for 
 the same cause; {^Youle vs. Brotherton, 10 id. 363;) and a for- 
 mer trial before a Justice, with a submission of the matter to 
 him, but not followed by the rendition of judgment within four 
 days, is no bar to a new action for the same cause. (5 Hill, 60; 
 Young vs. Rummel, 7 id. 503.) 
 
 A verdict of a jury, or report of referees, upon a demand 
 exhibited by a defendant as a set-off, and rejected by the jury 
 or the refere«js, is conclusive upon the defendant, when the de- 
 mand was the subject of a set-off in such suit; but if it appear 
 that the claim, rejected could not legally have been allowed, 
 although fully proved, the fornier trial is no bar to an action 
 brought for the recovery of such demand. (Beebe vs. Bull, 
 12 Wend. 504.) 
 
 If a party to a Suit, either plaintiff or defendant, presents a 
 demand which is legal and proper to be allowed if supported 
 by sufficient testimony, and the jury pass upon it and disallow 
 it, such demand cannot be recovered in another suit. The ver- 
 dict is conclusive, unless it appears that the claim rejected by 
 them could not legally have been allowed. To take the case 
 out of the operation of the rule, the fact should appear affirm- 
 atively, ^hat the jury could not legally have allowed the de- 
 fence; {Hatch vs. Benton, 6 Barb. 28;) and parol evidence is 
 admissible in the second suit to show what questions were con- 
 troverted in the first action, and the grounds upon which it was 
 determined. (3 Com. 512; Doty vs. Brown, 4 id. 71.) 
 
 9. Plea of Payment. 
 When an action is brought upon a demand, an^ the defend- 
 ant has paid the same, he may of course set up the payment as 
 a defence. 
 
PLEA ON TENDER, 223 
 
 There are, however, some statutory provisions on the subject 
 of payment which ought to be noticed. 
 
 ,When any action is brought upon a judgment, the defendant 
 may plead payment of the amount due on such judgment, in 
 bar of such action. (2 R. 8. 353, § 11.) 
 
 To any action brought on a bond which has a condition by 
 which the same is to become void on the payment of a less 
 sum, the defendant may plead payment of the principal sum 
 and interest due by the condition of such bond, before the 
 commencement of such action, in bar thereof, although such 
 ,payment was not made strictly according to such condition. 
 \id. k 120 
 
 10. Plea on Tender. 
 
 A party who has made a tender, must aver it specially in his 
 answer, in an action before a Justice of the Peace, if he intends 
 to rely upon it. (17 Vermont Hep. 35.) Every requisite which 
 is necessary to the validity of a tender must, by the answer, 
 be shown to have been complied with; else the answer may be 
 demurred to for not shoeing that the party tendering did all 
 in his power to pay the debt, or perform the duty. {Bacon's 
 Abridgment, Tender, H. 1.) And the answer must aver a con- 
 tinual state of readiness to pay the sum due, or to deliver the 
 property, since the tefider. (6 8medes <& Marshall, 641; 10 
 ITergef, 245.) 
 
 (1.) Tender generally. 
 > There may be a tender in money, and a tender of specific 
 articles. 
 
 There is a difference between portable and cumbrous articles, 
 as to a tender of them, when no place of delivery is mentioned. 
 With respect to the former, a personal tender is necessary; as 
 to the latter, it is sufficient if the party tendering offer to de- 
 liver as the other party shall elect. {Blingerland vs. Morse, 8 
 Johns. 474; 3 Johns. Oases, 213.) 
 
 The common law on the subject of the delivery of specific ar- 
 ticles which are portable, makes a distinction between a con- 
 tract of sale of such articles, and a contract to pay a debt at a 
 future time in such articles. In the contract of salej the delivery 
 must be made at the place where the vendor'' has the article; 
 
224 , NEW YORK JUSTICE. 
 
 but in the other case, the rule is, that the property is to be de- 
 livered at the creditor's place of residence. 
 
 Lord Coke lays down the rule, that if the articles be not port- 
 able, but ponderous and bulky, and no place of delivery be 
 named, the debtor must seek the creditor, or get him to name a 
 place of delivery; and, if no place, or an unreasonable one, be 
 named, the debtor may deliver the articles at a place which cir- 
 cumstances shall show to be suitable and convenient for the pur- 
 pose intended, and presumptively in contemplation of the par- 
 ties when the contract was made. {^Kent's Oomm. 507, 508i; 
 Co. Litt. 210 b.) 
 
 If a note be given payable in cattle, grain, or other portable 
 articles, and no place of payment be designated in the note, but 
 the time qf j)ayment is fixed by it, the creditor's j)lace of resi- 
 dence at the .time the note was given, is the place of. payment. 
 (2 Kent's Comm. 507; Goodwin vs. Holbrook, 4 Wend. 377.) 
 But, where a note is payable on demand, in specific articles, 
 without mentioning any place of payment, a special demand is 
 necessary. A note thus payable in farm produce, should be de- 
 manded at the farm of the debtor; aiwd a note payable in mer- 
 chandise, or manufactures, at the store of the merchant, or the 
 shop of the manufacture!'. {Lohdell vs. Hopkins, 5 Qow. 516.) 
 If specific articles are to be delivered at a particular time and 
 place, they must be tendered at the tijaie and place specified. 
 A note payable in specific articles, without mentioning day or 
 place, is in law payable on demand, and a special demand and 
 refusal are necessary to maintain an action. (5 Cow. 516; 
 Vance vs. Bloomer, 20 Wend. 198.) 
 
 A tender and refusal are equivalent to actual performance, so 
 far as the right to maintain an action subsequently for the thing 
 tendered is concerned; {^Shannon vs. Comstock, 21 Wend, 457;) 
 'and the question whether there have been such tender and re- 
 fusal is one for the jury. {Ooit vs. Houston, 3 Johns. Cases, 
 243.) A tender of specific articles due, and a refusal to receive 
 them, absolutely discharges the debtor, who thenceforth holds 
 them as bailee, at the expense and risk of the other party. (13 
 Wend. 95; 5 id. 514; 23 id. 34i2; 10 id. 374; 2 Kent's Comm, 
 509.) He is not responsible for their safe keeping; but if he 
 dispose of them, he will be answerable for their avails. (Coit 
 vs. Houston, 3 Johns. Cases, 249.) 
 
PLEA OP TESIDEE. 
 
 2^^ 
 
 While any thing renaains to be done by a vendor by iv&y of 
 separating goods sold from others, with a view to determine 
 their quantity or identity, or their price, the tender is incom- 
 plete; for it is a general rule, that while anything remains t6 
 be done by a vendor before delivery, the property does hot vest 
 in the vendee, but continues at the risk of the vendor. (2 Cdrnj)- 
 bell, 240; 6 Taunton, 617; McDonald vs. Hewlet, 15 Johns. 349.) 
 
 A delivery of property to a vendee, to be put in a marketable 
 condition, and to be paid for thereafter by weight to be subse- 
 qilently ascertained, is a conditional delivery, and d6es not vest 
 the title to the property in the vendee. (Ward vs. Shaw^ 7 
 Wend. 404.) ' 
 
 In tendering specific articles, the party making the tender 
 must do everything in his power to jjface himself in a state of 
 perfect readiness to perform. {Obit vs. Houston, 3 Johns. Gases, 
 253.) And, where an action was bi'ought on a promissory note 
 payable in produce, to be delivered by a certain day at the 
 maker's house, and it appealed that the maker had hay in his 
 barn ready to be delivered, but neither its quantity nor value 
 vfw shown, it was held, that there was ho' proof of a tender. 
 (Newton vs. Gdlhraith, 5 Johns. 119.) 
 
 (2.) By whom a Tender may he made. 
 A tender may be made by the party himSelf, or by a servant, 
 an attorney, or a stranger, on behalf of and at the desire of the 
 party. (Bacon's Abridgment, Tender, A.) Any person may 
 niake a tender on behalf of an idiot; for the law, by reason of 
 his utter inability to act for himself, allows this to be done out 
 of charity, (id.) 
 
 (3.) What is a good Tender. 
 
 A tender is not good unless the person making it declare 
 
 upon what account it is made. It is not enough for the persdni 
 
 who intends to make a tender to say that he is ready to psty the 
 
 debt, or perform the d^ty; but he must make an actual ofier to 
 
 pay the one, or perform the other. The actual offer of money 
 
 in a bag is a good tender, provided it be proved that the sum 
 
 intended to be tendered was in the bag; but saying in such 
 
 case, "I am here ready to pay you the money," without offering 
 
 to deliver the bag, is not a good tender, (id. B. 1; 5 Term 
 
 Mep. 432.) The tender is the production and manual offer of 
 15 
 
226 NEW YORK JUSTICE. 
 
 the money; and it is not sufficient for the party who has the 
 money in his pocket to say to the person to whom the tender is 
 made, "It is ready for you, if you will take it,", or, "You can 
 have it at any time by calling at my office." {Baheman vs. 
 Pool&r, 15 Wend. 637; 18 Connecticut Rep. 18.) 
 
 A tender of money in payment of a debt, to be available, 
 must be without qualification; for it is not of the nature of a 
 tender to make conditions, terms, or qualifications, but simply 
 to pay the sum tendered as for an admitted debt. Therefore, 
 a tender of money in full discharge of all demands of the credi- 
 tor is not good. (20 Wend. 47; Brooklyn Bank vs. DeGrraw, 
 23 id. 342; 18 Ver-mont Eep. 224.) So, a tender of the amount 
 due, on a note, made conditional upon the holder's striking out 
 an endorsement upon itpin compromise of another matter, is 
 not a good tender. {Eddy vs. G'Hara, 14 Wend. 221.) But 
 negotiable paper is an exception to the general rule that a tender 
 must be unconditional; for the endorser of a note may tender 
 payment to the holder, upon condition of the surrender of the 
 note to him. ' {^Wilder vs. Seelye, 8 Barb. 408.) 
 
 It is not always necessary to make an actual manual tender, 
 for it may be expressly waived by a party, and such a waiver, 
 by his declaration or equivalent act, will excuse an actual ofier, 
 even in the case of mo"ney. (3 Term Rep. 683; Slingerland 
 vs. Morse, 8 Johns. 474; 10 Wheat. 333.) But the money 
 should be actually produced, unless the creditor dispenses with 
 its production by some positive act or declaration. (15 Wend. 
 637; Hornby vs. Cramer, 12 Hoin. 490.) The creditor's de- 
 manding more than is due, is not equivalent to an act expressly 
 dispensing with the production of the money. that is due. 
 {Dunham vs. Jackson, 6 Wend. 22; 18 Connecticut R. 18.) A 
 strictly legal tender may be waived by an absolute refusal to 
 receive the money. {Bellinger vs. Kitts, 6 Barb. 273.) A 
 tender of a gross sum upon several demands, without designat- 
 ing the amount tendered upon each, is sufficient. (22 Vermont 
 Rep. 440.) 
 
 (4.) Ms to (he thing tendered. 
 
 The Constitution of the United States provides, that no State 
 shall make anything but gold and silver coin a tender in pay- 
 ment of debts. {Constitution U. 8. Art. I. sec. 10.) 
 
 The'act of Congress of the 2d of April, 1792, provides that 
 
PLKA OF TENDER. 227 
 
 all gold and silver' coin struck at the Mint shall be a lawful ten- 
 der iQ all pajTnents. (1 U. 8. 8tatvtes at Large, 250, ^ 16.) 
 
 By the act of Congress of the 3d of March, 1843, the follow- 
 ing foreign gold coins are receivable by weight for the payment 
 of all debts and demands at the rates following, viz: the gold 
 coins of Great Britain, of not less than 915 1-2 thousandths in 
 fineness, at 94 6-10 cents per pennyweight; and the gold coins 
 of France, of not less than 899 thousandths in fineness, at 92 
 9-10; cents per pennyvreight. 
 
 By the same act, the following foreign silver coins are re- 
 ceivable by tale, for the payment of all debts and demands at 
 the rates following, viz: the Spanish pillar dollars, and the 
 dollars of Mexico, Peru, and Bolivia, of not less than 897 thou- 
 sandths in fineness, and 415 grains in weight, at 100 cents each; 
 and the five-franc pieces of France, of not less than 900 thou- 
 sandths in fineness, and 384 grains in weight, at 93 cents each. 
 (5 id. 607.) 
 
 A legal tender can, therefore, be made only in the coins above 
 specified, except that a tender may be made in Government 
 treasury notes issued by act of Congress of February 25, 1862, 
 and June 30, 1864. {^Metropolitan Bank vs. Van Dyclc, 13 E. 
 p. Smith, 400,) and this is so although the debt was incurred 
 prior to the passage of the act of Congress. {Hague vs. Powers, 
 39 Barb. 427; Meyer vs. Roosevelt, 13 E. P. Smith, 400.) 
 
 Bank notes,* are, however, a good tender as money, unless 
 specially objected to. (10 Wheat. 333; 2 Bosanquet & Puller, 
 526; Warren vs. Mains, 7 Johns. 476.) 
 
 Where a creditor agreed to receive bank bills when a pay- 
 ment became due, and the debtor tendered current bank bills 
 on the day, it was held that the agreement to receive the bank 
 bills was a waiver of a tender in gold and silver, {id.) 
 
 In general, a payment in forged pap^, or in base coiu, is not 
 good, (lO' Wheat. 333.) Pajment in counterfeit bank notes 
 is no payment, though they be received, both parties supposing 
 them to be genuine. (2 Johns. 455; Baker vs. Bonesteel, 2 
 Hilt. 397.) But the party receiving them must ofier to return 
 them, on discovering that they are worthless, without unneces- 
 sary delay. {Thomas vs., Todd, 6 Hill, 340.) 
 
 Payment in bills of a banli which has stopped payment, is 
 no payment, where the party receiving them is ignorant of the 
 
228 i^Ew ypKK juswcE. 
 
 failure of the bank, whether the party pajdng is aware of the 
 fact or not. {Lighjtbody vs. Ontario Sank, 11 Wen,d. 9; 8. O. 
 13 W^nd. 101.) 
 
 If money which has been, duly tendered, beconies, after a re- 
 fusal to accept, of less value than it was when the tender was. 
 made, the party who refused to accept the money must bear the 
 l,oss; {Bacon's Abridgment, Tender, B, 2;) and the party tea- 
 dering, must, in order to avoid bearing the loss in such case, 
 retain the identical money, and bring it into court. (2 Qow, 
 Treatise, 253.) 
 
 A note payable in 'f leather, such as suits," is payable in such 
 leather as suits the payee, {id. 254.) 
 
 (5.) At what place a Tender must he made. 
 
 If the contract be that money in gross, or rent issuing out 
 of land, shall be paid, or that goods shall be delivered, at a 
 place certain, a tender can only be made at the place. {Bacon^s 
 Abridgment, Tender, C) 
 
 In general, if no place for the payment of money be specified 
 in a contract, the party who is to make the payment, must seek 
 the other party, if Avithin the State; and a tender at the resid- 
 ence of the latter, during his absence, will not avail. But 
 where the contract was for the sale of lands, specifying a day 
 for the payment of the purchase money, but no place, and on 
 inquiry by the vendee, the vendor said he would be at home 
 upon the day fixed, it was held that a tender at his residence 
 on that day, to his son who lived with him, he having absented 
 himself, was good. (25 Wend. 405; Smith vs. Smith, 2 Hill, 
 351.) 
 
 If a nierchant give a due-bill, payable to A, in goods, and no 
 time or place of payment be designated, the due-bill implies an 
 acknowledgment that A^has paid him in advance for the amount 
 in goods therein expressed; and a promise is implied on the 
 part of the merchant, that whenever A shall call at his store, 
 and present the due-bill, he will deliver to him such articles as 
 he shall select out of the goods on hand. The store of the 
 merchant is the place of payment; and no action can be main- 
 tained on the due-bill, until A shall call at the store of the 
 merchant for the goods, and the merchant shall refuse to de- 
 liver such goods as A shall select. Indeed, A is to be treated 
 
PLEA OF TENDEE. 229 
 
 as other customervs are to be treated. He has a right to call for 
 a part of the goods at a time, and the merchant has no right to 
 require that the whole amount shall be received at one time. 
 The merchant is also required to deliver the goods at the mar- 
 ket price, and has no right to charge them at a higher price; 
 and A has no right to require the price of the goods to be re- 
 duced, on the ground that he can purchase the goods cheaper 
 at another store; for it is presumed that A, at the time he made 
 the contract, knew at what price the merchant sold goods, and 
 paid a consideration accordingly. {Chipman on Contracts, 28; 
 FimceTS. Bloomer, 20 Wend. 196.) 
 
 (6.) At what time a Tender must he made. 
 
 It was formerly held that where money is to be paid, or 
 goods are to be deliyered, at a place certain, upon or before a 
 day certain, the tender must not only be made upon the last 
 day limited for the payment or the delivery, but also at the 
 uttermost convenient time of that day. (^Bacon's Abridgment, 
 Tender, D.) The point has not been decided by the Courts of 
 this State, but in Maryland it has been. held, that when money 
 is to paid at or upon a certain day, a tender is good; though 
 made before that day. (3 Harris (& McHenry, 85.) 
 
 Although the party has until the uttermost convenient time 
 of the last day limited for the payment or delivery, a tender is 
 not good, unless there be, after it is made, time enough, before 
 the sun sets, to examine and count the money, or to examine 
 and take an account of the goods; yet, if it happen that both 
 parties meet at the place of payment or delivery, upon any day 
 within the time limited for the payment or delivery, and a 
 tender be made, the tender is good. (^Bacon's Abridgment, 
 Tend&T', jD.) But a tender of money before it is due, is ineffec- 
 tual as a legal tender. {Mitchell vs. Cook, 29 Barb. 243.) 
 
 Where no time of payment is mentioned in a note, it is pay- 
 aible immediately, and so of a note payable on demand; {JSer- 
 nek vs. Bennet, 8 Johns. 374;) and the maker, to relieve him- 
 self, should make a tender before suit is brought. 
 
 Wheli a notp is payable in money on demand, and at a par- 
 ticular place, a demand before suit brought is not necessary;) 
 but the maker may plead readiness at the place, and bring the 
 money into court, to exonerate himself from interest and costs. 
 
230 NEW YORK JUSTICE. 
 
 (18 John. 341; Haxtm vs. Bisht)p, 3 Wend. 13; 3 Oow. 147; 8 
 id. 271.) 
 
 (7.) To whom a Tender must be made. 
 
 A tender may be made' to any person, in whom, either as a 
 party or privy, the right to the thing tendered is. A tender to 
 an executor is good, because the right of his testator to the thing 
 tendered is devolved upon him as a privy in representation; and 
 it is good, even before he has proved the will, provided he after- 
 w^jds prove it, and actually becomes an executor. (^Bacon's 
 Abridgment, Tender, JS.) 
 
 A tender Tbo an agent, clerk, or servant, authorized to receive 
 money in the transaction of the business of his principal, is as 
 valid as a tender to the principal; and where a firm revoked, in 
 a particular case, the general authority of a clerk, for the pur 
 pose of avoiding the effect of a tender, and*kept out of the way 
 themselves, a tender to the clerk was held good. (20 Wend. 431; 
 Hornby vs. Cramer, 12 How. 490.) So, where a clerk, under 
 instructions from his principal, refused to receive money, on the 
 ground that the claim had been put into the hands of an attor- 
 ney for collection, a tender made to the clerk was held to be a 
 good tender to the principal. {Jackson vs. Crafts, 18 
 John. 111.) 
 
 (8.) The consequences of a Tender and refusal. 
 
 A tender and refusal of specific articles which are due, dis- 
 charges the debtor from damages, but not from all liability; for 
 he will thereafter hold the articles as bailee for the creditor. 
 And a tender of a sum certain which is due, does not extin- 
 guish the demand, but only the liability for interest and costs 
 incurred after tender. (12 id. 274; 2 B. 8. 553, ^ 20.) 
 
 Where the tender is not accepted, it must be kept good, that is, 
 the amoimt of money tendered must be forthcoming on its being 
 demanded by the creditor, or the benefit of the tender is lost; 
 and in such a case a subsequent demand of one or two joint debt- 
 ors, is good against both. (2 Cowen's Treatise, 262; Kortright 
 vs. Cody, 23 Barb. 490.) 
 
 If the plaintiff, whether he accepts the tender or not, recovers 
 a sum beyond the amount tendered, however small, he will be 
 entitled to costs against the defendant. (Slack vs. Brown, 13 
 Wend. 390.^ After a refusal to accept a tender,^ the plaintiff 
 
PLEA OF TENDER. 231 
 
 may, at the trial, elect to accept the sum tendered, and if he 
 does so, the defendant is bound to pay, or a verdict must be 
 rendered for the amount. (13 Wend. 390, supra.) i 
 
 Where a tender is made and set up by a defendant, the plain- 
 tiff is entitled to recover the amount tendered, without further 
 proof of its being due. (Wood vs. Perry, 1 Barh. 114.) 
 
 (9.) Tender, after action hr ought. 
 
 A defendant may arrest further proceedings in an action, by 
 making a tender. The manner of making a tender and its effect 
 are clearly pointed out by statute. 
 
 When an action at law is commenced, for the recovery of a 
 sum certain, or which may be reduced to certainty by calcula- 
 tion, or for a casual or involuntary trespass or injury, the de- 
 fendant, in any stage of the proceedings, before trial in such 
 causes, or before such damages shall have been assessed, or 
 before judgment rendered in an action of debt, may tender to the 
 plaintiff, or his attorney, any sum of money which such defend- 
 ant conceives to be sufficient amends, for the injury done, for 
 which such action or proceeding was instituted, or sufficient to 
 pay the plaintiff's demand, together with the costs of such action 
 or proceeding, to the time of making such tender. (2 R. 8. 
 553, § 20.) 
 
 If it appears, upon the trial of the cause, or upon the assess- 
 ment of damages, that the amount so tendered was sufficient to 
 pay the plaintiff's demand and the costs of the suit or proceed- 
 ing up to the time of such tender, the plaintiff will not be 
 entitled to recover or collect any interest on such demand from 
 the time of such tender, or any costs incurred subsequent to 
 that time; but will be liable to the defendant for the costs 
 incurred by liim subsequent to such time. [id. 654, § 21.) 
 
 K the action or proceeding be to recover damages, and it ap- 
 pears that the sum tendered was a sufficient amends for the injury 
 done, and for the costs, as before mentioned, the plaintiff will not 
 be entitled to recover any costs in any such action or proceed- 
 ing, incurred after such tender, but will be liable to the defend- 
 ant for his costs incurred after that time. (id. \ 22.) 
 
 , If any such tender be accepted by the plaintiff, and he there- 
 after proceeds in the action, the sum so accepted must be deduct- 
 ed £:om the whole amount of the recovery, and judgment be 
 
332 , NPW YORK JUSTICE. 
 
 rep^ered only fpr the residue; and an entry of such tender and 
 acceptance must be made on the record. The plaintiff's right to 
 recover costs, and his liability to pay costs to the deifendant, 
 must; be determined by the amount of such residue. (2 B. 8. 
 554, ^ 23.) 
 
 Under these provisions it has been held, that if the plaintiff 
 refuses to accept the te;nder, when offered, he is yet entitled in 
 ^ny event to a verdict and judgment equal to the amount teil^ 
 def ed. And if a tender is made before trial, which the plaintiff 
 refuses to accept, he may afterwards, at the trial, elect to accept 
 it; and if he does so, the defendant is bound to' pay, or have a 
 verdict rendered against him for the amount. (13 Wend. 390; 
 
 Whenever an action is pending -upon any bond which has a 
 condition by which the same is to become void on the payment 
 of a less sum, the defendant may, at any time before judgment 
 rendered in such action, pay to the'plaintiff, or bring into Court 
 for the plaintiff's use, the principal sum and interest due on such 
 bond, together with the costs incurred in such action, and there- 
 upon such action must be discontinued. (2 H. S. 353, § 13.) 
 Under this statute, it has been held, that where a bond is con- 
 ditioned for the payment of money at a future day, with interest 
 semi-annually, and it is provided that in default of the payment 
 of interest at the time specified, the whole of the debt, the prin- 
 cipal with the unpaid interest, shall become due, and a default 
 in the payment of interest happens, and an action is brought de- 
 manding the whole debt, the defendant is not entitled, on bring- 
 ing into Court the arrears of interest, with the costs, to a rule 
 for discontinuance, but is liable for the principal as well as the 
 intereet. {People vs. Superior Court of N. Y^ 19 Wend. 104.) 
 
 Besides the provision of the statute, that a tender may be 
 made to the plaintiff or his attorney, it is established by the de- 
 cisional of the Courts, that a tender may be made by the pay- 
 ment of money into Court. 
 
 The object of a tender, or of the payment of money into Com't 
 .n an action for the recovery of money, is to stop interest and 
 avoid thepaynient of costs. {Raymondvs. Beamard, 12 Johns. 
 274.) As a general rule, when the sum demanded is a sum 
 certain, or capable of being ascertained by mere computation, 
 ■wjtlwut leaving any soi-t of discretion to the Justice or jury, the 
 
SET-OFF. 233 
 
 d^fendaiHt is ftt liberty to pay the money into Court. Such 
 payment is allowed, when the action is brought on a money de- 
 mand; as on a promissory note, or for debt on simple contract, 
 or for rent due; but it is not permitted in an action for a tres- 
 pass, nor generally upon an unliquidated claim. {GrahamJs 
 Practice, 454.) 
 
 The d^endant should be careful to pay into Court a sum suffi- 
 cient to satisfy the plaintiff's demand. If the claim is one 
 (Rawing interest, interest should be cast up to the time of the 
 payment into Court, a,nd the amount paid should be enough to 
 cQY^r^both principal and interest;^ otherwise, if the payment is 
 inipui&qient to cover both, the plaintiff will be entitled to costs. 
 
 The defendant may pay money into Court at any time before 
 answering; and, by analogy to the practice of Courts of Record, 
 it is presumed he may do so after issue joined, by permission 
 of the Justice. (1 Oow. Treatise, 241.) 
 
 Payment of money into Court admits the cause of action stated 
 in the complaint, only to the extent of the amount paid in; be- 
 yond that amount, the defendant may make his defence. (Spald- 
 itiff, vs. Vandercook, 2 Wend. 431.) 
 
 Where money has been paid into Court, the plaintiff may in 
 all cases take it out, and then either accept it in satisfaction of 
 his debt, or proceed in the action, at his option. (Murray vs. 
 JBet/iune, 1 id. 191.) Where money is paid into Court, and the 
 plaintiff proceeds in the suit, but fails to establish his demand 
 beyond the' amount paid in, the defendant is entitled to the costs 
 ' of the defence incurred subsequently to the payment of the 
 money into Court, but not to the costs previously accrued. 
 [AikiTis vs. Oolton, 3 Wend. 326.) 
 
 If, after the payment of money into Court, the plaintiff pro- 
 ceeds in the action, he may, at any time before trial, discontinue 
 his action by paying the costs of the defendant incurred after 
 the payment into Court, or he may suffer judgment for such 
 costs against him. {Graham's Practice, 459.) 
 
 10. Set-Off. 
 
 In the following- cases, and under the following circumstances, 
 in a Justice's Court, a defendant may set off demands which he 
 has agaiiigt the plaintiff: 
 
 1. It must be a demand, arising upon judgment, or upon con- 
 
234 NEW YORK JUSTICE. 
 
 tract, express or implied, whether such contract be writteii or 
 unwritten, sealed or without seal; and if it be founded upon a 
 bond, or other contract having a penalty, only the sum equita- 
 bly due by virtue of its condition can be set off. (2 R. 8. 234, 
 §50.) 
 
 2. It must be due to him in his own right, either as being 
 the original creditor or payee, or as being the assignee or owner 
 of the demand, {id.) 
 
 3. It must be a demand for real egtate sold, or for persoilal 
 property sold, or for money paid, or services done; or if it be 
 not such a demand, the amount must be liquidated, or be capar 
 ble of being ascertained by calculation, (id.; 3, Johns. Oases, 
 145; HartYS. Willard, 1 8andf. 254; 2 Caines, 33; 6 Cow. 613.) 
 
 4. It must have existed at the time of the commencement of 
 the suit, and must then have belonged to the defendant. (2 R. 
 8. 234, § 50; 3 Johns. Cases, 145; 19 JohTis. 322; 6 Hill, 10; 
 Event vs. 8trong, 7 id. 585.) 
 
 5. It can be allowed only in actions founded upon demands 
 which could themselves be the subject of set-off, according to 
 law. (2 R. 8. 234, § 50; 14 Johns. 63; 6 Cow. 613; Hart vs. 
 Brady, 1 8andf. 626.) 
 
 6. If there be several defendants, the demand set off must 
 be due.to all of them jointly. (2 R. 8. 234, ^ 50.) 
 
 7. It must be a demand existing against the plaintiff in the 
 action, unless the plaintiff is the assignee of a thing in action, 
 (other than a negotiable promissory note, or bill of exchange, 
 transferred in good faith and upon good consideration, before 
 due,) or unless the suit be brought in the name of a plaintiff 
 who has no real interest in the contract upon which the action 
 is founded, in which case no set-off is allowed, unless as is here- 
 inafter specified, (id.; Code, § 112.) 
 
 8. If the action be founded on a contract which has been 
 assigned, (other than a negotiable promissory note, or bill of 
 exchange, transferred in good faith and upon good considera- 
 tion, before due,) a demand existing against the plaintiff at the 
 time of the commencement of the suit, or against any assignor 
 at the time of the assignment hj him, and belonging to the de- 
 fendant in good faith before notice of such assignment, may be 
 set off to the amount of the debt claimed in the action, if the 
 demand be such as might have been set off against such assignor, 
 
SET-OFF. 235 
 
 while the contract belonged to him. {Oode, \ 112; 2 B. 8. 
 234, § 50.) 
 
 9. If the action be upon a negotiable promissory note, or bill 
 of exchange, which has been assigned to the plaintiff after it be- 
 came due, a set-off, to the amount of the plaintiff's debt, may- 
 be made, of a demand existing against any person or persons 
 who shall have assigned or transferred such note or bill after 
 it became due, if the demand be such as might have been set 
 off against the assignor, while the note or bill belonged to him. 
 (2 R. a. 235, ^ 50.) 
 
 10. If the plaintiff be a ■ trustee for any other, or if the suit 
 be in the name of a plaintiff who has no real interest in the 
 contract upon which the suit is founded, so much of a demand 
 existing against those whom the plaintiff represents, or for 
 whose benefit the action is brought, may be set off, as will 
 satisfy the plaintiff's debt, if the same might have been set off 
 in an action brought by those beneficially interested, {id.') 
 
 11. But if such action be brought by the assignee of an in- 
 solvent, imprisoned, absent, concealed, or absconding debtor, 
 no set-off shall be allowed of any debt, unless in the cases pro- 
 vided in the fifth chapter of the second part of the Kevised 
 Statutes, (id.] see 2 R. 8. 47, \ 7, subd. 1.) 
 
 In citing subdivisions seven and eight above, the language 
 of them has been changed, in order to conform it to the change 
 introduced by the Code, which requires every action to be pro- 
 secuted in the name of the rpal party in interest, except in cer- 
 tain specified cases, such as suits by an executor, administrator, 
 trustee, or person suing under a statute. (Oode, §§ 111, 113.) 
 The Code also provides, that in the case of an assignment of a 
 thing in action, the action by the assignee shall be without pre- 
 judice to any set-off or other defence existing at the time of or 
 before notice of t];ie assignment, except in the case of a nego- 
 tiable promissoiy note or bill of exchange, transferred in good 
 faith and upon good consideration, before due. {id. § 112; 
 Ainslie vs. Boynton, 2 Barb. 258.) The object of this pro- 
 vision of the Code is, to preserve the rights of a defendant in 
 regard to a set-off, where the suit is brought in the name of an 
 assignee, in the same degree in which they were protected in a 
 suit which was formerly required to be brought in the name of 
 an assignor, such as a suit on a bond or a covenant. The Code 
 
236 NEW YORK JUSTICE. 
 
 leaves the right of set-off unaffected by the change made in the 
 party bringing the action; and the law of set-off, as established 
 by the Revised Statutes, is the law of set-off under the Code. 
 {Beckwith vs. Union Bank, 4 Sandf. 610.) But the change 
 made in the party required to bring an action, has required a 
 change in the language of. subdivisions seven and eight, before 
 referred to, in order to make them express their true meaning 
 under the Code, 
 
 When a judgment is obtained before any Justice, in any suit 
 commenced by attachment, and the defendant is not personally 
 served with the aittachment or summons, and does not appear, 
 such judgment is only presumptive evidence of indebtednesSj- 
 in any suit that may be brought thereon, and may be repelled 
 by the defendant, and he will not, in such- suit, be barred of 
 any set-off which he may have against the plaintiff. {Laws of 
 1831, chap. 300, § 39.) 
 
 To entitle a defendant to a set-off, he must give notice of the 
 same in bis answer, specifying the nature of his claim with 
 reasoinable certainty, at the time of joining issue on a question 
 of fact upon the merits of the cause. (2 R. 8. 235, § 51.) 
 
 If the amount of the set-off duly established be equal to the 
 plaintiff's debt, judgment must be entered for the defendant, 
 with coats; if it be less than the plaintiff's debt, the plaintiff 
 must have judgment for the residue only, with costs. If it be 
 more than the plaintiff's debt, and the balance found due to the 
 defendant from the plaintiff in the action be one himdred dol- 
 lars or under, judgment must be rendered for the defendant 
 for the amount thereof, with costs, and execution must be ' 
 awarded, as upon a judgment in a suit brought by him; but no 
 such judgment can be rendered against the plaintiff, when the 
 contract, which is the subject of the' suit, has been assigned 
 before the commencement of such suit, nor for any balance due 
 from ajtiy other person than the plaintiff in the action, {id. 
 § 52; Laws of 1840, cAop. 317, ^ 3.) How far this provision, 
 that no judgment can be rendered against the plaintiff for a 
 balance found due to the defendant on a set-off, when the con- 
 tract which is the subject of the suit has been assigned before 
 the commencement of the suit, is practically affected by the 
 change made by the Code requiring every action to be brought 
 
SET-OFF. 237 
 
 in the name of the real ^arty in interest, is a question not yet 
 decided. 
 
 It is not necessary that something should he allowed to the 
 plaintiff, in order to sustain a judgment for the defendant upon 
 his set-off. {Oreenleaf \s. Low, 4 Den. 168.) 
 
 Formerly if the balance found due to the defendant exceeded 
 one hundred dollars, the Jus:fcice must set off so much of the 
 defendant's demand against the plaiatiff's debt as will be suffi- 
 cient to satisfy it, if required to do so by the defendant, and 
 must render judgment for the defendant for his costs; but if 
 the defendant does not require such set-off, the Justice must 
 enter, judgment of discontinuance for the defendant, with costs; 
 and the defendant may thereafter sue for and recover his 
 demand in any'Court having cognizance thereof. (2 R. S. 235, 
 § 53; Laws of 1840, chap. 317, § 3.) But now he must give 
 judgment if it be less than two hundred dollars. 
 
 If, upon the trial of a cause, it appears that the amount of 
 the plaintiff's claim, together with the demands set off by the 
 defendant, according to the preceding provisions, exceed four 
 hundred dollars, judgment of discontinuance must be rendered 
 against the plaintiff, with costs.- {id. § 54; Code, % 54, svbd. 4.) 
 
 In suits brought by executors or administrators, the defendant 
 may set off demands existing against their testators or intes- 
 tates, and belonging to the defendant at the time of their death, 
 in the same maimer as if the action had been brought by and 
 in the name of the deeeaggdi (2 R. 8. 235, § 55.) 
 
 Whenever a set-off is established in a suit brought by execu- 
 tors or administrators, the judgment must be against them in 
 their representative character, and is evidence of a debt estab- 
 lished, to be paid in the course of administration; but execution 
 cannot, issue thereon, until directed by the surrogate who 
 granted letters testamentary or of administration, {id. § 56.) 
 
 If a defendant neglects to give notice in his answer, of any 
 set-off, which, according to the preceding provisions, might have 
 been, allowed to him on the trial of the cause, he will be for- 
 ever thereafter precluded from maintaining any action to recover 
 the same, or any part thereof. And if the demand which might 
 have been set off consists of a negotiable note, or bill of ex 
 change, no action can be maintained thereon, by any person who 
 may derive title thereto from or through the defendant, {id. § 57.) 
 
238 NEW YORK JUSTICE. 
 
 But tke statute provides, (2 B: 8. 235, § 58,) that the provisions 
 in this paragraph shall not extend to the following cases: 
 1. When the set-off shall be one hundred dollars more thari 
 the judgment which the plaintiff shall have recovered; 2. When 
 the set-off consisted of a judgment in favor of the' defendant, 
 or belonging to him, rendered before the commencement of the 
 suit in which the same might have been set-off; 3. When a set- 
 off shall have been qlaimed by him, and a balance exceeding" 
 one hundred dollars shall have been found in his favor, the 
 defendant may maintain an action for such part of his demand 
 as was not allowed to him as a set-off; 4. When the suit was 
 commenced by attachment, and the defendant did not appear in 
 the suit; 5. Claims for unliquidated damages which could not 
 be set off on the trial of the cause, according to the preceding 
 provisions; 6. Claims in suit in any other Court, at the time of 
 the commencement of the suit before the Justice. 
 
 The provisions hereinbefore set forth in regard to set-off are all 
 contained in the Code and in the Eevised Statutes. 
 
 When the sum total of the accounts of both parties, proved to 
 the satisfaction of the Justice, exceeds four hundred dollars, the 
 Justice has no jurisdiction; {Code, § 54;) and he should, there- 
 fore, dismiss the suit, with costs against the plaintiff. But, to 
 bring a case within this provision, the claims, demands, of 
 accounts, which make up a sum exceeding four hundred dollars, 
 must be subsisting, open, and unadjusted between the parties; 
 that is, they must be such as are 4iot fotmded on payments, as 
 originally made, or on matters of account, which, by agreement 
 of the parties, were subsequently applied as payments. Where 
 payments have been made, on accounts settled, the balance only 
 will constitute a claim, demand, or account within the statute; 
 for, whatever has been received or applied specifically as pay- 
 ment, must be rejected. {Lamorue vs, Caryl, 4 Demo, 370.) 
 
 In an action for a tort, there can be no set-off; {Keeler vs. 
 Adams, 3 Caines, 84;) nor in an action for the recovery of dam- 
 ages for the breach of a warranty in the sale of goods. {JVil- 
 mot vs. Hard, 11 Wend. 584.) 
 
 A defendant cannot set off against an executor or administra- 
 tor a debt acquired against the estate of the deceased person sub- 
 sequently to his death; {Root vs. Taylor, 20 John.- 136;) nor 
 can an executor or administrator, in a suit against the estate of 
 
SET-OFF. 239 
 
 the deceased, set off a demand purchased since the decedent's 
 death. {Hill vs. Tollman, 21 Wend. 674.) A demand to be 
 set off against a debt due to a deceased person, must have been 
 due at his death. (Mercein vs. Smith, 2 Hill, 210.) 
 
 A cannot set off in a suit brought by B, a joint demand 
 against B and C. (12 Wend. 504; Plets vs. Johnson, 3 Hill, 
 112.) A note made by one partner is not a good set-off against 
 a demand belonging to the firm. {Ladue vs. Hart, 4 Wend. 112.) 
 
 In an action to i-ecover from a stakeholder money staked with. 
 Mm by the plaintiff on a wager upon the event of a horse-race, 
 the defendant cannot set off the amount of a deposit made by 
 him with the plaintiff upon another wager of a similar charac- 
 ter. [Bevins vs. Meed, 2 iSand. 436.) 
 
 . It is not sufficient, in an answer to a complaint, to state that 
 ''the plaintiff is indebted to the defendant, on account of pre- 
 vious transactions, in a sum of money equal to the sum claimed 
 by the plaintiff, as will appear by the account current rendered 
 by the defendant." {Wiggins vs. Gaus. 1 Code Rep. JSf. S. 117.) 
 
 One who objects to the admissibility of a set-off, and has it ex- 
 cluded, cannot object, when sued upon it, that it was not set off 
 in a former action. (9 John. 352; Babcock vs. Peck, 4 Denio, 
 292.) 
 
 Though the general rule is, that demands growing out of part- 
 nership dealings cannot be set off against individual demands of 
 one of the partners, yet a special agreement may be made for 
 such set-off. {Sewall vs. Bodewald, 1 Hall, 348.) 
 
 Where an assignment from one defendant to another, of a joint 
 interest in a demand offered as a set-off, bears date prior to the 
 commencement of the suit, this is prima facie evidence that the 
 assignment was executed before the suit was commenced. {Bell 
 vs. Davis, 8 Barb. 210.) 
 
 Where a debtor has a set-off equally applicable to two de- 
 mands against him, it is not for him to elect which of the demands 
 he will satisfy by his set-off; but the Court will direct the appli- 
 cation, according to the equities between the parties. {Tall- 
 madge vs. Fishkill Iron Co. ,'4: id. 382.) 
 
 A note or account, assigned before the commencement of a 
 suit against the assignee, may be s«st off by him, though he has 
 not actually paid for it, but only agreed to pay. (5 Hill, 163; 
 JSverit vs. Strong, 7 id, 585.) But a judgment, purchased by 
 
240 NEW YORK JUSTICE. 
 
 a party with a view to set it off, and with a condition that if hfc 
 fails to obtain the set-off, the assignment shall be void, and the 
 assignor shall pay the costs, cannot be set off; for the party 
 must be the absolute owner of the judgment to make it a set- 
 off. {Gilman vs. Van Slyck,, 7 Cow. 469, 480.) 
 
 Where a suit is brought upon an account, by the assignee 
 thereof, a promissory note of the assignor, held by the defend- 
 ant at the time of the assignment of the account, but not then 
 due, cannot be set off against such account. {Wells vs. Slew- 
 art, 3 Btrb. 40.) 
 
 11. Recoupment. 
 
 The meaning of recoupment is, a reduction of the damages 
 claimed; and it is not, in theory and contemplation of law, a 
 complete bar. Neither can it be made so by an allegation that 
 the damages which the defendant claims by way of recoupment 
 exceed those claimed by the plaintiff. In all the adjudicated 
 cases, both in England and in this State, in which recoupment 
 has been allsowed, it has been considered, and has been generally 
 described, as a partial defence, For this reason,; it is necessary 
 for the party claiming to recoup, to give notice to that effect ia 
 his answer, for thp purpqse of preventing surprise to the oppo- 
 site party. {McCullouaii vs. Oox, 6 Barh. 387.) 
 
 Mr. Barbour, in his compilation of the Law of SetOff, says, 
 that the defence is somewhat analogous to a set-off, and is pre- 
 sented, not as a matter of set-off arising on an independent con- 
 tract, but for the purpose of reducing the plaintiff's damages, 
 on the ground that he has not complied with obligations on his 
 own part, arising out of the same contract on which he brings 
 his action. Thiis, in an action by an employee to recover com- 
 pensation for services rendered, the employer is entitled to 
 show, by way of recoiipment of damages, loss sustained by him 
 through the negligence of the person employed. {Ba')i(yuii^s 
 Law of 8et-0ff, 26.) 
 
 It is well settled in this State, that, in an action for the price 
 of goods or chattels sold, or of work and labor done, or of pro- 
 fessional services rendered, whether the action be on the original 
 contract price, or on a security given therefor, it is competent 
 for the defendant to set up and give in evidence, in diminution 
 or recoupment of damages, any fraud, breach of warranty, or 
 
RECOUPMENT. 241 
 
 negligence, relating to the particular tiling in question, by which 
 he has been injured; and the whole matter is to be submitted 
 to the jury. {^Sedgwick on Damages, 477.) 
 
 Where an action is brought for the breach of a contract, 
 whether sealed or not, and the defendant can show that the 
 plaintiff has not performed the contract on his part, according 
 to its terais or spirit, and such non-performance would entitle 
 the defendant to a cross-action, he may,, at his election, instead 
 of bringing such cross-action, recoup his damages arising from 
 the breach committed by the plaintiff, whether they be liquida- 
 ted or not. But, in such case, he must give notice, in his 
 answer, of his intention to insist upon the right of recoupment. 
 (22 Wend. 155; Van Epps vs. Harrison, 5 Hill, 63.) 
 
 The right of a defendant to recoup, is not confined to cases 
 where fraud is imputable to the plaintiff. It may exist, though 
 the damages result from a mere breach of contract, and where 
 they are unliquidated on both sides. Where, on the sale of a 
 quantity of standing wood, the vendor agreed to indemnify the 
 vendee against any damage that might happen to the wood in 
 consequence of the burning of an adjoining fallow, and the ven- 
 dee gave his note for the price, and afterwards, the fallow being 
 burned over, the wood in question was destroyed by fire, it was 
 held, in an action by the vendor upon the note, that the vendee 
 might recoup his damages arising from the loss of the wood. 
 {Batterman vs. Fierce, 3 Hill, 171.) 
 
 When a defendant elects to use his claim by way of rbcoup- 
 ment, he cannot have a balance certified in his favor, as in the 
 case of a set-off; but must be content to have it go in abatement, 
 in whole or in part, of the plaintiff's demand. (Sickles vs. 
 Pattison, 14 Wend. 257.) 
 
 A defendant cannot recoup for damages accrued after the suit 
 is commenced. {Hueger vs. Edmonds, 4 JBari. 256.) 
 
 In an action on a note given for making barrels, the defendant, 
 under a proper notice in his answer, may prove that they were 
 not made pursuant to agreement, and so reduce the recovery. 
 (Spaulding vs. Vandercook, 2 Wend. 431.) Where a party 
 brings an action for work and labo'r done under a conti'act not 
 fully perlbrmed, the other party may recoup his damages for 
 such non-performance. (14 id. 257; 25 id; 655; Wagoner vs. 
 Corkhill, 40 Barl/. 175.) Where a party has failed to perform 
 16 
 
242 NEW YORK JUSTICE. 
 
 ihis contract at the day, a consent by the other party to his going 
 on aftei^warcls and completing the contract, is no waiver ef a 
 right to recoup damages for the vdelay. {Barber ys. Hose, h 
 
 If an infant refuses fully to perform an agreement to serve A 
 for a, certain time, and sues, by his next friend, for the labor 
 done, A cannot recoup his damages for the non-performance of 
 the entire contract. (WTiitmarsh vs. Hall, 3 Denio, 375.) 
 
 If one hire a horse for a journey, and the horse give out on the 
 way, without any negligence or wilfulness on the part of the 
 bailee, he may, on being sued by the bailor for the hire, recoup 
 any expenses to which he has been necessarily put in taking 
 care of the horse and completing the journey. {Harrington 
 vs. 8nyder, 3 Barb. 380.) A breach of warranty as to quality 
 in the sale of an article, may be given in evidence in diminu- 
 tion of damages, under a proper notice in the answer, in an 
 action by the vendor for the price. (8 Wend. 109; Ives vs. 
 Van Eps, 22 id. 155.) 
 
 In an action for rent, the tenant may avail himself of a breach 
 of the landlord's covenant to repair, by way of recoupment, but 
 not by way of set-off; {JSTichols vs. Dusenbury, 2 Com. 283;) 
 but, in such an action, the tenant cannot recoup damages for 
 the' tortious acts of the landlord's servants, while on the pre- 
 mises under a privilege of making repairs, resei-ved to the 
 landlord. {Crane vs. Dresser, 2 Sandf. 120.) The tenant may, 
 however, recoup damages for a breach of lessor's covenant for 
 quiet enjoyment; and such covenant is implied in a lease. 
 {Mayor of JSF. T. vs. Mabie, 3 Kern. 151.) But not if the acts 
 amount to a trespass. {Edgerton vs. Paige, 6 E. P. Smith, 
 281.) ' 
 
 By known and established custom, a warehouseman has the 
 right to receive goods from a carrier, if in apparent g6od order, 
 and advance the carrier's charges, and hold them subject to the 
 carrier's lien for the amount thus advanced; and if the goods 
 have been injured by the carrier, and the injury is not known 
 or apparent to the wai'ehouseman, before or at the time of his 
 receiving the goods, the owner must look to the carrier for his 
 damages, atid cannot recoup the same in an action by the ware- 
 houseman to recover the amount so advanced to the carrier. 
 {8age vs. Gittner, 11 Barb. 120.) 
 
PLEA OF TITLE. 243 
 
 Where,. under a parolv contract for the future delivery of a 
 fixed quantity of goods, at such times and in such places as 
 may be required, separate deliveries are made, and settled for 
 when made, e^h delivery is to be considered as in its nature a 
 separate and distinct contract; and, in an action for the price 
 of the parcel last furnished, the buyer camiot recoup his dam- 
 ages growing out of the inferior quality of the goods previously 
 delivered. Damages cannot be recouped, unless they arise out 
 of the particular contract on which the action is foujided. 
 {■Deming vs. Krnip, 4 8and. 147.) 
 
 12. Plea op Title. 
 
 A Justice has no jurisdiction of a civil action where the title 
 to real property comes in question. (Code, § 54.) 
 
 In every action brought in a Court of a Justice of the Peace, 
 where the title to 'real property comes in quesjfcion, the defend- 
 ant may, either with or without other matter of defence, set 
 forth in his answer any matter showing that such title will 
 come in question. Such answer must be in writing, be signed 
 by the defendant or his attorney, and be delivei'ed to the Jus- 
 tice. The Justice must thereupon countersign the same, and 
 deliver it to the plaintiff. (Code, § 55.) 
 
 § 31. Answer, Setting up Plea of Title. 
 In Justice's Court, 
 
 . . Before Elijah Paine, Justice. 
 
 TAX. -D Answer. 
 
 John Brown, j 
 
 The above named defendant, in answer to the plaintiff's com- 
 plaint, denies the allegations therein contained; and he further 
 says, that the premises on which the trespass is alleged to have 
 been committed belong to the defendant, and he claims title to 
 the same. John Bkown. 
 
 . , At the time of answering, the defendant must deliver to the 
 Jusitipe a written undertaking, executed by at least one sufficient 
 surety, and approved by the Justice, to the effect that' if the 
 plaintiff shall, within twenty days therea,fter, deposit with the 
 Justice a summons and complaint, in an action in the Supreme 
 Court, for,, the same cause, the defendant w;ill, withii^ twenty 
 days after such deposit, give an admission in writing of the 
 service thereof, (id, § 56.) 
 
24:4 NEW YORK JUSTICE. 
 
 An oral answer, setting up a plea of title, is a nullity; and 
 so is a written answer, if unaccompanied by the undertaking 
 required by the Code. {Code, § 58; Randall vs. Orandall, 6 
 Hill, 342.) 
 
 § 32. Vndertdlctngr on Plea of Title. 
 In Justice':^ Court, 
 
 Jo'hn Sinith ] 
 
 against \ Before Elijah Paine, Justice. 
 
 John Brown. J 
 
 John Brown, the defendant in this action, having set forth in 
 his answer matter showing that the title to real property will 
 come in question in this action: Now, therefore, we, John Nelson 
 and Royal Stow, hereby undertake to tTie effect, that if John 
 Smith, the plaintiff in this action, shall, within twenty days from 
 the date hereof, deposit with the above named Justice a sum- 
 mons and complaint, in an action in the Supreme Court, for the 
 same cause of action set forth in the complaint in this action, 
 the said defendant shall, within twenty days after such deposit, 
 give an admission, in writing of the service thereof. 
 
 Dated Auburn, December 27th, 1852. John Nelson, 
 
 EoYAL Stow. 
 
 The undertakmg must be approved by the Justice, and he 
 should be satisfied of the responsibility of the sureties. He 
 must also countersign the undertaking. His approval and coun- 
 tersigning may be as follows: 
 
 I approve of the within undertaking, and of the sufficiency of 
 the sureties therein, and countersign the same. 
 
 Elijah PijNE, Justice. 
 
 The Justice must then deliver the undertaking to the plaintiff. 
 
 Upon the delivery of the undertaking to the Justice, the 
 action before him must be discontinued, and each party must 
 pay his own costs. The costs so paid by either pai-ty must be 
 allbwed to him, if he recover costs ia the action to be brought 
 for the same cause in the Supreme Court. If no such action be 
 brought within thirty days after the delivery of the undertaking, 
 the defendant's costs before the Justice may be recovered of the 
 j^laintiff. {Code, § 57.) 
 
 If the undertaking be not delivered to the Justice, he has 
 jurisdiction of the cause, and must proceed therein; and the 
 defendant will be precluded, in his defence, from drawing the 
 title to real property ,in question, {id. § 58.) 
 
PLEA OE; TITLE. 245 
 
 If, howeveir, it appear on the trial, from the plaintiff's own 
 showing, that the title to real property is in question, an4 such 
 title, be disputed by the defendant, the Justice must dismiss the 
 action, and render judgment against the plaintiff for the costs. 
 (Code, § 59; 20 Wend. 196; Adams vs. Beach, 6 Hill, 271.) But 
 if, under this provision, the Justice improperly refuses to dis- 
 miss an action, his judgment will not be void for want of juris- 
 diction, but only voidable for error. {Koon vs. Mamzan, id. 
 44.) , And under this provision, a Justice may properly proceed 
 and render judgment, notwithstanding evidence of title to real 
 property be given by the plaintiff, if the defendant do not ex- 
 pressly dispute such title, nor move to have the cause dismissed. 
 
 m 
 
 , Though it be material for the plaintiff to show his title, as 
 where he sues as reversioner, yet if the defendant neither objects 
 to the evidence, nor disputes its effects, nor moves for a dismis- 
 sal of the cause, the title is not disputed on the trial, within 
 the meaning of the statute, and a judgment for the plaintiff is 
 valid. (Code, h 44.) 
 
 When a suit before a Justice is discontinued by the delivery 
 of an answer and undertaking, as above provided, the plaintiff 
 may prosecute an action for the same cause, in the Supreme 
 Court, and must complain for the same cause of action only on 
 which he relied before the Justice; and the answer of the 
 defendant must set up the same defence only which he made 
 before the Justice, (id. § 60.) "Where a plea of title is inter- 
 posed, by which the Justice is ousted of jurisdiction-, and an 
 action for the same cause is commenced in the Supreme Court, 
 the same rules of pleading and practice govern, it is presumed, 
 which prevail in the Supreme Court; therefore, where title is 
 pleaded, a reply is necessary. (Jewett vs. Jewell, 6 How. 185.) 
 ,1 If the judgment in the Supreme Court be for the plaintiff, 
 he recovers costs; if it be for the defendant, he recovers costs, 
 except that upon a verdict he pays costs to the plaintiff, unless 
 the Judge certifies that the title to real property came in ques- 
 tion on the trial. (Code, § 61.) 
 
 If, in an action before a Justice, the plaintiff has several 
 causes of action, to one of which the defence of title to real 
 property is interposed, and as to such cause tlie defendant 
 answers and delivers an undertaldng, as above provided, the 
 
246 NEW YORK JUSTICE. 
 
 Justice must discontinue the proceedings as to that cause, and 
 the plaintiff may commence another action therefor in the Su- 
 preme Court. As to the other causes of action, the Justice may- 
 continue the proceedings. {Code, \ 62.) 
 
 After the discontinuance of an action upon an answer of title, 
 in the Marine Court of the city of New York, the District Courts 
 of the city of New York, and the Justices' Courts of cities, the 
 new action may be brought either in the Supreme Court or in 
 any other Court having jurisdiction thereof, {id. § 68.) 
 
 A right of way is real property, within these provisions of 
 the statute; {WiWovghby vs. JenJcs, 20 Wend. 96;) but a plea 
 of title is no bar to an action by commissioners of highways, 
 for an obstruction of a highway. (7 Wend. 145; Hastings ys. 
 Glenn, 1 E. D. Smith 402.) If the defendant " sets up a right 
 of way in himself, and the question is tried by the Justice, the 
 judgment is erroneous; (6 id. 465; Whiting vs. Dudley, 19 id. 
 373;) and whether the right of way be public or private, the 
 owner's title is affected, within the meaning of these provisions 
 of the statute. ' \RandaU vs. Cranddll, 6 Hill, 342.) 
 
 Where, in an action in a Justice's Court for obstructing a 
 river, the plaintiff claimed that such river was a public highway 
 at comrnon law, and had been declai'ed such by statute, without 
 making any other proof of his right; and no fact was shown by 
 the defendant to controvert the right thus declared by law, but 
 he pleaded the general issue, and introduced in evidence a grant 
 from the Legislature, authorizing him to erect and maintain a 
 dam across the river, of such construction as not to interfere 
 with the public right of passage; it was held, that the title tO' 
 land did not come in question, so as to oust the Justice of his 
 jurisdiction. {Brown vs. Scofield, 8 Barb. 239.) 
 
 Where a plaintiff, in his complaint, averred the ownership 
 and possession of land, and an alleged entry by the defendant 
 with teams and plows, and the plowing up of shi-ubbery and 
 vines, and the destroying of trees; and the defendant answered 
 that he did it by virtue of an agreement between himself and 
 the plaintiff, on the sale of the premises by him to the plaintiff; 
 it was held, that under this issue the title to land came in ques- 
 tion, {id, 567; Snyder vs. Byer, 3 JE. D. Smith, 240.) 
 
 If, in an action of trespass for pulling dovm the plaintiff's 
 fence, the defendant justifies hi;nself on the ground that the 
 
PLEA OF TITLE. 247 
 
 place where the trespass was committed is a public highway, 
 the Justice is deprived of jurisdiction; and, if he proceed and 
 render judgment, it will be reversed. (19 Wend. 373; 6 Hill, 
 342; supra.) 
 
 The question of the actual possession of lands is not one of 
 title, within the meaning of the Code, and a Justice may try and 
 determine it. [Piet-ret vs. Moller, 3 E. D. Smith, 574.) Ac- 
 cordingly, where, in an action, for trespass, upon land, no plea 
 of title being interposed, the plaintiff relied on his actual pos- 
 session of the land, it was held that proof by the defendant that 
 he was in actual possession of the land at the time of the alleged 
 trespass, was proper, and that the title to land was not involved, 
 because the right of possession was not in question. {Ehle vs. 
 Q^ackenboss, 6 Hill, 537.) 
 
 When the title is put in issue by the answer, the Justice is 
 ousted of jurisdiction, and the consent of the parties that the 
 Justice may go on and try the action, will not give him jurisdic- 
 tion. {Stj-iker vs. Mott, 6 Wend. 465; 17 Johns, ■ill.'} But 
 where title is not pleaded before the Justice; he is not ousted 
 of his jurisdiction, because it may become necessary to prove 
 title; unless such title is disputed by defendant. {Bellows vs. 
 Sackett, 15 Barh. 96.) 
 
 Where the complaint is so drawn that the defendant can set 
 up title in hi^ answer, and, on giving the requisite security, oust 
 the Justice of his jurisdiction, but he omits to set up title, the 
 Justice retains his jurisdiction, and the defendant is precluded 
 from drawing it in question. {Adams vs. Rivers, 11 Barb. 390.) 
 
248 NEW YORK JUSTICE. 
 
 CHAPTER X. 
 
 OF ADJOUENMENTS. 
 
 An action may be adjourned by the Justice, in his discretion, 
 with or without the consent of parties; or on the plaintiff'* 
 motion; or on the defendant's motion. 
 
 1. On Motion of the Justice. 
 
 At the, time of the return of either a summons or attachment, 
 or of joining issue without process, a Justice may, in his dis- 
 eietion, and with or 'without the consent of parties, adjourn the 
 cause not exceeding eight days. (2 B. 8. 238, % 67.) For the 
 rule as to eomputing the time, and as to counting Sunday, see 
 aw^e, ^160. 
 
 A justice can in no case adjourn a cause commenced by war- 
 rant, on his own motion; nor can he exercise that right in a suit 
 commenced by summons or attachment, at any other time than 
 on the return of such summons or attachment, {id. § 68.) 
 
 On the return of a summons or attachment, if the defendant 
 refuses to plead, the Justice may, on his own motion, or on the 
 application of the plaintiff, adjourn the cause not exceeding eight 
 days. (5 Hill, 428; Thompsan vs. Sayre, 1 Den. 175.) 
 , The right of a Justice to adjourn a cause on his own motion, 
 , t^x^u^b'e cf^im^dfi|ldJlxHjci§^^t^he time of the return of the 
 process; anSyii^ajp^sifiy^Virnjn^ij^i^ Had by consent of parties, the 
 Justice cannot adjourn the causef a second time, on his own 
 motion. But he may adjourn it a second time, by consent of the 
 parties; and, if one expressly consents, and the other does not 
 object, the consent of the latter will be inferred. (7 John. 529; 
 Payne vs. WTiseler, 15 id. 492.) 
 
 If the parties have joined issue, and the cause has been ad- 
 journed, the justice cannot, on the adjourned day, thfe plaintiff 
 being present and the defendant absent, adjourn the cause to a 
 future day, on his own motion. (Gamage vs. Law, 2 Johns. 
 192.) 
 
 The discretion given to a Justice to adjourn a cause, is not an 
 
ADJOURNMENT. 249 
 
 arbitrary discretion, but ought to be soundly and judiciously ex- 
 ercised. {Rose vs. Stuyvesant, 8 Johns. 426.) Nothing, however, 
 but an abuse of discretion can be alleged as error. (5 id. 409; 
 Onderdonk vs. Ranlet, 3 Hill, 323.) 
 
 Where the parties appeared on the return day of a sum- 
 mons, but the Justice, being absent, sent a note in writing, 
 without signature, adjourning the cause to a future day, and, on 
 the adjourned day, the Justice and the plaintiff appeared in the 
 absence of the defendant, and the cause was heard, and a judg- 
 ment rendered for the plaintiff, it was held, that the adjournment 
 was irregular, and the subsequent proceedings void. {West vs. 
 Oritoinger, 4 Johns. 117.) 
 
 The Justice may, without the consent of the parties, adjourn 
 to a convenient place, different from that at which the process is 
 returnable, it having been returned, and both parties appearing 
 there. {Monell vs. Wear, 1 Oow. 112) 
 
 When the Justice adjourns on his owu/motion, he may do 
 * so without requiring proof of the absence of a material wit- 
 ness. {Kettle vs. Baker, 9 Johns^ 354.) 
 
 When a cause is adjourned to a particular day, the Justice 
 cannot, before the day arrives, upon information that both par- 
 ties have consented, adjourn the cause to a later day. {Deland 
 vs. Bichardson, 4 Den. 95.) Nor can he adjourn upon the writ- 
 ten consent of both parties if they are absent. (18 Barb. 530.) 
 
 Although a Justice may adjourn a cause when the defendant 
 does not appear, and there is no issue joined, he cannot hold 
 the cause open for an indefinite period from the return of the 
 summons; and where a cause was held open four days, and 
 then tried, the defendant not appearing, it was held to be 
 erroneous. {Wilcox vs. Clement, 4 Den. 160.) 
 
 2. On Motion of the Plaintiff. 
 At the time of the return of a summons or attachment, or the 
 joining of issue without process, the Justice must, on the appli' 
 cation of the plaintiff, adjourn the cause to some time to be fixed 
 by tjie Justice, not exceeding eight days thereafter. But such 
 adjournment cannot be granted, unless the plaintiff or his attor- 
 ney, if required by the defendant, makes oath that he cannot, 
 for want of some material testimony or witness, safely proceed 
 t6 atrial. (2 jB. & 238, § 69.) . , 
 
250 NEW YORK JUSTICE. 
 
 A Justice cannot adjourn the trial of a cause for more than 
 eight days, at the inataince of the plaintiff; but where a Justice, 
 at the request of the plaintiff, adjourned a cause for ten days, and 
 the defendant afterwards appeared and examined a witness, it 
 was held to be a waiver of the irregularity. (Dunham vs. Hey- 
 don, 7 Johns. 381.) 
 
 TJie plaintiff can obtain an adjournment, only at the time of 
 the return of process, or of joining issue without process. Where 
 issue was joined in a cause and it was adjourned, and on the 
 adjourned day, the defendant being absent, the plaintiff appear- 
 ed, and the Justice again adjourned the cause, on the suggestion 
 of the plaintiff that the defendant had agreed to an adjourn- 
 ment, and on the plaintiff's affidavit of the absence of a material 
 witness, without his showing due diligence to procure his 
 attendance, it was held, that the Justice had not an unlimited 
 discretion to adjourn at the suggestion of the plaintiff, and that 
 such adjournment was a discontinuance of the cause. {Proud- 
 Jit vs. Herman, 8 id. 391.) And, where a cause has been once 
 adjourned by consent of parties, a second adjournment cannot 
 be granted at the instanfce of the plaintiff. {Paynevs. Wheeler, 
 15 JohnS: 492.) 
 
 If the defendant requires it, the Justice has no right to grant 
 an adjournment upon the application of the plaintiff, unless 
 the plaintiff or hi? attorney makes oath that he cannot, for 
 want of some material testimony or witness, safely proceed to 
 trial. 
 
 No adjournment of a cause commenced by warrant, issued at 
 the suit of a non-resident plaintiff, can be had, except in the 
 following cases: 1. On the consent of both parties; or, 2. On 
 the application of the defendant, supported by his oath, that 
 he has a good defence to the action, and that he is not ready 
 to proceed to the trial thereof; and in such case it cannot be 
 grainted, unless the defendant will consent that any witness on 
 the part of the plaintiff, who shall be then attending, may be 
 then examined on oath by the Justice, his testimony reduced to 
 writing, certified by the Justice, and left Avith him, to be tead 
 on the trial of the cause; or, 3. On the application of the 
 plaintiff, supported by his oath, that on account of the absence 
 of some material witness or testimony, he cannot then safely 
 proceed to the trial of the cause. (2 R. 8. 238, § 70.) 
 
ADJOURNMENT. 251 
 
 If such cause be adjourned on the consent of both parties, or 
 if it be adjourned on the application of the plaintiff, the de- 
 fendant must be discharged from custody; but the. cause will 
 not be discontinued by such discharge; and, at the adjourned 
 day, the same proceedings must be had, as on the return of a 
 summons personally served. (2 R. 8. 238, § 72.) 
 
 The first adjournment of a cause commenced by warrant, 
 must be to a day not less than three, nor more than twelve 
 days thereafter, unless the parties and the Justice otherwise 
 agree, {id. 239, § 73.) 
 
 When any witness, attending before any Justice, in ^ny 
 cause, refjises to be sworn in any form prescribed by law, or 
 to answer any pertinent and proper question, and the party at 
 whose instance he attended shall make oath that the testimony 
 of such witness is so far material, that without it he cannot 
 safely proceed in the trial of such cause, such Justice miay, by 
 warrant, commit such witness to the jail of the county, {id. 
 274, \ 279.) The Justice must thereupon adjourn such cause 
 at the request of the party in whose favor such witness at- 
 tended,' from time to time, until such witness testifies in the 
 cause, or is dead or insane, {id. § 281.) 
 
 , Whenever a short summons is issued in favor of a non-resid- 
 ent plaintiff, , under section 32 , of the non-imprisonment act, 
 (see ante, p. 163,) and is returned personally served, no longer 
 adjournment can be granted than in case of a warrant at the 
 instance of a non-resident plaintiff; {Laws of 1831, chap. 300, 
 ^32;) that is, not more than twelve days, unless the parties 
 and the Justice otherwise agree. (2 R. 8. 239, § 73.) 
 
 No adjournment can be allowed, without the agreement of 
 parties, to a time beyond ninety days from the joining of the 
 issue in the action; nor can an adjournment be allowed in any 
 case to a party applying therefor, who shall have seen the 
 account or demand of the opposite party, unless such applicant, 
 if required, exhibits his account or demand, or states the nature 
 thereof, as far forth as may be in his power, to the satisfaction 
 of the Justice. (2 R. 8. 240, \\ 78, 79.) 
 
 , When a commission is applied for and granted on the part 
 
 of the plaintiff, which we shall see hereafter {Post, part I. 
 
 ^ chap. XI.) may be done whenever an issue of fact shall have 
 
 been joined in any action or suit before a Justice of the Peace, 
 
2'52 NEW YORK JiirSTICE. 
 
 the plaintiff is entitled to au adjournment for such reasonable 
 time as will enable him to procure the return of the commis- 
 sion, not exceeding ninety days from the joining- of issue. 
 (Lcms of 1841, chap. 138, § 1; Laws of 1838, chap. 243, § 2; 
 2 B. S. 239, § 74; id. 240, § 78.) 
 
 If, in any suit in the Marine Court of the city of New York, 
 the plaintiff makes oath that he cannot, for the want of some 
 material evidence or witness, safely proceed to trial, the Court 
 may, in its discretion, and upon such terms as may be deemed 
 proper, postpone the trial for such reasonable time as will en- 
 able the plaintiff to procure such evidence or witness, provided 
 such time shall not exceed three calendar months. {Laws of 
 1852, chap. 389.) 
 
 3. On Motion of the Defendant. 
 
 In all cases, (other than where the action has been commenced 
 by warrant at the suit of a non-resident plaintiff,) the defendant 
 is entitled to an adjournment, on his application therefor, and 
 on his complying with the following requisitions: 1. The ap- 
 plication must be made at the time of joining issue; 2. If re- 
 quired by the plaintiff or the Justicej the defendant must make 
 oath that he cannot safel^y proceed to trial, for. the want of 
 some material testimony or witness, to be specified by him; 
 3. If required by the plaintiff, he must give security, as here- 
 after specified. (2 R. S. 239, \ 74.) 
 
 Such adjournment must be for such reasonable time as will 
 enable the defendant to procure such testimony or witness, not 
 exceeding ninety days. (2 R. 8. 239, § 74.) 
 
 The defendant is entitled to the like adjournment, on comply- 
 ing with the like requisitions, in order to procure the return 
 of a commission, which as we shall see hereafter, {Post, part I, 
 chap. JCI,) may be issued on the application of the defendant, 
 whenever an issue of fact shall have been joined in any action 
 or suit before a Justice of the Peace. {Laws of 1838, chap. 
 243, § 2; 2R. 8. 239, § 74; id: 240, ^ 78.) 
 
 The Justice should exercise a sound discretion as to the time 
 of the adjournment, taking into consideration the residence of 
 the witness, his absence from home, his sickness, or any other 
 circumstances. 
 
 The defendant may claim one adjournment as a matter of 
 
ADJOURNMENT.'"'" 253 
 
 right,, on giving security, and making oath of the absence of a 
 material witness; he may be entitled to others on showing suffi- 
 cient cause, provided they do not exceed the ninety days. 
 {Smith vs. Fenton, 2 Cow. 425.) 
 
 The absent testimony or witness must be specified by the de- 
 fendant, if he is required to do so by the plaintiff or Justice. 
 He is not bound to detail all the testimony, or to give the names 
 of all the witnesses; it is sufficient to give the name of one 
 absent material witness, without whose testimony he cannot 
 safely proceed to trial. By doing this he makes out a case for 
 an adjournment, and that is all that can be required of him. 
 If he refuses to name his witness, or to state where he resides, 
 the adjournment may be denied, (id. 295; JParrinffton vs. 
 Payne, 15 Johns. 432.) 
 
 If the defendant does not give the security required, although 
 he complies with the statute in other respects, the adjoun^ment 
 cannot be granted, and the Justice is bound to proceed with the 
 cause. 
 
 When the plaintilF offers to admit the matters expected to be 
 proved by the absent witness, the adjournment va&j be refused. 
 And after such an offer has been made by the plaintiff, and ac- 
 cepted by the defendant, the latter is precluded from asking an 
 adjournment to enable him to procure the testimony of the same 
 witness. (Brill vs. Lord, 14 Johns. 341.) 
 
 In the case of a defendant, against whose body, notwithstand^ 
 ing the provisions of the thirtieth section of the non-imprison- 
 ment act (see ante, pp. 160, 161),- an execution can be issued 
 from a Justice's Court, the security must be a bond in the 
 penalty of one hundred dollars, to the plaintiff in the action|l 
 with such surety as the Justice shall approve, conditioned that 
 in ease judgment shall be given against such defendant at the 
 adjournied day, or at any time thereafter, and execution be issued 
 against liis person, he will render himself upon such execution 
 before the return thereof; or in default thereof, that he or his 
 surety will pay the judgment so recovered, with interest. (2 
 B. 8. 239, § 76.) 
 
 \ 33. Bond for Defendant on Adjournment, where he can be 
 Imprisoned on Execution. 
 Know all men by these presents that we, John Doe, and 
 iRichaxd Eoe, are held tod firmly bouad unto C D in the penal 
 
^54 NEW YORK JUSTICE. 
 
 sum of one hundredi dollars, to be paid to the said C D, <»• to 
 his certain i attorney, executors, administrators, or assigns; to 
 which payment, well and truly to be made, we bind ourselves, 
 our and each of our heirs, executors, and administrators, jointly 
 and severally, firmly by these presents. Sealed with our seals. 
 Dated the 28th day of November, 1852. ' 
 
 Whereas, an action has been commenced before G H, Esq., 
 Justice of the Peace, by C D, plaintiff, against A B, defendant, 
 and whereas the said action is adjourned until thie 
 day of , 18, I, on the application of said defendant: 
 
 Now, therefore, the condition of this obligation is such that if,* 
 in case judgment shall be giyen against such d,efendant at said 
 adjouriied day, or at any time thereafter, and execution be issued 
 against his persoii, he shall render himself, upon such execution, 
 before the return thereof; or if, in default thereof, the said de- 
 fendant or the said obligors shall pay the judgment so recover- 
 ed, with interest; then this obligation to be void, otherwise of 
 force. 
 
 S&led and delivered ? John Doe. [l. s.j 
 
 in presence of J Eichaed Eoe. [l. s.j 
 
 The Justice should approve the bond and sureties by making 
 •the following endorsenient oh the bond: ' 
 
 I approve of the within bond, and of the sufficiency of the 
 sureties therein. G H, Justice. 
 
 In any suit brought upon sucn bond, the plaintiff will not be 
 entitledto recover, unless he shows an execution upon'a judgment 
 obtained in the suit in which such adjournment was had, duly 
 issued within ten days after the time when by law the same 
 could be issued, against the perso^ of the defendant, and a 
 •return thereon that sjich defendant could not be found. (2 ^- 
 3. 240, § 77.) 
 
 ■ In the case of a defendant against whose body, by the pro- 
 visions of the non-imprisonment act, (ante, pp. 160, 161,) an 
 execution cannot be issued from a Justice's Court, the condition 
 of the bond to be given by him in order to obtain the forego- 
 ing adjournment, must be, that no pai-t of his property liable 
 to be taken on execution, shall be removed, secreted, assigned, 
 or in any way disposed of, except for the necessary supportof 
 himself and family,, until the plaintiff's demand shall be satisfied, 
 ,pr until the expiration of ten days after such plaintiff shall be 
 entitled to have an execution issued on the judgment obtained 
 
ADJOURNlilENT. 255 
 
 in the action, if he shall obtain such ju«3mdent. {Laws of 1831, 
 cAffljo. 300, H0-) 
 
 § 34:^ .Bond for Defendant on Adjournment, where he cannot be 
 Imprisoned on JSxecution. 
 
 Knoy all men by these presents, that we, John Doe and 
 Richard Roe, \as in § 33 to the *, and then add f\ no part of the 
 property of the said defendant, liable to be taken on execution, 
 shall be removed, -Secreted, assigned, or in any way disposed 
 of, except the necessary support of himself and family, until 
 the plaintiff's demand shall be satisfied or until the expiration 
 of ten days after such plaintiff shall be entitled to have an execu- 
 tion issued on the judgment obtained in said action, if he shall 
 obtain such judgment, then this obligation to be void, other- 
 wise of force. JoHJsr Doe. [l. s.] 
 
 Sealed, &c., [as fn \ 33.] Richaed Roe. [l. s.j 
 
 This bond and the sureties should be approved by the Justice 
 as before. 
 
 If the condition of this bond be broken, and an execution on 
 the judgment which may be obtained by the plaintiff be re- 
 turned unsatisfied in whole or in part, the plaintiff, in an action 
 on such bond, will be entitled to recover the amount due on 
 the judgment, (id^ 
 
 In an action commenced by warrant, issued at the suit of a 
 non-resident plaintiff, the defendant is entitled to an adjourn- 
 ment, oh his application, supported by his oath that he has a 
 good defence to the action, and that he is not ready to proceed 
 to the trial thereof; but in such case, it cannot be granted, 
 unless the defendant will ijonsent that any witness on the part 
 of the plaintiff, who shall be then attending, may be then ex- 
 amined on oath by the Justice, his testimony reduced to writing 
 certified by the Justice, and left with him, to be read on the 
 trial of the cause. (2 R. S. 238,^ ^ 70.) 
 
 If a cause commenced by warrant is adjourned on the appli- 
 cation of, the defendant, he must continue, during the time of 
 adjournment, in the custody of the Constable, unless he gives 
 the security before siDccified, according to Form § 33. (id. 339, 
 §71.) ' ; 
 
 The proviaonfe of law before cited, {ante, pp. 251, 252,) in 
 regard to an adjournment where a witness refuses to be sworn 
 6r to answer qtiestiohs, and in regard to an applicant for an 
 
2Q6 NEW yOEK. JUSTICE. 
 
 adjournment exhiJjitingJiis account,, if required, are applicjible 
 to an adjournment on motion of the defendant. 
 
 No adjournment can be allowed, without the agi'eement of 
 the parties, to a time beyond ninety days from the joining, of 
 the issue in the action. (2 B. S. 240, §78.) 
 
 No suit brought, .or action commenced, in any of the Distript 
 Qourts in the city of New York, abates or is discontinued by 
 reason of the abseijce of any of the Justices in said city from 
 their usual respective places of holding the said Oourts, on the 
 return day of ahy process, or upon the daylto which any cause 
 or proceeding is adjoi^rned; but the clerks of said Courts res- 
 pectively have power to adjourn such cases to such time as the 
 Justice is in attendance upon said Court, provided that such 
 adjournment shall' exceed at no one time six days, without the 
 mutual consent of the parties to the suit. (^Laws of 1840, chajp. 
 170; Laws of l%i:%, chap. IbZ -J lyaws of 1852, chap. B2i; Laws 
 of 1857, chap. 2.95, § 6.) , 
 
 4. Further Adjournments. 
 
 In all cases a defendant is entitled to a further adjournment, 
 upon giving security, if required, as heretofore directed, and 
 upon proving, by Jiis own oath or otherwise, to the satisfaction 
 of the Justice, that, he caimot safely proceed to trial, for want 
 of some material testimony or witness, and that he has used due 
 diligence ;;tp obtain such testimonj'^ or witnqss. (2 B. S. 239, 
 § 75.) But no adjournment can be allowed, without the agree- 
 ment of the parties, to a time beypnd ninety days frona the 
 joining of the issue in the action. (2 B. S. 240, ^ 78.) 
 
 If a bond has been given upon any prior adjournment, a new 
 bond is not necessary upon a subsequent adjournment, unless 
 such :bQnd be required by the Justice, or by the bail of the 
 defendant in the prior bond. (id. § 76.) 
 
 Although the defendant has had two acjjournments, he is 
 entitled to a third, on complying with the statute, provided the 
 ninety, days from the joining of the issue have not expired. 
 (Smith rs. Benton, 2 Cow. 425.) , ,, 
 
 It must not only be proved to the satisfaction of the Justice, 
 that the witness is material, but the defendant must show that 
 he has used due diligence to obtain the witness; and, if he fails 
 to do this, and refuses to disclose who or where the witness is, 
 
FUETHER ADJOURNMENTS. 257 
 
 it is proper for the Justice to refuse the adjournment. {Smith 
 vs. Fenton, 2 Cow. 425; 1 Johns. 114; 9 id. 133; Farrington 
 rs, Payne, 16 id. 432.) 
 
 It is usually required of the defendant to state that he expects 
 to be able to procure the attendance of his witness on the 
 adjourned day. As a general ru],e, the plaintiff cannot require 
 the defendant to state what he expects to prove by his absent 
 witness; but, when the defendant's conduct is such as -fairly to 
 cast suspicion upon the bona fides of the application, and he 
 refuses to disclose what he expects to prove by the ibsent wit- 
 ness, the Justice may, in his discretion, deny the adjournment. 
 {Onderdonk vs. Ranlett, 3 Hill, 323.) 
 
 If, on the adjourned day, the defendant gives security, if 
 required, and swears that he has material witnesses absent, that 
 he has subpoenaed them, and used due diligence to obtain them, 
 and expects to procure their attendance by a certain day, the 
 Justice is bound to grant an adjournment till such day, if within 
 the ninety days. (9 Johns. 133, 364; 11 id. 442; 12 id. 418; 
 13 id. 462; 15 id. 432, supra.) 
 
 ■ By agreement of the parties, a cause may be adjourned for 
 more than ninety days. (2 R. 8. 240, § 78.) 
 
 "s, 
 5. Irregular Adjournments. 
 
 An adjournment must b& regularly made, or the cause is out 
 of Court. When made by agreement of parties, in the absence 
 of the Justice, it is not good, although subsequently entered 
 by him on his pocket; and if, on an adjournment so made, the 
 defendant does not appear on the adjourned day, and judgment 
 is rendered against hirbi, it will be reversed. {Kimball vs. 
 Mabk, 10 Wend. 497.) ' 
 
 An illegal adjournment by the Justice amounts to a discon- 
 tinualice of the suit. {Proudflt vs. Herman, % Johns. 3^1.) 
 Accordirigly, where a Justice adjourns a cause more' than once 
 on his own motion, or adjourns it at the instance of the plain- 
 tiff,' after a previous adjournment, the action is discontinued. 
 {id.; 2 id. 192; Weeks vs. Lyon, 18 Barb. 530.) And so it is, 
 also, if the cause is adjourned without issue joined, unless the 
 defendant refuses to plead; {Thompson vs. 8ayre, 1 Den. 175;) 
 isv' if the Justice does not appear on the return day, and 
 adjourns the cause by a note in writing, without signature, 
 17 
 
258 NEW YOKK JUSTICE, 
 
 addressed to the plaintiff; (Wiest vs. Oritoinger, 4 Johns. 117;) 
 or if the plaintiff does liot appear on the return of the process, 
 {Sprague vs. Shed, 9 id. 140,) or on the aidjoumed day. ■ (15 
 id. 'iihy HoHon YS. Auohmoody, 7 Wend. 200.) 
 
 In the csise oi Hard vs. Shipman, (6 Barb. 621,) it was held, 
 that where an inferior Court ha.s once acquired jurisdiction, it 
 will not lose it by a subsequent error or irregularity; that 
 accordingly, a Justice does not lose jurisdiction of a cause by 
 erroneously adjourning it, contrary to^ the agreement of the 
 parties; and that a judgment! subsequently rendered by the 
 Justice is valid until reversed. The action in that case was 
 tried by a jury, on the 19th of July. 1847; the jury did not 
 agree, -and were discharged by the Justice; while the jury, were 
 deliberating on their verdict, an agreement was made by the 
 parties and the Justice, on the outer steps of the house where 
 the trial was had, that, if the jury did not agree, the cause should 
 be adjourned until the 22d of July, and a new venire be issued, 
 returnable on that day; the defendant then left the Court, and 
 was not present when the jury came in; the jury not agreeing, 
 the Justice adjourned the cause to the 26th instead of the 22d, 
 at which time the cause was called, and the plaintiff appeared, 
 but the defendant did not appear; and, after waiting one hour, 
 the defendant not appearing, the plaintiff proceeded to trial and 
 obtained a judgment. Mr. Justice Paige says: "Conceding the 
 fact to be as proved by the defendant, the result is that the 
 Justice, after the jury, were discharged, and while the Court was 
 open, adjourned the cause to the 26th of July, without the 
 consent of the defendant. This was undoubtedly an error iu 
 the Justice. If the agreement proved by the defendant was made 
 in Court, and, therefore, a valid agreement, the Justice should 
 either have adjourned the cause to the 22d of July, or should, 
 as soon as the jury were discharged, have issued a new venire 
 returnable within forty-eight hours. The Justice's adjournment 
 of the cause to the 26th of July, under the circumstances, 
 amounted, to use the language of the cases, (2 Johns. 192; 4 id, 
 117; 5 id, 353; 8 id. 391; 9 id. 140; Jumball vs. Mack, 10 
 Wend. 497,) to a discontinuance of the suit. But, according, to 
 the decision in Horton vs. Auchmoody, (supra,) the Justice did 
 not, by such adjournment, lose his jurisdiction of the cause. He 
 had jijri^diction of the cause, of the parties, and of the quesl<if)n 
 
WAIVER OF IKREGULARITY. 259 
 
 of adjournment. His error was an error of judgment, a judicial 
 error; and the only consequence of the error was, that the 
 judgment entered after the adjournment was I'eversible on c^r- 
 tiorari. Although it is said in the cases, that the adjournment 
 of a cause by a Justice, at his own instance, or at the instance 
 of the plaintiflF, without authority, amounts to a discontinuance 
 of the suit, yet, by this expression, nothing more is meant than 
 an UTegularity ar error, for which the judgment subsequently 
 entered could be avoided or reversed on certiorari. The judg- 
 ment is valid and binding until reversed. The remedy applied 
 in all the cases above cited bearing on this question, was the 
 direct remedy by certiorari. 
 
 A judgment obtained on an irregulaii adjournment is, there- 
 fore, not void, but only voidable, and is good unless set aside 
 onaippeal. ifrfv 
 
 A Justice may hold his Court open for the' purpose of obtain- 
 ing a jury; and he may hold it open a reasonable time to enable 
 a party to procure the attendance of a witness. Two hours has 
 ,been held not to be an unreasonable time for a party to procure 
 a. witness. {Pease vs. Gleason, 8 Johns. 409.) But where the 
 Justice held the cause open for twenty hours, it was held to be 
 a discontinuance. {Oreen vs. Angel, 13 Johns. 469.) 
 
 A Justice has no power to adjourn the trial of a cause after 
 it is once commenced, except upon consent of both parties; and 
 an adjournment without such authority renders the subsequent 
 proceedings void. {AberhallYs. Roach, \1 How. 2b.) 
 
 \ 6. Waivee of Irregularity. 
 
 If a party appears, and goes to trial on the merits, it is a 
 waiver of any objection to an adjournment irregularly granted; 
 and so, also, even if he only cross-examine a witness. (1 Johns. 
 Omes, \0l] 7 Johns. 381; 9 id. 136; 3 Hill, 180; Weeks vs, 
 Lyon, 18 Barb. 530.) Where, after an indefinite postponement 
 of a cause, the Justice gave written notice to the parties of the 
 time and place when and where he would try it, and they ap- 
 peared and went to trial, it was held that the discontinuance 
 was waived. [Hogan vs. Baker, 2 E. D. Smith.) 
 
 If the Justice improperly refuses to adjourn a cause on the 
 request of the defendant, and the defendant tftwward^ Yolun- 
 
260 NEW YORK JUSTICE. 
 
 tarily confesses judgment, this is a waiver of the previous irregu- 
 larityi {Hill vs. Downer, 11 Johns. 461.) 
 
 An irregular adjournment caimot be objected to as erroneous, 
 by the party at whose instance it was granted. (JPecJc vs. Mc- 
 Aljpme, 3 Games, 166.) 
 
 If a defendant is present, and answers when called by the 
 Justice, he does not thereby waive an irregularity in a prior ad- 
 journment, if he refuses to plead, and does not participate ia 
 the farther proceeding^. (5 Hill, 428; Thompson vs. 8ayre, 1 
 Den. 175.) 
 
 7. General Rules. 
 
 As a general ru.e, the Justice must wait one hour for the ap- 
 pearance of the partie*i and he need wait no longer, unless some 
 excuse, which he shall deem reasonable, be shown for farther 
 indulgence. {Allen Vs. Si&ne, 9 JB&rb. 60; ante, p. 206.) 
 
 When a party has had an adjournment for ninety days, he 
 cannot have another adjournment. {Townsend vs. Lee, 3 Johns. 
 435.) 
 
 After the jury is sworn and empannelled, an adjournment can 
 be granted only by consent of parties. (8 id. 437; Parmetee 
 vs. Thompson, 7 Hill, 11.) 
 
 A Justice who acts without jurisdiction is a trespasser; but 
 if he has jurisdiction, an error in judgment does not subject him 
 to an action. Therefore, if he grants an adjournment to a plain- 
 tiff who is not entitled to it, and subsequently renders judgment 
 against the defendant, and issues execution, he cannot be sued 
 as a trespasser. {Horton vs. Auchmoody, 7 Wend. 200.) 
 
 An action may be adjourned, where a witness, who has been 
 in part examined, is prevented by sickness from being ftirther 
 examined; but, if the witness is not produced on the adjourned 
 day, his testimony should be stricken out. (ijlements vs. Ben- 
 jamin, 12 Johns. 299.) 
 
COMMISSIONS. ■ 261 
 
 CHAPTEE XI. 
 
 OF COMMISSIONS AND SUBP(ENAS. 
 
 .Issue having been joined in an action, and an adjournment 
 had to a particular time, the next step in its progress is, to 
 prepare for trial. 
 
 A subpoena will only compel the attendance of a witness 
 who is in the same county where the action is to be tried, or 
 in an adjoining county. 
 
 i It is generally difficult to procure the attendance of a witness 
 who cannot be reached by a subpcBna; and, unless he voluntar 
 rily appears, his testimony can be obtained only by a com- 
 mjissipn. 
 
 1. Commissions. 
 
 The following are the provisions of the statute in regard to 
 the issuing of commissions by Justices of the Peace: 
 
 Whenever an issue of fact shall have been joined in any 
 actio^ or suit before a Justice of the Peace, and it shall appear 
 on the application qf either party, that any witness not residing 
 within the county where said suit is pending, or the county ad- 
 joining, is material in the prosecution or defence of such action 
 or suit, the said Justice may award a commission to one or 
 more conjpetent persons, authorizing them or any one of them 
 to examine such witness on oath upon the interrogatories set- 
 tled by the said Justice, and certified by his approbation, en- 
 tered or endorsed thereon, or by the written agreement or 
 assent of the parties annexed to such commission, to feke and 
 certifj^ the depositions of such Avitncss, and to return the same, 
 according to the directions given with such commission, in 
 which commission both parties may unite. {Laws of 1838, 
 chap. 243, § 3.) 
 
 , Such commission may be granted at the instance of either 
 party by such Justice of the Peace, at any time, upon proof 
 that due notice of such application for such commission hajS 
 been served on the adverse party at least six days before th^s . 
 
262 NEW YORK JUSTICE. 
 
 time of making such application; but the issuing of such com- 
 mission shall not postpone the trial beyond the time now au- 
 thorized by law. {2 B. 3. 240, § 78.) And whenever the 
 defendant shall neglect to , appear, or to plead in such action 
 or suit, and the plaintiff shall make application for a commis- 
 sion to take the deposition of a material witness for the pro- 
 secution of such action or suit, the Justice may award a com- 
 mission without notice, to one or more competent persons, to 
 examine such witness on oath, upon interrogatories proposed 
 by the plaintiff and settled by the Justice, to take and certify 
 the deposition of such witness, and to return the same accord- 
 ing to the directions given in such commission. {Laws of 1838, 
 chap. 243, § 3; am't of 1847, chap. 329.) The commission shall 
 be executed and returned, as is prescribed by statute when a 
 commission issues out of a Court of Record, and the deposition 
 and testimony taken in pursuance thereof shall be received on 
 the trial in testimony in the cause, with the like effect as if 
 such witness were personally examined at such trial, {id. § 4.) 
 
 The commission may be granted at any time after issue 
 joined, by giving six days notice to the adverse iparty that it 
 will be applied for. It would be proper for the party to give 
 notice of his application at the time of joining issue, if he de- 
 sires to take the testimony of a witness by commission; but he 
 is not bound to do so. He may make the application at any 
 time, even after several adjournments have been granted. He 
 cannot, however, by doing so, postpone the trial to a time 
 beyond ninety days from the joining of issue. 
 
 Before a commission is issued, all the requirements of the 
 statute must be complied with; and it must, therefore, be 
 shown, on the application, that the witness resides out of the 
 county in which the suit is pending, and out of the adjoining 
 county, and that he is a material witness. 
 
 [For form of Notice of Application for a Commission, see 
 McCall's Clerk's Assistant, p. 337.J 
 
 The notice may be served by any person, but it must be served 
 at least six days before the making of the application. The serv- 
 ice should be personal on the adverse party; but service upon 
 his agent or attorney, duly authorized to act for him in the 
 
COMMISSIONS. 263 
 
 action, will be sufficient. If the adverse party, or liis agent or 
 attorney, is present when the commission is granted, and admits 
 due service of notice, no proof of the service of notice is neces- 
 sary; ptherwise the proof must be made, either by affidavit or 
 orally. A recent statute enacts that, whenever on the trial of 
 any action, &c., it is necessary to prove the service of any notice, 
 an affidavit, showing such service to have been made, by the 
 person making such affidavit, shall be received as presumptive 
 evidence of such service, upon first proving that such person is 
 dead or insane. (Laws of 1858, chap. 244.) 
 
 An objection to the sufficiency of the notice of motion for a 
 commission must be specific, and be taken at the time of the 
 application; it is too late to object after the commission has 
 been executed and returned. {Allen vs. Edwards, 3 Hill, 499.) 
 
 § 35. Affidavit of Service of Notice. 
 
 In Justice's Court, 
 
 C D 1 
 
 ! Before G H, Esq., one of the Justices of the Peace 
 
 •^, Tj \ ^^ *"^ county of ^ 
 
 County ss: William Randall being duly sworn, says thalt on 
 the 31st day of December, 1852, he sei-veVi a notice, of which 
 the annexed is a copy, upon A B, the defendant therein named, 
 by delivering the same to him, [or, to E F, his attorney,] per- 
 sonally. 
 , . Sworn, &c. William Randall. 
 
 If proof of the service of the notice is made orally, the fol- 
 lowing oath should be administered by the Justice: 
 
 You do swear, that you will true answers make to such ques- 
 tions as shall be put to you, touching the service of notice of 
 an application for a commission in this cause. * 
 
 At the time named in the notice, and after proving its service, 
 the party applying for the commission must not only prove that 
 the witness does not reside within the county in which the suit 
 is pending, or the adjoining county, but he must establish the 
 materiality of the witness. 
 
 Proof of materiality and of residence need not necessarily 
 be made by the party himself who applies. The fact that he 
 himself is not a resident of the county where the suit is pend- 
 ing, and is absent therefrom, is a sufficient reason why the affi- 
 davit in support of the application may be made by his attorney. 
 
264 NEW YORK JUSTICE. 
 
 The affidavit of the attorney, that the witness did not reside 
 in the same or the adjoining county, but in the State of Virginia, 
 and that, as the deponent was informed and believed to be tirue, 
 he was material in the prosecution of the action, and that with-: 
 out his testimony the party could not safely proceed to trial', 
 was held to be sufficient to authorize the issuing of a commis- 
 sion. {Eaton TS. North, 7 Barb. 631.) Proof that the witness 
 is or may be matencd, and proof that he is in a certain county, 
 'without showing that he resides there, is insufficient. (Parmel- 
 lee vs. Thompson, 7 Hil\, 77.) 
 
 Where no laches is impiitable to a party applying for a com- 
 mission, and there is nothing to cast suspicion upon the appli- 
 cation, he is not bound to state what he expects to prove by the 
 witness whose testimony he seeks to procure. {Eaton vs. 
 North, 7 Barb. &%\,) But if the party states what he expects 
 to prove, and the adverse party offers to admit it, a commission' 
 should not be granted, because no time can be wanted to pro- 
 cure testimony to a fact which is admitted. (Brill vs. Lord, 
 14 Johns. 34l.) 
 
 It Tests in the sound discretion of the Justice, whether or not 
 to. issue a commission. When, therefore, it appears to him 
 satisfactorily, that there are no sufficient reasons for issuing a 
 commission, or when the application is obviously made for delay, 
 or when the party states what he expects to prove, and it is 
 clear that the testimony can in nowise be material, the Justice 
 ought not to grant a commission. 
 
 A fo^ of an affidavit showing the materiality and residence 
 of the witness is unnecessary. It may follow the language of 
 the statute, as just cited. 
 
 If oral proof is made, the following oath should be adminis- 
 terted by the Justice to the person making it: 
 
 You do swear, that you will true answers make to such ques- 
 tions as shall be put to you, touching the necessity of issuing a 
 commission in this cause. 
 
 Satisfactory proof having been made, the Justice should issue 
 the commission, directed to the person named in the notice, 
 unless it appear to the Justice that he is an improper person to 
 execute the commission, and in that case it should be directed 
 to some other competent person. 
 
COMMISSIONS. 265 
 
 § 36. Commission. 
 
 County, ss: , 
 
 'To S T, of the of , in tlie county of : 
 
 WKereas it appears to me, the undersigned, a Justice of the 
 PeaCe of the town of , in the county of , that K P, 
 
 of the of aforesaid, is a material witness in the 
 
 prosecution [or, defence] of a certain action now depending 
 before me, between C D, plaintiff, and A B, defendant: Now, 
 therefore, confiding in your prudence and fidelity, and in pur- 
 suance of the statute, I have appointed, aijd by these presents 
 do appoint you, commissioner to examine the said witness; and 
 for that purpose do authorize you, at certain days and places, 
 to be by you appointed, diligently to examine the said witness, 
 on the interrogatories hereto annexed, on oath to be taken be- 
 fore you; and to cause such examination to be reduced to 
 writing, and signed by such witness, and certified by yourself, 
 and to return the same, annexed hereto, to me, enclosed under 
 your seal, according to the directions herewith given you. 
 Given under my hand, at the aforesaid, the day 
 
 of , 18 . 
 
 G H, Justice of the peace. 
 
 Where the names of the foreign witnesses are not known to 
 the party, but they are sufficiently described, and the evidence 
 is shown to be material, the commission need not name them; 
 thus, it may require the examination of "the attorney-general " 
 of a particular State. {Shaffer vs. Wilcox, 2 Hall,' 502.) 
 
 The parties may agree upon the interrogatories, by their 
 written agreement to be annexed to the commission; but if 
 they do not, the interrogatories on both sides should be drawn 
 up and submitted to the Justice for settlement. 
 
 As to the form of the interi'ogatories, they must embrace the 
 subject of inquiry, and be governed by the rules a-pplipable to 
 oral evidence. Each party is allowed to insert any question, 
 peititient to the cause, which he shall propose. The parties 
 are also allowed to insert a general interrogatory, whether the 
 witness knows any other matter or thing, material to the party, 
 besides what he has been particularly interrogated unto; under 
 which the witness may state facts not previously called for by 
 the particular interrogatories. {Percival vs. HicJcly, 18 Johns. 
 257.) 
 
 If the general interrogatory be not answered, the deposition 
 
266 
 
 NEW YORK JUSTICE. 
 
 cannot be read; it being an undoubted principle, that the wit- 
 ness must answer substantially all the interrogatories, for 
 otherwise it is impftssible to say that he has told the whole 
 truth. {Oraham's Practice, 487,) 
 
 § 37. Interrogatories, and Cross-Interrogatories. 
 
 In Justice's Court, , ' 
 
 C D ^ . 
 
 . . Before G H, one of the Justices of the 
 
 aqamst > -n r xi, ^ c 
 
 A B and E F. J • ^^^^ ""^ *^'' ''°''''*y °^ 
 
 Interrogatories to be administered to R P, a witness to be 
 produced, sworn and examined on the part and behalf of C D, 
 plaintiff in an action now depending before G H, Esq., a Jus- 
 tice of the Peace of the county of Cayuga, against A B and 
 E F, defendants, at the suit of C D, plaintiff, before S T, imder 
 and by virtue of a commission hereto annexed. 
 
 First. Do you know the parties, plaintiff and defendants, in 
 the title of these interrogatories named, or either of them, and 
 which of them, and how long have you known them or either 
 of them? 
 
 Second. Are you acquainted with the hand writing of the 
 said A B and E F? 
 
 Third. Were the said A B and E F members' composing a 
 firm, known as B and F, and were they doing business 'at Buf- 
 falo at any time during the year 1850, and if so, at what time 
 in particular? 
 
 Fourth. Are you acquainted with the hand writing of the 
 said A B and E F, or of either and which of them? 
 
 Fifth. Look upon the paper writing hereto annexed, and 
 now shown to you at the time of your examination, and marked 
 A, and purporting to be a promissory note, made by B and F, 
 and payable to C D, dr bearer, for one hundred dollars, and 
 dated June 4th, 1848. In whose hand writing is the signature 
 to the said laote? 
 
 Lastly. Do you know any other matter or thing touching the 
 matters in question, that may tend to the benefit or advantage 
 of the plaintiff? If yea, declare as fully and at large, as if 
 you had been particularly interrogated thereto. 
 
 CD, Plaintiff. 
 
 Cross-interrogatories to be administered to the said R P. 
 First. Do you know that the firm of B and F was dissolved; 
 if so, at what time? 
 
 [Insert any other interrogatories wJdah may be^ pertinenl, and 
 
COMMISSIONS. 267 
 
 add the final interroffatoi'y as before, inserting defendant in the 
 
 AB, ^ 
 EF, 
 
 place of plaintiff.] A B, ) defendants. 
 
 If the parties agree upon the interrogatories on both sides, 
 they may. endorse their assent upon them in the following form: 
 
 We, the undersigned, parties to the action named in the an- 
 nexed commission, hereby consent that the interrogatories 
 hereto annexed may be propounded to the witness therein named, 
 by the commissioner to whom the commission is directed. 
 
 CD, Plaintiff. 
 AB, 
 EF, 
 
 Defendants. 
 
 If the parties do not assent to the interrogatories, the Justice 
 must settle them, and endorse a certificate of his approbation 
 upon them as follows: 
 
 I hereby certify that I have settled the within interrogatories 
 aud cross-interrogatories, and that I approve of the same. 
 
 G H, Justice. 
 
 The commission, with the interrogatories, as so agreed upon 
 or approved, annexed, must be sent to the commissioner who is 
 to execute it. 
 
 A party is not called upon to risk the loss of original papers 
 by annexing them to a comnaission issued to take testimony re- 
 specting them; and, where, in the examination of witnesses, by 
 commission as to an original paper, a copy is annexed to the in- 
 terrogatories that the witnesses may testify intelligently regard- 
 ing it, the evidence is not objectionable as secondary. [Com. 
 Bk. ofJPenn. vs. ITnton Bh. of K. Z"., 1 Kem. 203.) 
 
 As we have already seen, the statute provides that the com- 
 mission shall be executed and returned, as is prescribed by 
 statute when a commission issues out of a Court of Eecord. (2 
 Laws of 1838, chap. 243, § 4.) The manner of returning it may 
 be, fixed by stipulation; otherwise the provisions of the statute 
 must be complied with. (8 Barb. 233; Williams vs. Eldridge, 
 1 Hill, 249.) 
 
 :^ The Justice must direct jthe manner in which the commission 
 shall be returned, whether by mail -or by an agent. The mode of 
 returning the commission is highly important, for the purpose 
 
268 NEW YORK JUSTICE. 
 
 of guarding against frauds, and , no substantial requirement of 
 the statute can be dispensed with; if, therefore, the Justice omit 
 to give directions as to the return, the deposition cannot be read 
 in evidence. (20 Johns. 357; 3 Hill, 495; Hall vs. Barion^2b 
 Barb. 274.) 
 
 The Justice ijiust endorse on the commission a direction as to 
 its return, as follows: - 
 
 The within commission is to be returned to me at , 
 
 in the county of , my place of residence, by miail, [or, by 
 
 an agent of the plaintiff, or, defendant.] G H, Justice. 
 
 The mode of executing and returning a commission, prescrib- 
 ed by statute, (2 R. 8. 394, § 16,) when a commission issues out 
 of a Court of Record, is as follows: 
 
 " The persons to whom such commission shall be directed, or 
 any one.of them, unless otherwise expressly directed therein, 
 shall execute the same as follows: , , ,, , 
 
 1. They, or any one of them, shall publicly administer an 
 oath to the witnesses named in the commission, that the answers 
 given by such witnesses to the interrogatories proposed by them, 
 shall be the truth, the whole truth, and nothing but the truth: 
 
 2. They shall cause the examination of each witness to be re-, 
 duced to writing; and to be subscribed by Mm, and certified by 
 such of the commissioners as are present at the taking of the 
 same: 
 
 3. If any exhibits are produced and proved before them, they 
 shall be annexed to the depositions to which they relate, and 
 shall in like manner be subscribed by the witness proving the 
 same, and shall be certified by the commissioners: 
 
 4. The commissioners shall subscribe thei^ names to each 
 sheet of the depositions taken by them; they shall annex all the 
 depositions and exhibits to the commission, upon which their re- 
 turn shall be endorsed; and they shall close them up under 
 their seals, and shall address the same, when so closed, to the 
 Justice from whom the commission issued, at his place of resi- 
 dence: 
 
 5. If there is a direction on the commission to return the same 
 by mail, they shall immediately deposit the packet so directed 
 in the neai-est post-office; 
 
COMMISSIONS. 2169 
 
 6. If there be a direction on the commission to return the 
 same by an agent of the party who sued out the same, the 
 packet so directed shall be delivered to such agent." 
 
 When a commission is issued from a Court of Record, the 
 statijtte requires a copy of the foregoing directions to be annexed 
 to the commission. (2 i?. S. 394, § 16.) It is not imperative, 
 in a Justice's Court, that a copy of them should be annexed, 
 (25 Barb. 274, swpra,) but it is the most convenient way of 
 advising the commissioner of his duty. (2 Cow. Treatise, 330.) 
 
 "When the commission is executed in this State, the commis- 
 sioners have th^same power to issue subpoenas, swear witnesses, 
 and compel their attendance, as Justices of the Peace have. 
 {Laius of 1841, chap. 138, § 2.) 
 
 [For form of Commissioner's Summons to Witness, see 
 McCall's Cleek's Assistant, p. 338.] 
 
 [Tor form of Oatk to Witness examined on a Commission, 
 see McCall's Clerk's Assistant, p. 339.] 
 
 [For form of Deposition of Witness before a Commissioner, 
 see McCall's Clerk's Assistant, p. 339.] 
 
 It will have been seen that, by the fourth subdivision of the 
 foregoing statutory directions for executing a commission, the 
 commissioners must endorse their return upon the commission. 
 This is indispensable; otherwise, the commission cannot be read 
 iu evidence. (^Fleming vs. HollenbacJc, 7 Barb. 271.) Where, 
 however, the return of the commissioner was written on the 
 deposition, and the deposition and the commission, &c., w^re 
 all annexed together in such a manner that the return could 
 not be separated from the commiseion and evidence, it was held 
 that this was a substantial compliance with the statute, although 
 there was no return endorsed on the commission. Although 
 there be nothing on the envelope, or elsewhere, showing that 
 the commission was deposited as required by statute, or that it 
 was returned by mail, it will be jjresumed that the commission 
 was so deposited and returned. (25 id. 274, supra.) 
 
 \ 38. Return to be endorsed on Commission. 
 I, S T, commissioner appointed by the within commission, do 
 hereby make return thereto, and certify, that in pursuance there- 
 
270 
 
 NEW YOEK JUSTICE. 
 
 of, I did, on the day named in the annexed deposition, diligently 
 examine E P, the witness within named, on the interrogatories 
 and cross-interrogatories hereto annexed, on oath publicly ad- 
 ministered by me to the said R P, and that I caused such 
 examination to be reduced to writing, and to be subscribed by 
 the said E P, which examination is hereto annexed. 
 
 ' ST, Commissioner. 
 
 2. SUBPCENAS. • ' 
 
 (li) The issuing of a Subpcend. 
 
 If either party desires thq attendance of witnesses on the 
 adjourned day, he should apply to the Justice for a subpoena 
 for such witnesses. 
 
 Any Justice of the Peace may issue subpoenas to compel the 
 attendance of witnesses to give evidence on any trial depending 
 before himself or any other Justice. Such subpoena is valid to 
 compel the attendance of a witness being in the same county, 
 where the cause is to be tried, or being in an adjoining. counfy; 
 and in no other case. (2 R. 8. 240, § 80.) But a Justice 
 cannot issue any subpoena to compel the attendance of witnesses 
 before another Justice, in any suit, unless the person applying 
 proves by his own oath, or the oath of some other person, that 
 such suit is actually pending before such other Justice, {id. 
 §81.) 
 
 § 39. Subpoena. 
 
 Town of ' ^ " 
 
 • County, \ ^^' 
 The people of the State of New York, to E F, L M, &c,, &.C., 
 Greeting: 
 We command you, and each of you, that all business and 
 excuses being laid aside, you and each of you,, be and appear, in 
 your proper persons, before me undersigned, one of the Justices 
 of the Peace of the said town, [or, before , one of the Justices 
 of the Peace of the town of , in the county of ,],at 
 
 his office in , in the said county, on the day of 
 
 , at o'clock in the noon, then an4 tiiere to 
 
 testify those things which you or either of you know, in a certain 
 action now pending before the said Justice, between C D, plain- 
 tiff, and A B, defendant, on the part of the defendant [or, plain- 
 tiff.] \If a witness is required to produce some paper or other 
 vyritt&n evidence insert hei'e: And you, L M, are further com- 
 manded to bring with you, and then and there produce in evi- 
 
SUBP(ENAS. 271 
 
 dence, a certain agreement in writing, &c., or as the case may he 
 describing the paper.J Hereof fail not at your peril. 
 Witness my hand, this day of 18 . 
 
 . G H, Justice of the Peace. 
 
 When books or papers are directed by the subpoena to be 
 produced, it is called a subpoena ditces tecum. The thing re- 
 quired to be produced should be particularly described; and a 
 general notice to produce all letters, papers, and documents 
 touching or concerning the matter in dispute, is insufficient to 
 require the production of a particular letter. 
 
 A witness is not bound to produce books or papers, unless 
 they are in his possession and under his control; therefore a 
 clerk in a bank cannot be compelled, on a subpoena, to produce 
 its books. (Bank of JJtica vs. Hilliard, 5 Cow. 153.) 
 
 An attorney cannot be compelled to produce the papers of 
 his client, on a subpoena; but notice must be given to produce 
 them, and that, on failure to do so, secondary evidence will be 
 given of their contents. {McPherson vs. Rathbone, 7 Wend. 
 216.) 
 
 (2.) The Service of a Svibpoena. 
 
 A subpoena may be served, either by a constable or by any 
 other person. It must be served by reading the same, or stating 
 the contents to the witness, and by paying or tendering the fees 
 allowed by law for one day's attendance of such witness. (2 i?. 
 8. 240, § 82.) 
 
 A party may have one or more subpoenas; and, after the 
 Justice has inserted one name the party may insert as many otKers 
 as he chooses. (Holfs JV. I'. Hep. 326.) 
 
 A witness is not bound to attend, nor, if in attendance, is he 
 obliged to be sworn, before his fees have been paid. If the 
 amount of fees paid a witness is insufficient, although he receives 
 it without objection, the sen'ice of the subpoena is not good; 
 for it is a common case that a witness does not know, when the 
 subpoena is served, how much he is entitled to receive. Parties 
 should understand that they must pay witnesses enough at their 
 peril. If a witness attends for one day in pursuance of a sub- 
 poena, he has a right to depart on the next day, unless another 
 day's fees are paid him; but it is not necessary to serve him 
 with a new subpoena. (3 Den. 27; Hard vs. Swan, 4 id. 75.) 
 
 Witnesses from the same county, are entit ed to twelve and a 
 
272 NEW YORK JtrSTICE. 
 
 half cents, and from any other place than the same county^ to 
 twenty-five oenjts, for every day's actual attendancej (2 R. S: 
 265, § 228.) 
 
 A witness is entitled to receive his fees from the party calling 
 him, but he cannot recover them from the Justice^ {Watts vs. 
 Van Jfess, 1 Hill, 76.) A witness may expressly waive pay- 
 ment of his fees, and then he is bound to attend. (4 Den. 75- 
 supra, Gro. &ar. 522, 540.) If he attends without a subpoena, 
 and is sworn, he is entitled to his fees. (Baker vs. Brill, 15 
 Johns. 260.) 
 
 The subpoena must be personally served, and if the witness 
 be a married woman, the service must be upon her, and *^® ^®®^ 
 be paid to her personally and not to her husband. (Cro. Eliz. 122.) 
 
 A witness may waive the reading of a subpoena, or a state- 
 ment of its contents. But if he attempts to evade the hearing 
 of it, an unsuccessful attempt to read it, or to state its contents, 
 will be good service. {i^Oow. Treatise, 314.) 
 
 (3.) Attachment to compel the attendance of a witness, i 
 Whenever it appears to the satisfaction of the Justice, by 
 proof made before him, that any person duly subpoenaed to 
 appear before him, in any cause; has refused or neglected,- with- 
 out just cause, to attend as a witness, in conformity to such sub- 
 poena, and that the testimony of such witness is material, the 
 Justice has power to issue an attachment to compel the atten- 
 dance of such witness. (2 M. S. 241, § 83.) 
 
 The proof thus required to obtain an attachment, maybe 
 made by the affidavit of the party in the suit applying for such 
 attachment, or by other competent testimony, to the satisfaction 
 of the Justice before whom such suit is pending. (Laws of 
 1884, chap. 235.) It has been held that this affidavit need not 
 be an oath in writing, according to the strict and technicai sense 
 of that word, but that the application for the attachment and 
 the oath in support of it may both of them be oral. {Baker 
 vs. Willmms, 12 Barb. 527.) 
 
 The constable's return is evidence of the service of the sub- 
 poena. When the subpoena is> sei-ved by any other person, parol 
 proof of service is sufficient; and the non-attendance of the wit- 
 ness may be proved by parol, {Cogswell vs. Meech, 12 We/nd. 
 . 147.) The Justice should be satisfied that the witness has been 
 
ATTACHMENT FOB WITNESS. 273 
 
 duly subpoenaed, and neglects or refuses to attend; but even 
 then he cannot issue an attachment unless it is proved to his 
 satisfaction, by competent testimony, that the testimony of the 
 witness is material. {Courtney vs. Baker, 3 Den. 27.) 
 
 If the subpoena is served by a constable he should endorse 
 his return on it thus: 
 
 The within subpoena was personally served by me on Wil- 
 liam, Jones, the witness within named, on the 29th day of De- 
 cember, 1852. Stephen Giffokd, Constable. 
 
 [For form of Affidavit of Service of Subpoena to obtain At- 
 tachment, see McCall's Cleek's Assistant, p. 328.] 
 
 [For form of Attachment for Witness, see McCAUi's Cleek's 
 Assistant, p. 329.] 
 
 The attq,chment is issued for the purpose of compelling the 
 attendance of the witness, that he may be sworn on the trial 
 of^the cause. If, therefore, the witness be near the place of 
 trial, so that the attachment may be served and returned in a 
 short time, it may be made returnable forthwith, and the Jus- 
 tice may continue the cause open until the attachment is served 
 and returned. But if the witness be at such a distance from 
 the place of trial that the attachment cannot be served and 
 returned in a reasonable time for continuing the cause open, 
 the proper course will be to adjourn the trial to such time as 
 will be sufficient < for the service and return of the attachment, 
 and to make the attachment returnable at that time. (Ed- 
 ward's Justice, 79.) 
 
 I The attachment must be executed in the same manner as a 
 warrant, that is, the witness must be arrested by the constable 
 and taken before the Justice who issued the attachment; (2 i?. 
 S. 229, § 21;) and the fees of the officers for issuing and serv- 
 ing the same, must be paid by the person against whom the 
 attachment is issued, unless he shows reasonable cause, to the 
 satisfaction of the Judge, for his omission to attend; in which 
 case the party requiring the attachment naust pay all costs of 
 such attachment and of the service of the same. {id. 241, 
 ^,84.) 
 
 If the Justice determines that the witness shall pay the costs, 
 18 
 
274 NEW YORK JUSTICE. 
 
 and Ije refuses to pay them, the party requiring the attachment 
 may collect them from the witness, by an action; but the party 
 is liable in the first instance to pay the costs of the constable 
 and Justice. 
 
 (4.) Didy of a mtness and what will excuse non-attendance. 
 
 We have seen that a witness is excused for non attendance, 
 if his fees are not paid. [Ante, p. 271.) 
 
 The inability of a witness to attend Court must be decided 
 in reference to the modes of travelling which are in use in the 
 community. If there are modes not impracticable, and it does 
 not appear but that the witness could have made use of them, 
 his non-attendance cannot be attributed to inability. (3 Ire- 
 dell, 11.) 
 
 A witness must have a reasonable time to travel to Court 
 according to the usual modes of public conveyance, without 
 being required to travel on the Sabbath; but he is not entitled 
 to time at the rate of thirty miles a day. Therefore where a 
 witness was subpcenaed on Friday evening, to attend Court on 
 the following Monday morning, at a distance of one hundred 
 and fourteen miles from his residence, and was unable to reach 
 the Court at that time, by the ordinary modes of conveyance; 
 without travelling on Sunday, it was held that he was not lia- 
 ble in an action, to the party who subpqgnaed him, for non- 
 attendance, although a special agreement had been made that 
 no longer notice should be given than was absolutely necessary. 
 {Wilkie vs. Ohadvnck, 13 Wend. 49.) 
 
 The process of subpoena demands great and extraardinary 
 effort on the part of the witness to obey. Insolvency and pov- 
 erty form no excuse in the abstract. If received at all, they 
 must be taken in connection with the situation of the witness's 
 family, or as showing his utter inability to defray his expenses 
 Serious sickness m his family, such as would prevent a prudent 
 father or husband from leaving home on his own important 
 business, would save him from the imputation of a contempt, 
 and perhaps from, an action. But when the subpoena allows 
 him full time to attend, he should struggle to get ready, as he 
 would to go abroad on his own pressing business. If inevita- 
 bly disappointed, after exhausting every reasonable expedient, 
 he ought certainly to be excused from the payment of a pen- 
 
PUNISHMENT OP, DEFAULTING WITNESS. ' .275 
 
 alty, which presupposes some degree of neglect, at least. 
 {People vs. Di^vis, 15 Wmd. 602.) 
 
 (5.) When damages may be recovered from a defaulting witness. 
 Every person duly subpoenaed as a witness, and neglecting 
 or, refusing to appear or testify, is liable to the party in whose 
 behalf he has been subpoenaed, for all damages which such j^arty 
 sustains, by reason of such non-appearance or refusal. (2 R. 
 S. 242, § 90. . , ' 
 
 5. Pamageg can be recovered only when the witness who has 
 be^n duly subpoenaed, and fails to attend, is a material witness, 
 and the party subpoenaing him has sustained actual damage by 
 his non-attendance; and a party who causes a witness to be sub- 
 poenaed, who- is known to him not to be material, for the pui'- 
 pose of annoyance, is guilty of a contempt of Court. {Courtney 
 vs. Baker, 3 J)en. 27.) 
 
 ; An action may be maintained against a defaultkig witness for 
 the damages sustained by the plaintiff, though a jury was not 
 sworn in the cause in which the witness was subpoenaed; it is 
 enough that, the witness failed to attend without any reasonable 
 excuse, and that the plaintiff suffered damage in consequence of 
 bis absence. {Hurd vs. Swaji, 4 id. 75.) But a party who 
 n^luntarily submits to a nonsuit, when he can obtain in another 
 mode the same evidence which the absent witness would have 
 given, is not -entitled to recover damages. {Heermans vs. Wil- 
 liams, 11 Wend. 636.) 
 
 (6.) When a defaulting witness may be fined and imprisoned. 
 
 A witness, as we have seen, may fee compelled to attend by 
 attachment, and is liable in damages for non-attendance; a fine 
 may also be imposed upon him. 
 
 It is provided by statute, as follows: Every person duly sub- 
 poenaed as a witness, who shall not appear, or appearing, shall 
 refuse to testify, shall fojrfeit for the use of the poor of the 
 town, for every such non-appearance or refusal, (unless soqie 
 reasonable., cause or excuse shall be shown on his oath or the 
 oath of some other person,) such fine, not less than sixty-two 
 cents, nor more than ten dollars, as the Justice before whom 
 prosecution therefor ^hall be had, shall think reajsonable to im- 
 pose.„ (2 R. 8. 241, \ 85.) Such fine may be imposed by the 
 
276, NEW it6utL jvSiidib. 
 
 Justice, if the Witness be present and have an opportunity of 
 being hetird against the imposition thereof. (2 M. S. 241, § 86.) 
 
 If the witness, being present, oiffer no reasonable excuse for 
 hi^ nbn-attendance, it is the duty of the Justice to impose such 
 fine, not less than sixty-two cents, and not more than ten dollars, 
 as he may deem proper under the circumstances. 
 
 Mr. Justice Cowen, in his Treatise, (vol. 2, page 865,) SEtys, 
 that if the witness is absent, or if the proceeding is instituted 
 before a Justic,e other than the one before whom the suit in 
 which the penalty was incurred was depending, a summons 
 must be issued against the defaulting witness; and he gives a 
 form for such summons. He further says, that no form for the 
 summons is prescribed by the statute, nor is the time of its 
 service or return regulated, but that a reasonable time shonld 
 interyene between its date and return, and it should be served 
 a sufficient time before the day of appearance for the witness to 
 attend- that the service should be personal, by reading or 
 stating the contents of the summons; that the constable's return 
 of service would be sufficient to authorize the Justice to pro- 
 ceed; and that, unless the witness appears at the tifee and place 
 at which the summons is made returnable, and admits due 
 service of the subpoena, the Justice should require proof of the 
 sertice and of the non-attencjance of the witness, which proof 
 may be made by oral testimony. 
 
 These^views imply, that if the witness on whom the sunmions 
 is served does not appear on its return, the Justice may receive 
 proof of its service, and of the service of the subpoena, and of 
 the non-attendance of the witness in pursuance thereof, and pro- 
 ceed to impofee the fine in the absence of the witness. But it 
 seems quite clear that this view is erroneous. The statute be^ 
 fore quoted says, that such fine may be imposed by the Justice, 
 " if the witness be present and have an opportunity of being 
 heard against the imposition thereof" It is not enough that 
 the Witness should be served with a summons to appear, and 
 thus have an opportunity to be heard; but he must also be 
 actually present, or the Justice has no jurisdiction to fine him. 
 If the statute had read or instead of and, there would perhaps 
 have been some ground for the view taken by Judge Cowen. 
 
 iNor will the witness escape punishment for non-attendance, or 
 refusal to testify, by the construction which we think the sound 
 
PUNISHMENT QF DEFAULT^NO WITNESS. 277 
 
 one. If the witness is brought up on attachment, the Justice 
 may fine liim for his delinquency, while he is present in Court 
 under the attachment. Or if, being present, he refuses to testify, 
 the Justice may call on him on the spot to show cause, and pro- 
 ceed to fine him. And besides, the witness is liable in damages 
 for non-attendance. 
 
 The Justice imposing the fine must make up and enter in his 
 docket a mimjte of the conviction and of the cause thereof, and 
 the same will be deemed a judgment, in all respects, at the suit 
 of the overseers of the poor of the tpwn. (2 B. S. 241, § 87.) 
 
 ^ 40. Minute of Cpnviclton. 
 
 County ss: L M, having been duly subpoenaed as a wit- 
 ness, to attend befoj-e me, to give evidence on the trial of an 
 action depending before me between C D, plaintiff, and A B, 
 4efen(iant, on the part of the plaintiff, [or, defendant,] at my 
 pffice iia the town of , in said county, on the. day of 
 
 , 1853, at o'clock in the noon, and not appear- 
 
 ing before me in purs.uance of such subpoena, [or, and having 
 appeared before me in pursuance of such subpoena, but having 
 refused to testify,] and being now present before me, and having 
 m 'Oppprtunity of being heard against the imposition on him of 
 a fine, and no reasonable cause or excuse being shown on his 
 oath, or on the oath of any other pej'son, for such non-attend- 
 ance, [or, refusal,] is convicted of such non-attendance, [or, re- 
 fusal,] and a fine of ten dollars is imposed upon him for such 
 nou-attendance, [or, refusal,] and the costs of this donviction are 
 fixed by me at the sum of two dollars. Dated , 1853. 
 
 G H, Justice. 
 
 . Upon the imposition of such fine, and in default of payment 
 thereof, with costs, the Justice must forthwith issue an execution 
 to any constable of the county, directing him to levy such fine, - 
 with costs, of the goods and chattels of the delinquent, and, for 
 want thereof, to take and convey him to the jail of the county, 
 there to remain until he shall pay such fine and costs; and the 
 keeper of such jail is required to keep such delinquent in close 
 custody, in su»h jail, until the fine and costs be paid; bu;t such 
 imprisonment cannot exceed thirty day^. (id. § 88.) 
 
 The County Court, upop good cause shown, may remit such 
 fine or any part thereof, anclmay discharge the person from im- 
 prisonment, (id, |487, § 42.) 
 
278 NEW YORK JUSTICE. 
 
 § 41. Execution for fine and costs. 
 
 County, ss: To any Constable of the said county, 
 Greeting: 
 
 Whereas L M w^s duly subpoenaed as a witness to attend 
 before me, the undersigned, a Justice of the Peace in and for 
 the said county, to give evidence on the trial of an action 
 depending before me, between C D, plaintiff, and A B, defend- 
 ant, on the part of the plaintiff, [or, defendant,] at my office in 
 the town of , in said county, on the day of , 
 
 1853, at o'clock in the noon, and whereas the said 
 
 L M did not appear before me in pursuance of such subpoena, 
 [or, having appeared before me in pursuance of such subpoena, 
 refused to testify,] and whereas the said L M, being present 
 before me on the day of , 1853, and having then 
 
 and there had an opportunity of being heard against the imposi- 
 tion on him of a fine, and no reasonable' cause or excuse having 
 been shown on his oath, or on the oath of any other person, for 
 such non-attendance, [or, refusal,] was then and there convicted 
 by me of such non-attendance, [or, refusal,] and a fine of ten dol- 
 lars was thereupon imposed on him by me for such non-att€nd- 
 ance,. [or, refusal,] and the costs of such conviction were there- 
 upon fixed by me at the sum of two dollars; and whereas! 
 thereupon made up and entered into my docket a minute of such 
 conviction and of the cause thereof; and whereas neither the 
 said fine nor the said costs have been paid, nor any part of the 
 same: 
 
 Now, therefore, you are hereby commanded to levy the said 
 fine and costs of the goods and chattels of the sstid L M, and, 
 for want thereof, to take and convey the said L M to the jail 
 of the said county, there to' remain until he shall pay such 
 fine and costs; and the keeper of the said jail is hereby required 
 to keep the said L M in close custody, in said jail, until the fine 
 and costs aforesaid be paid, such imprisonment, however, not to 
 exceed the period of thirty days. 
 
 Witness my hand at the town of , in said county, the 
 
 day of , 1853. 
 
 G H, Justice. 
 
 When the money is collected on the execution, the constable 
 must pay the money and return the execution to tSe Justice, and 
 the Justice must pay over the amount of fine imposed to the 
 overseers of the poor of the town, for the use of the poor. (2 
 R. 8. 241, § 89.) < 
 
 When a witness attending before any Justice, in any cause, 
 
TRIAL. OF ISSUES OF FACT. 279 
 
 refuses to be sworn, iu any form prescribed by law, or to answer 
 any pertinent and proper question, and the party at whose 
 instan,ce he attended makes oath that the testimony of such wit- 
 ness is so far material, that without it he cannot safely proceed 
 in the trial of such cause, such Justice may, by warrant, com- 
 mit such witness to the jail of the county. (2 R. S. 274, 
 § 279.) Such warrant must specify the cause for which the 
 same is issued, and if it be for refusing to answer any question, 
 such question must be specified therein; and such witness must 
 be closely confined pursuant to such warrant, until he submits 
 to be sworn or to answer, as the case may be. (id. § 280.) The 
 Justice must thereupon adjourn such cause at the request of the 
 party in whose favor such witness attended, from time to time, 
 until such witness shall testify in the cause, or be dead or 
 insane, (id. § 281.) 
 
 Some remarks upon these last provisions, and Forms for car- 
 rying them into effect, will be found in the next chapter, under 
 the head of Punishment of witnesses who refuse^to testify. 
 
 CHAPTER XII. 
 
 OF THE TRIAL OF ISSUES OF FACT. 
 
 , , An issue of fact arises in a Justice's Court, upon a material 
 allegation iri the complaint controverted in the answer, or upon 
 new matter in the answer constituting a defence. (Code, § 250, 
 and § 64, suhd. 4.) A trial is the judicial examination of such 
 an issue, (id. § 252.) 
 
 We intend to consider in this chapter the regular proceedings 
 on the trial of an issue of fact. Under the head of Evidence, 
 (part I, chap. XIII,) we shall hereafter consider the manner 
 of examining witnesses, their credibility, the mode of impeach- 
 ing them, and the question as to what evidence should be 
 received and what rejected. 
 
 -When issue has been joined, the action may be tried by the 
 parties themselves, or either of them may appear by attorney. 
 
280 NEW TOEK JUSTICE. 
 
 (2 B. 8. 232, \\ 39, 41.) And it may be tried with or without 
 a jury. 
 
 After issue joined, and before the Justice proceeds to an 
 investigation of the merits of the cause, by an examination of a 
 witness, or the hearing of any other testimony, either of the 
 parties or the attorney of either of them, may demand of the 
 Justice, that the cause be tried by a jury. (2 R. 8. 242, \ 93.) 
 
 Whenever issue has been joined in a suit before a Justipe, if 
 no jury is demanded by either party, the Justice must proceed 
 to try such issue, to hear the proofs and allegations of the parties 
 and to determine the same, according to law and equity, as the 
 very right of the case may appear, {id. § 91.) And, when- 
 ever a defendant who has b'een personally served with a sum- 
 mons, or who has procured an adjournment without having 
 joined issue, neglects to appear and join issue, the Justice must 
 proceed to hear thie proofs and allegations of the plaintiff, and 
 determine the same as above prescribed, {id. § 92.) 
 
 , 1. General Rules. 
 
 The trial of a cause ought, in general, to be commenced at 
 the time appointed, or within one hour of it; but it may be 
 postponed by the Justice- for good cause. {Ante. pp. 206; 207.) 
 
 The sittings of every Court within this State must be public, 
 and every citizen may freely attend the same. (2 R. 8. 274, ^ 1.) 
 
 We have before spoken of the disqualifications of a Justice. 
 {Ante, pp. 21, to 24.) It is also provided by statute, that no 
 Judge of any Court can sit as such, in any cause to which he is 
 a party, or in which he is interested, or in which he would be 
 excluded from being a juror by reason of consanguinity or 
 affinity to either of' the parties; (2 R. 8. 275, § 2;) that no 
 judge can decide, or take part in the decision of any question 
 which shall have been argued in the Court, when he was not 
 present and sitting therein as a judge; {id.) that no judge can 
 practice, or act as attorney or counsel, in the Court of which he 
 is a judge; {id. § 4;) that no judge can have any partner prac- 
 ticing in the Court of which he is a judge; {id. § 5;) and 
 that no judge can have a voice in the decision of any cause 
 in which he has been counsel or attorney. {Laws of 184=7, chap. 
 280, § 81.) These disqualifications apply to a Justice. A Jus- 
 tice can never be a witness in his own Court; and "we have 
 
UENBRAL RULES. 281 
 
 already stated (ante, pp. 208 to 209) what steps must be taken by 
 a defepdant when the Justice is a material witness for him. 
 If the plaintiff requires the testimony of the Justice, it is his 
 own fault if he commences his suit before him; he should have 
 proceeded before another Justice. 
 
 The Justice who tries the cause must swear the witnesses; 
 (Perry vs. Weyman, 1 Johns. 520;) and he cannot decide on 
 his own knowledge of facts, but only on the evidence adduced. 
 (2 id. 189; Locke vs. Smith, 10 id. 250.) 
 
 A Justice may hold his Court open as long as may be neces- 
 sary, for the purpose of summoning a jury. {Day vs. Wilbur, 
 
 2 Cdines, 134.) So, too, a cause may be adjourned a reason- 
 able time to procure the attendance of witnesses. Two hours 
 has been held not to be an abuse of the Justice's discretion; 
 (Pease vs. Gleason, 8 Johns. 409;) but an adjournment for 
 twenty-four hours has been held to be a discontinuance of the 
 suit. (Green vs. Angel, 13 id. 469.) 
 
 Where a trial is had before a Justice with a jury, in an action 
 for a wrong, he should advise the jury to acquit a defendant 
 against whom no evidence has been given; but if he discharges 
 him himself, it is mere informality, and not error. (JVoyes vs. 
 Hewitt, 18 Wend. 141.) Such defendant, when discharged, 
 mlay be examined as a witness in the cause, (id.) If the trial 
 be without a jury, the Justice may, when the plaintiff's proofs 
 are closed, discharge a defendant against whom no evidence 
 has been given; but he should not enter judgment for him 
 until the cause is finished, for the others may be acquitted, and 
 tliere can be but one judgment for costs. (Moon vs. Hldred, 
 
 3 Hill, 104.) 
 
 The law is well settled, that one of several defendants jointly 
 sued for a wrong, may be acquitted, and sworn for his co-de- 
 fendants; and it makes no difference whether the defendants 
 have answered separately or jointly. But a defendant cannot 
 be acquitted except in the absence of all evidence tending to 
 implicate him. If there is any, even the slightest, evidence 
 against him, he cannot be discharged as a party, and received 
 as a witness. The wan^ of evidence against a party, in order 
 to entitle him to be a witness, should be so glaring and obvious 
 as to -afford strong grounds of belief that he was arbitrarily 
 made a defendant, to prevent his testimony, (id. and note a.) 
 
282 NEW YORK JUSTICE. 
 
 2. Trial by Jury. 
 
 After issue joined, and before the Justice proceeds to an 
 investigation of the merits of the cause, by an examinatipii.of 
 a witness, or the hearing of any other testimony, either one of 
 the pqfties, or the attorney of either of them, may demand 
 of the Justice that tl^e cause be tried by a jury. (2 E. S. 242, 
 § 93.) 
 
 Where the Justice tells the plaintiff to go to trial, after both 
 parties have avowed themselves ready, and, on being a«ked, 
 the defendant admits part of the plaintiff's account, and a wit;- 
 ness for the plaintiff is partly sworn, it is too late to demand a 
 trial by jury. {Gale vs. Barnes. 1 Cow. 235.) But, where a 
 Justice merely inspects a bill which is the subject of the action, 
 and no proof is called for or offered, it is not such a commence- 
 ment of the trial of a cause as to preclude either party from 
 demanding a trial by jury. {OInez/ vs. Bacon, 1 Johns. 142.) 
 
 (1.) Venire. 
 
 Upon the demand of a trial by jury, the Justice must issue 
 a ventre, directed to any constable of the county wherein the 
 cause is to be tried, commanding him to summon twelve good 
 and lawful men, in the town where such Justice resides, quali- 
 iied to serve as jurors, and not exempt from serving on juries 
 in Courts of Record, who shall be in nowise of kin to the 
 plaintiff or defendant, nor interested in such suit, to appear 
 before such Justice, at a time and place to be named therein, 
 to make a jury for the trial of the action between the parties 
 named in such venire. (2 B. S. 242, ^ 94.) 
 
 The parties may, however, agree upon any number of jurors, 
 less than six, to try the cause; and the Justice must then direct 
 in the venire, the summoning of so many jurors as shall be 
 double the number so agreed upon. .(id. 243, ^ 95.) And 
 such an agreement is good, though not made .till after the 
 return of the venire, and when the jury is drawn, if the parties 
 proceed to trial pursuant to the agreement. {Catalan vs. N^ew- 
 ell, 1 Den. 25.) 
 
 If the action in which such issue is' joined, be between two 
 tovras, the venire must direct the constable to summon twelve 
 good and lawful men of the county, qualified and not exempt 
 
VENIKE. 283 
 
 and not interested, as above provided, to make a jury for the 
 trial of such action. (2 H. S. 243, § 96.) 
 
 [For form of Venire, see McCall's CiiERK's Assistant, p. 330.] 
 
 In an action against joint debtors, a venire mentioning only 
 the defendant brought into Court, without taking notice of the 
 others, is sufficient. {Hutchins vs. Fitch, 4 Johns. 222.) 
 
 A defective venire is cured if the party make no objection at 
 the time, but proceeds to trial, {pay vs. Wilbur, 2 Gaines, 
 134.) ( 
 
 The Justice issuing a venire, must deliver it, or cause it to be 
 delivered, to some constable of the county, disinterested between 
 the parties, and against whom no reasonable objection shall have 
 been made by either party. (2 B. S. 243, § 97.) When the 
 Justice is satisfied that there is any reasonable objection against 
 a constable, he ought not to give the venire to him to be exe- 
 cuted. If the constable is personally hostile to either party, or 
 if he is on such terms of personal friendship with either party, 
 as to throw suspicion upon his integrity, or lead to the belief 
 that he will practice favoritism in the selection of the jury, the 
 Justice should not give him the venire. 
 
 If either party objects to a particular constable's serving a 
 venire, the party objecting should state his reasons under oath, 
 or the reasons may be proved by some other person than the 
 party. 
 
 No constable who has been employed to act, or who has acted, 
 as attorney or agent in respect to any claim or matter in contro- 
 versy, can summon any jury, in any Justice's Court, which shall 
 be summoned to try any question in relation to any such claim 
 or matter. (Laws of 1847, chap. 470, § 53.) 
 
 The constable to whom any venire is delivered must execute 
 the same fairly and impartially; and must not summon any per- 
 son whom he has reason to believe biased or prejudiced for or 
 against either of the parties. He must summon the jury per- 
 sonally, and must make a list of the persons summoned, which 
 he must certify and annex to the venire, and return to the 
 Justice. (2 B. S. 243, § 98.) 
 
 A venire must be served personally, and may be served like 
 a subpoena, by reading it to the juror, or stating its contents. 
 
284 :new yobk justice. 
 
 Juroirs, like witnesses,' ought to have a reasonable notice, that 
 their attendance upon Court may be as little prejudicial to them- 
 selves as possible. (1 Strange, 509.) 
 
 , Where a venire is demanded by either party, the Justice may 
 deliver it himself to the constable, to be executed; but if he de- 
 livers it to the party, and the latter does not a,ppear at thetipie 
 to which the cause is adjourned fox trial, and the venire is not 
 returned, the Justice may consider the suppression of the venire 
 by the party, as a waiver of the ti'ial by jury, and proceed tq 
 hear and try the cause himself, as if no venire had been demand- 
 ed or issued. {Coon vs. Snyder, 19 Johns. 384.) 
 
 If the venire be not returned at the time apppinted for trial, 
 it is not a reason for nonsuiting the plaintiff, but another venire 
 may be issued. {BlAnchard vs. RiMy, 7 id. 198.) If the first 
 venire has not been carried into effect, the Justice may issue 
 another venire without the former having been returned; {St- 
 hring vs. Wheedon, 8 id. 460; 2 Caines, 184;) and, if issued at 
 the instance of the party who obtained the first venire, it will 
 be considered as his process, and lie will not be allowed to ob- 
 ject to the form of it. (id) 
 
 When the venire has not been returned, and the pany does 
 not demand another ijenirie, but -goes, ;to trial, he thereby waives 
 a trial by jury. {Blanckard vs. Richly, 7 Johns. 198.) 
 
 It is the duty of the epnstable to make a list of the persons 
 whom he has summoned, and certify it, and annex it to the 
 venire, and return the whole to the Justice. The certificate 
 should be endorsed on the list, as follows: 
 
 I certify that, by virtue of the annexed precept, I have per- 
 sonally summoned as jurors the several persons named in the 
 within list. Dated 1853. , H C, Constable. . , 
 
 When a venire is issued, the costs of the venire abide the event 
 of the suit, {^Rickey vs. Bowne, 18 Johns. 131,) but the party 
 calling for a jury is bound to pay the jurors' fees before they 
 render their verdict. 
 
 Every person who is duly summoned as a juror, and does. not 
 appeal', nor render a reasonable excuse for his default, or appear* 
 ing refuses to serve, is subject to the same fine, to be prosecuted 
 for, and collected with costs, in the same manner, and applied to 
 the same use, as is provided in respect to a person subpoenaed 
 
QUALIFICATIONS OT JIJROBS. ' 285 
 
 as a witness, And not appearing, or appearing and refusing to 
 testify. (2 i2. S. 175, § 112.) And the return of the consta- 
 ble on the venire is evidence that the juror has been summoned. 
 {Wheeler vs. Lampman, 14 Johns. 481.) For the manner of 
 fining a defaulting witness, see ante, pp. 275 to 279. * 
 
 It is illegal for the Justice to try the cause without a jury, 
 "after a venire has been issued, unless by consent of the parties. 
 
 (2.) Qvalifications and exemptions of jurors. 
 By statute, (2 R. 8: 411, § 13,) the following persons are 
 qualified to serve as jurors : 
 
 1. Male inhabitants of the town, not exempt from serving on 
 juries; 
 
 2. Of the age of twenty-one years, or upwards, and under sixty 
 years old; 
 
 3. Who are at the time assessed for personal property belong- 
 ing to them in their own right, to the amount of two hundred 
 and fifty dollars, or who shall have a freehold estate in real 
 property in the county, belonging to them in their own right, or 
 in the right of their wives, to the value of one hundred and fifty 
 dollars; 
 
 4. In the possession of their natural faculties, and not infirm 
 or decrepid; . 
 
 5. Free from all legal exceptions, of fair character, of 
 approved integrity, of sound judgment and well-informed. 
 
 Every person residing in either of the counties of Niagara, 
 Erie, Chautauque, Cattaraugus, Allegany, Genesee, Orleans, 
 Monroe, Livingston, Jefferson, Lewis, St. Lawrence, Steuben and 
 Franklin, who does not possess either of the qualifications speci- 
 §ed in the third of the above subdivisions, but is qualified in all 
 other respects, and who shall have been assessed on the last 
 assessment roll of the town for land in, his possession which he 
 holds un!der contract for the purchase thereof, upon which 
 improvements shall have been made to the value of one hun- 
 flred.and fifty dollars, and who owns such improvements, is 
 qualified to serve as a juror.. (^ R. S. 211, § 14.) Every 
 person residing on the New Stockbridge tract, in the towns of 
 Vernon aVid Augusta, in the county of Oneida, and Lenox and 
 Smithfifild, in the coun'ty of Madison, who is in possession of 
 lands under a contract for purchase, and is worth one hundred 
 
286 NEW YORK JUSTICE. 
 
 and fifty dollars in personal property, or shall have made im- 
 provements upon such lands to that amount, is, if otherwise 
 qualified according to law, qualified to serve as a juror in any 
 Court holden before any Justice of the Peace within the town. 
 {Laws of 1829, chap. 57.) In the city of New York, all per- 
 sons otherwise duly qualified, are qualified jurors, whether they 
 have been assessed or not. {Laws of 1847, chap. 495, §1.) ♦ 
 
 No inhabitant of any town, city or county, is disqualified as a 
 jurol- or witness in any case brought to recover any penalty or 
 forfeiture, on the ground that such penalty or forfeiture is to be 
 applied for the benefit of such town, city or county, or for the 
 benefit of the poor thereof; nor is any officer, on such ground, 
 disqualified from serving any process for the summoning of a 
 jury in such cause. (2 R. 8. 551, § 2.) Nor, in penal actioiK 
 for the recovery of any sum, is it a good cause of challenge to 
 the jurors summoned, or to any officer summoning them, that 
 such juror or officer is liable to pay taxes in any town or county 
 which may be benefited by such recovery, {id. 420, § 58.) In 
 respect to the city of Syracuse, it is specially provided by stat- 
 ute that no person shall be an incompetent judge, juror, witness, 
 or justice, by reason of being an inhabitant or freeholder in tiie 
 city of Syracuse, in any action or proceeding in which the said 
 city is a party, or interested. {Laws of 1857, chap. 63.) The 
 same provision exists in reference to Fort Plain {Laws of 1855, 
 chap. 183) and Antwerp. {Laws of 1854, chap. 296.) ■ > 
 
 The jurors must reside in the town where the Justice resides, 
 except, as we have before seen, where the action is between two 
 towns. 
 
 Idiots, insane persons, aliens, {Laws of 1845, chap. 115, § 12,) 
 and persons convicted of infamous crimes, are disqualified, 
 although they possess the other qualifications. 
 
 The following persons are exempt by statute from serving on 
 juries: Every collector of tolls, the clerks of each collector, not 
 exceeding two, having the collector's certificate that they are 
 actually employed by him, all superintendents of repairs, lock- 
 tenders, inspectors of boats, and weigh-masters, while actually 
 engaged in their respective employments on the canals, while 
 the same are navigable; (1 R. 8. 250, ^ 187;) the superinten- 
 dent and each of his deputies, and all persons employed in 
 attendance upon any works for the manufacturing of coarse salt, 
 
EXEMPTIONS OF JURORS. 287 
 
 )andtlie eommission or appointment in writing of any such officer 
 or deputy, and the certificate of any owner or agent of any coarse 
 salt manufactory, that any person is employed or engaged in 
 attending upon such manufactory, is evidence of the facts stated 
 therein;) {id. 278, § 153;) the resident officers of the State lunatic 
 asylum, and all attendants and assistants actually employed 
 tHerein, during the time of such employment, (and the certificate 
 of the superintendent is evidence of the fact of such employ- 
 ment;) {Laws of 1842, chap. 135, § 10;) all general and staff 
 officers, all fieJd officers, and all commissioned and non-commis- 
 sioned officers, musicians and privates of the uniformed corps 
 of the State, during the time they shall perform military duty; 
 {Laics of 1847, chap. 290, § 43; as amended by Laws of 1851, 
 chap. 180;) the officers and members of the Auburn and^ing 
 Sing Guards, so long as they continue to be members of such 
 companies, and the members of the fire company attached to the 
 State prison at Auburn, so long as they continue members, (upon 
 the certificate of the board of inspectors;) {Laws of 1847, chap. 
 360, §§ 116, 130;) the keepers of every county or State prison, 
 and all persons employed in any such prison, during their con- 
 tinuance in office; {id. 148;) Seventh Day Baptists and Jews on 
 .Saturday: {id. chap. 349, ^1;) keepers of poor-houses and alms- 
 houses; .(1 B. 8. 631, % 72;) aliens; {Laws of 1845, chap. 115, 
 § 12; 1 R. 8. 721, § 30;) firemen who are regularly enrolled 
 and recognized hy the constituted authorities of the several cities 
 and villages of this State, during the time of their service, and 
 forever, after they have served five years, {Laws of 1848, chap. 
 188,) (but in the city of New York, no fireman is exempt, unless 
 he actually performs all the duty of a fireman in his company, 
 and, to entitle him to such exemption, he must produce a cer- 
 tificate of the foreman or other chief officer of his company, that 
 he is a faithful and an acting member.) {Laws of 1847, chap. 
 495, § 18.) 
 
 The statute further provides, (2 R. 8. 415, § 33,) that the 
 Court shall discharge any person from serving on a jury in the 
 following cases: 
 
 1. When it shall satisfactorily appear that such person is not, 
 at the time, the owner, in his own right, or in the right of his 
 1vife, of a freehold estate in real property, situated within the 
 county, of the value of one hundred and fifty dollars, and is not 
 
288 NEW YORK JUSTICE. 
 
 the owner of personal property to the value of two hundred and 
 fifty dollars, and, in the counties specified in the preceding four- 
 teenth section, {ante, p* 285,) that such person is not possessed 
 of the property qualification therein required; 
 
 2. When it shall appear that such person is under tweaty-one 
 years of age, or over sixty years of age; or that he is not in 
 possession of any of his rational faculties; i 
 
 3. When there is any legal exception against such person; 
 
 4. When such person is^a non-commisaioned ofiioer, musician 
 or private, of any uniform company or troop; and is duly 
 equipped and uniformed, according to law, and shall claim such 
 exemption. The evidence of such exemption shall be the certifi- 
 cate 'of the commanding officer of the company or troop, tha* 
 the*person claiming the same is a member of such company, 
 and is duly equipped and uniformed, according to law. Such 
 certificate must be dated within three months <sf the time of 
 presenting the same; and the signature must be verified by oath. 
 Every such certificate must be filed with the Court to which it 
 is ofiered; 
 
 5. When such person is a member of any company of fireipen, 
 duly organized according to law; 
 
 6. When such person is in the actual employment of any 
 glass, cotton, linen, woolen, or iron manufacturing company, by 
 the year, month, or season; » 
 
 7. When such person is a superintendent, engineer, or col- 
 lector of any canal authorized by the laws of this State, any 
 portion of which shall be actually constructed and navigated; 
 
 8. When such person is a minister of the gospel, or teacher 
 in any college or academy, or when such person is or shall be 
 specially exempted by law from serving on juries. 
 
 The statute further provides, (2 R. 8. 416, ^ 35,) that the 
 Court to which any person shall be returned as a juror, shall 
 excuse such juror from servmg at such Court, whenever it shall 
 appear: 
 
 1. That he is a practising physician, and has patients requit- 
 ing his attention; 
 
 2. That he is a surrogate, or Justice of the Peace, or executes 
 any other civil office, the duties of which are, at the time, in- 
 consistent with his attendance as a juror; 
 
DRAWING OF TEE JURY. 289 
 
 3. That he is a teacher in any school, actually employed tod 
 serving as such; 
 
 4. When, for any other reason, the interests of the public, or 
 of the individual juror, vrill be materially injured by such at- 
 tendance; or his own health, or that of any member of his 
 family, requires his absence from such Court. 
 
 The following persons, in addition to those heretofore ex- 
 empt, are exempt from serving on juries, and from any fine or 
 penalty for neglect thereof, to wit: The operators, assistant 
 operators, clerks, and other persons in the employ of the dif- 
 ferent telegraph companies in the State of New York, and 
 while doing duty in the office of said companies, or along the 
 routes of their telegraph lines. {Laws of 1861, chap. 532.) 
 
 (3.) Drawing \Qf the. jury. 
 
 The jury having been summoned in the manner heretofore 
 (directed, and the parties and Justice being ready for trial, and 
 the jury having appeared, the next duty of the Justice is to 
 draw the jury. He should first, however, enter in his docket 
 the names of the jurors who appear, and of those who do not 
 appear. 
 
 : At the trial of the cause, the names of the persons returned 
 •as jurors, and who appear, must be respectively written on 
 several and distinct pieces of paper, as nearly of one size as 
 may be; and the constable, in the presence of thfe Justice, must 
 roll up or fold such pieces of paper, as nearly as may be in the 
 same manner, and put them together in a box, or some con- 
 venient thing. (2 R. S. 243, § 99.) 
 
 o The Justice must then draw out six (or such number as the 
 parties may have agreed upon) of such papers, «ne after an- 
 other, and if any of the persons whose names are so drawn are 
 challenged and set aside, then such further number must be 
 drawn as will make up the number required, after all legal 
 causes of challenge allowed by thte Justice. The persons so 
 drawn, appearing and approved as indifferent, must compoise 
 the jury to try the cause, {id. § 100.) 
 
 If a sufficient number of competent jurors is not drawn, the 
 Jiistiee may supply the deficiency by directing the constable tb 
 summon any of the bystanders, or others, who mfty be compe' 
 19 
 
290 NEW YORK JUSTICE. 
 
 tent, and against whom no cause of challenge shall appear, to 
 act as jurors in the cause. (2 R. 8. 243, \ 101.) 
 
 If the constable to whom the venire has been delivered does 
 not Teturn the same as thereby required, or if a full jury is not 
 obtained in the manner above specified, the Justicse must issue 
 a new venire, {id. § 102.) 
 
 The Justice may continue to issue venires until a jury is 
 formed; but on a new venire, the jurors are to be called and 
 sworn as they appear, without being ballotted for. Any new 
 venire may be in the same form as the original venire, except 
 that, where the new venire is issued for part of a jury, it should 
 order the constable,, instead of twelve, to savamanfour (or such 
 other number as may be necessary) good and lawful men, &c., 
 to mahefour of a jury, <&c. 
 
 Before the jury is sworn, the entire, jury, or aay member of 
 it, may be challenged. , 
 
 (4.) Cha^i^eriges to jurors. 
 
 It is provided by statute, that upon the trials of any issue 
 or issues of fact, joined in a civil action, each party shall be 
 entitled peremptorily to challenge two of the persons drawn 
 as jurors for such trials. {Laws of 1847, chap. 134, § 1.) 
 
 Either party may challenge the array, that is, the whole 
 panel returned by the officer, on account of some supposed 
 partiality or irregularity in summoning, returning or drawing 
 the jury; and, if that, fails, he canxh^ve TecStJitese to the chal- 
 lenge to the polls, that is, a challenge to each pai-ticular juror. 
 
 A challenge to the array is either principal or for favor; 
 ^principal, when it is based on the ground of gross or palpable 
 partiality ^ unfairness; for favor, when it is on account of 
 $ome supposed partiality in the constable, as, if there is a rela- 
 tionship between one of the parties and the officer who sum- 
 moned the jury. The principal challenge is determined by the 
 Court, whose decision is conclusive. The challenge for favor 
 is investigated by triers, whose verdict is final. In either case, 
 the whole panel is set aside, if the challenge is sustained.., 
 
 It is a good cause of challenge to the array, that the jury 
 were . summoned by a constable who acts as attorney of the 
 adverse party; but, if the par(;y challenging has expressly 
 assented to their being summoned by such constable, he can- 
 
CHALLENGES TO JUKORS. 29l 
 
 not afterwards challenge the array on that ground. {Watkins 
 vs. Wean, 10 Johns. 107.) 
 
 A Justice has no right, on his own motion, without any 
 exception being taken by either party, to challenge the panel of 
 jurors, and issue a new venire. {Cross vs. MouUon, 15 Johns. 
 469.) 
 
 Challenges to the polls, also, are principal, or for favot'. A 
 principal challenge may be on account of some defect in the 
 qualifications of the juror; on account of some partiality pre- 
 sumed from relationship; or on account of incapacity arising 
 from a conviction for an infamous crime, or otherwise. A chal- 
 lenge to a juror for favor, is when the juror is not so palpably 
 partial as to be obnoxious to a principal challenge for that cause, 
 yet there are reasonable grounds to suspect that he will act 
 under prejudice or bias. 
 
 It is a good cause of principal challenge to a juror, that he has 
 previously given aii opinion on the question in controversy 
 between the parties. (1 id. 316; People vs. Honeyman, 3 Den. 
 121.) But it must be a fixed and settled opinion, and not a con- 
 ditional one. It must be an opinion founded on his own know- 
 ledge, or on informatipn from those who are acquainted with 
 the facts, and not on mere rumoi-. {Ex parte Yermilyea, 6 Cow. 
 554.) ' The' opinion, to disqualify, need not be accompanied by 
 ill-will.' .{People vs. Vermilyea, 7 Cow. 108.) -r >.. 
 
 It is a good cau^ of challeng'e to a juror, that he is not^ia free- 
 holder of the towil; {Streeter vs. Hearsey,,ll Johns. 168;) and 
 the fact ■ may be tried by the Court on the examination of the 
 juror under Oath. ' (Sweet rs. Palmer, 16 id. 180.) The Justice 
 ought to exclude a Kifiinlten mail fr&rfr«the jury; and also frojj^ 
 being a witness. ^Jiullard y^. 8poor., 2 Cow. 480;)'" ' ' - **■ 
 
 It is cause of principal challenge to a juror, that he is the 
 tenant of either of the 'parties Ho the suit. The act abolishing 
 distress for fent has Abt removed this ground of challenge. 
 {Hathaway vs. HetHrmr, 25 Barb. 29.) 
 
 A challenge to the array may be made at any time before any 
 of the jurors are sworn; and a challenge to the polls at any time 
 before the jtiror challenged is sworn, but after he is sworn, it is 
 too late. {iEygleston vis. 8miley^ 11 Johns. 133.) The chal- 
 lenges may be either 6ral or ip writing., Au oniission to chal- 
 
292 NEW YORK, JDSTICE. 
 
 lenge is a waiver of all objection to a juror. [Clark vs. Van 
 Vrancken, 20 Barb. 278.) 
 
 A principal challenge, either to the array or to the polla, is 
 tried by the Justice alone, on the testimony of witnesses. (2 
 Goto. Treat. 891, 2d ed.) 
 
 The following is the oath to be administered to the witnesses, 
 on the trial of all challenges: 
 
 You do swear that you will true answers make to such ques- 
 tions as may be put lo you, touching the challenge depending^ 
 
 The juror may a,lso be sworn, and he is bound to anwer the 
 same questions that other witnesses are compelled to answer. 
 The oath to the juror may be as follows: 
 
 You dp swedr that you will true answers make to such ques- 
 tions as may. be put to you, touching your competency as a 
 juror, between John Doe, plaintiff, andEichardEoe, defepdant. 
 
 If the challenge be to the array for favor, the Justice must 
 appoint two triers. They may be selected from the jury, or 
 other proper persons may be appointed. The following path 
 may be administered to the triers on the challenge to the array 
 for favor: 
 
 'You do s^ear that you will well and truly try this issue of 
 cliallenge to the array of the jurors in this action, betweeri 
 John Doe, plaintiff, and Eichard Eoe, defendant, and a true 
 finding make according to evidence. 
 
 A- chaileBgef .to a juror for favor is decided by triers, or, if the 
 adverse party consents, liy*the Justice. If such consent be bnce 
 given, it cannot be revoked, and a demand made for triers. 
 (People vs. Bathbun, 21 Wend. 509.) In the absence of such 
 consent, the challenge is tried thus: If two jurors have been 
 already called and admitted without objection, they must try 
 the challenge; if not, the Justice must appoint two indifferent 
 perspits to try it, who are called triers. If triers try one juror, 
 and he is found indifferent, he and the two triers must J;^ the 
 next; and when tWo jurors are sworn upon ther'''3^y, ihey 
 become triers in the ease o% all subsequent challenges, and 
 supersede the persons previously sworn as triers. (Graham's 
 Prac. 267.) .. . _ 
 
EVIDENCE. 293 
 
 . vThe follbwing is the oath to be administered to those who try 
 a challenge to a juror for favor: (^Freeman vs. Tlie People, 4 
 Den. 9:) , 
 
 You do swear that you will well and truly try, and truly 
 fijjd,, vliether Johji Brown, the juror challenged, s|;3,nds indifFer-. 
 ent between John Doe, plaintiff, and Richard Roe, defendaiit. 
 
 If the juror is found indiffej.'ent, he is immediately to be sworn 
 on the jury unless challenged peremptorily. If he is found not 
 indifferent, the Justice must proceed to swear the next juror, if 
 he is not challenged. If a juror be challenged and Rejected, he 
 cannot afterwards be sworn as a talesman. {Orakamis Prac. 
 267.) , 
 
 Where a party on a trial before a Justice, challenges a juror, 
 but the Justice overrules the objection, and allows him to sit as 
 a juror; and after the rest of the jurors have been drawn, the 
 Justice asks the parties if they "have any objection to the jurors 
 as they stand, and they reply in the negative, this does not oper- 
 ate as a waiver of the objection taken to the juror challenged. 
 {Hathaway vs. Helmer, 25 Barb. 29.) 
 
 (5.) Bwearing the jurors. • 
 
 The Justice must administer to each juror an oath or affii'mar 
 ^on in the following form: (2 R. 8. 244, ^ 103:) 
 
 You do "swear, [or, affirm,] well and truly to try the matter 
 in difference between John Doe, plaintiff, and Richard Roe, de- 
 fejjjdant, and, unless discharged by the Justice, a true verdict to 
 give, according to evidence. 
 
 After the jury ai-e duly sworn, they must sit together, and 
 hear the proofs and allegations of the parties, which must be 
 delivered publicly in their presence, (fd. § 104.) 
 
 , : (6.) Btatemevt of the catise of action. 
 
 After the jury have been sworn, the plaintiff should state, in 
 a concise manner, his cause of action, the facts which he expects 
 to prove, and, if he can anticipate it, the character of the de- 
 fence; so that the jury naay understand the nature of the action 
 which they are to try, and be enabled the better to appreciate 
 the testimony which may be offered. 
 
294 NEW YORK JUSTICE. 
 
 ■ Though the plaintiff usually begins the case, it is not alwajjfj 
 so^ foj', whichever party is to maintain the affirmative of the 
 issue, is entitjed to the opening statement. 
 
 (7.) Evidence. 
 
 This statement having been made, the plaintiff proceeds to 
 introduce the evidence on his part. We shall consider fully 
 hereafter {^post, part /., chap. XIII.) the subject of evidence, 
 and shall only mention here a few statutory provisions which 
 are specially applicable to evidence in Justices' Courts; and 
 which may more appropriately be mentioned in this place. 
 
 No ex parte affidavit of any person can be allowed or given 
 in evidence on any trial, either . with or without a jury, unless 
 the parties agree to allow the same. (2 R. 8. 244, § 105.) 
 
 A party in the suit, or having an interest iif the verdict, may 
 be a witness to prove the death, or absence beyond the reach 
 of a subpoena of the Justice, of a subscribing witness to, or the 
 loss of, any instrument, which shall come in question on the 
 trial, in order to introduce other proof of the execution or con- 
 tents of such instrument, {id. § 106.) 
 
 If a witness, on being produced, is objected to as incompetent, 
 such (Objection must be tried and determined by the Justice. 
 Evidence may be given in support of, or against such objection, 
 as in other cases; or the proposed witness may be examined on 
 oath by the party objecting, and if so examined, no other testi- 
 mony can be reoeived from either party, as to the competency 
 of such witness, {id. § 107.) 
 
 Upon the application of a party to a suit before any Justice 
 of the Peace, a writ of habeas corpus may be issued by any Jus- 
 tice of the Supreme Court, or any officer authorized to perform 
 the duties of such Justice, to bring any prisoner confined in tiie 
 jail of the same county, or the county next adjoining that where 
 such Justice of the Peace may reside, before him, to be examined 
 as a witness, {id. 559, § 4.) The application must be in writing, 
 verified by affidavit, and must state the title and nature of the 
 suit or proceeding in regard to which the testimony of such 
 prisoner is desired, and that the testimony of such prisoner is 
 material and necessary to such party on the trial or hearing of 
 such suit or proceeding, as he is advised by counsel, and verily 
 believes, {id. § 2.) Whenever any person is in Execution on 
 
SWEARING WITNESSES. 295 
 
 any, civil process, or committed on any criminal charge, and a 
 habeas corpus is issued to bring the body of such prisoner before 
 any Court to testify, or to answer for any contempt, or any other 
 matter, and it is returned upon the writ that the prisoner is 
 charged in the execution, or committed as aforesaid, he must be 
 remanded, after having testified; and, if any order or commit- 
 ment be made against such prisoner, he must be so committed 
 to the prison from which he was taken. (2 R. 8. 559, § 5.) ; 
 
 (8.) Swearing witnesses. 
 "The witnesses must be sworn by the Justice who tries the 
 cause. {Perry vs. Weyman, 1 Johns. 520.) 
 
 Every person offered as a witness, before any testimony be 
 given by him, must be duly sworn or affirmed, that the evidence 
 he shall give relating to the matter in difference between 
 
 , plaintiff, and , defendant, shall be the truth, 
 
 the whole truth, and nothing but the truth. (2 R. 8. 244, 
 V 108.) 
 
 The usual mode of administering oaths, by the person who 
 swears laying his hand upon and kissing the Gospels, must be 
 observed in all cases in which an oath is administered according 
 'to law, except in the cases otherwise provided, as hereafter men- 
 fioned. {id. 407, § 82.) 
 
 The following is the oath to be administered to a witness: 
 
 § 42. Oath of Witness^ upon the Gospels. 
 
 You do swear, that the evidence you shall give, relating to 
 this matter in difference between C D, plaintiff, and A B, de- 
 fendant, shall be the* truth, the whole truth, and nothing but 
 the truth. 
 
 Every person who desires it, must be permitted to swear in 
 the following form, and, while so swearing, such j)erson may 
 or may not hold up his hand, in his discretion, {id. § 83.) 
 
 § 43. The 8ame, not on the Gospels. ■ 
 
 You do sAvear, in the presence of the ever-living God, that, 
 (fee, [as in § 42, to the end.] • 
 
 Every person who declares that he has conscientious scruples 
 against taking any oatli, or swearing in any form, must be per- 
 mitted to make, his solemn declaration or affirmation in tjie foU 
 -Ipwipg.forni. («cZ. § 84.) 
 
296 NEW YORK JUSTICE. 
 
 ^ 44. Affirmation of Witness. 
 
 You do solemnly, sincerely and truly declare and affirm, thiat, 
 fflC, \as in \ 42, to the end i\ 
 
 Whenever the Court before which any person is offered as a 
 witliess, is satified that such person has any p'eculiar mode of 
 sweatiiig, connected with, or in addition to, the laying of his 
 hand upon the Gospels and kissing the same, which is more 
 solemn and obligatory in the opinion of such person, the Court 
 may, in its discretion, adopt such mode of swearing such per- 
 son. (2 R. 8. 407, § 85.) 
 
 Every person believing in any other than the Christian reli- 
 gion, must be sworn according to the peculiar ceremonies of his 
 religion, if there be any such ceremonies, instead of any of the 
 modes above prescribed, (id. 408, § 86.) 
 
 Some observations on the question of the exclusion of wit- 
 nesses on the ground of religious belief, will be found hereafter, 
 in the chapter on Evidence, under the head of Competency of 
 Witnesses. {Post, part I. chap. XIII. svbd. 14.) 
 
 The Court before whom an infant, or person apparently of 
 weak intellect, is produced as a witness, may examine such per- 
 son, to ascertain his capacity, and the extent of his religious and 
 other knoTyrledge; and the Court may also inquire of any person 
 what are the peculiar ceremonies observed by him in swearing, 
 which he deems most obligatory. (2 i?. /S. 408, § 89.) 
 
 In all cases in which an affidavit is required or authorizied 
 by law, the same may be taken in any of the forms above pre- 
 scribed, in the several cases above specified; and every person 
 swearing, affirming, or declaring, in any such form, or in any 
 form authorized by law, will be deemed to have been lawfully 
 sworn, and to be guilty of perjury for corruptly or falsely 
 swearing, affirming or declaring in any such form, in the same 
 manner as if he had sworn by laying his hand upon the Gos- 
 pels and kissing the same. {id. § 90.) 
 
 (9.) Punishment oj witnesses who refuse to testify. 
 
 When a witness attending before any Justice, in any cause,. 
 
 refuses to be sworn in any form prescribed by law, or to an- 
 
 airer any pertinent or proper question, and the party at whose 
 
 instance h6 attended tnakes oath, that the testimony of such 
 
WAERANT or COMMITMENT. 297 
 
 witness is so far material, that without it he cannot safely pro- 
 ceed in the trial of such cause, such Justice may by warrant 
 commit such witness to the jail of the county. (2 B. S. 274, § 279.) 
 Such warrant must specify the cause for which the same is 
 issued, and, if it be for refusing to answer any question, such 
 question must be specified therein; and such witness must be 
 doSely confined, pursuant to such warrant, until he submits to 
 be sworn or to answer, as the case may be. (2 B. S. 274, 
 ^ 280.) The Justice must thereupon adjourn such cause at the 
 request of the party in whose favor such witness attended, 
 from time to time, until such witness shall testify in the cause, 
 or be dead or insane, (id. § 281.) 
 
 To authorize a proceeding under these provisions, the witness 
 must, in all cases, be in actual attendance before the Justice; 
 and cannot be committed, except upon the oath of the party at 
 whose instance he attended, as to the materiality of his testi- 
 mony. 
 
 Before committiog a witness, the Justice should be satisfied 
 that he has been duly subpoenaed, for, if he has not been, he is 
 not bound to be sworn; but if he has been sworn, although not 
 snbpcetaaed, he is bound to testify. 
 
 ' The service of the subpoena may be proved by the return of 
 the constable, or the oath of the party, or of any other person, 
 iff the manner heretofore laid down (ante, p. 272), for making 
 the same proof to obtain an attachment against a witness. 
 
 ' The following is the form of oath to be administered to the 
 party in regard to the materiality of the witness's testimony: 
 
 you do swear that you will true answers make to such ques- 
 tions as may be put to you, touching the materiality of the tes- 
 timony of James Brown, as a witness in the action now on trial 
 before me, between John Doe, plaintiff, and Richard Roe, de- 
 fendant. 
 
 If it appears from the examination of the party, that the tes- 
 timony of the witness is so far material that without it the 
 party cannot safely proceed in the trial, and the witness refuses 
 to be sworn, or, if sworn, to answer any pertinent and proper 
 question, the Justice must then commit the witness to jail by a 
 warrant. 
 
298 NEW YORK JUSTICE. 
 
 § 45. Warrant of Commitment. 
 County, ? g. 
 Town of , ^ ' , i 
 
 The People of the State of New York, to any constable of 
 said county, and to the keeper of the jail of said county: 
 
 Whereas, in the trial of an action this day before me, G H; 
 a Justice of the Peace in and for said county, in which John 
 Doe was plaintiff, and Richard Eoe defendant, James Brow^, 
 then being present before me,* was proved to my satisfaction to 
 have been duly subpoenaed to attend as a witness before me on 
 said trial on the part of the said plaintiff, and whereas the 
 said James Brown refused to be sworn as such witness in any 
 form prescribed by law, [or, if the witness, after being sworn, 
 refuses to answer any pertinent and propfir questions, proceed as 
 above to the* and then add: having been duly sworn as a wit- 
 ness on the part of the plaintiff on such trial, refused to answer 
 the following question, which question was decided by me to be 
 pertinent and proper, viz: " Did you, on the day of , 
 
 1853, at , see the plaintiff pay the defendant twenty dol- 
 
 lars?"] and the said John Doe having made oath before me that 
 the testimony of the said James Brown was so far material that 
 without it he could not safely proceed in the trial of the said 
 action: Now, therefore, you, the said constable, are hereby 
 commanded to commit the said James Brown to the jail of the 
 county of , and you, the keeper of the said jail, are hereby 
 commanded to receive the said James Brown into your custody 
 in the said jail, and closely confine him there, pursuant to this 
 warrant, until he shall submit to be sworn as such witness, [or, 
 until he shall submit to answer the said question,] or shall -be 
 discharged according to due course of law. 
 
 Given under my hand, the day of , 1853. 
 
 G H, Justice of the Peac^ 
 
 (10.) Examination of Plaintiff's witnesses. 
 
 The plaintiff may • introduce such witnesses as he deems 
 necessary to establish his cause of action. After he has 
 interrogated them, the adverse party has a right to cross- 
 examine them. 
 
 Either party may object to the introduction of any evidence, 
 or to the putting of any question, which he thinks to be im- 
 proper. When an objection is made, the question is submitted 
 to the Justice, with or without argument, who must determine 
 whether the testimony offered is admissible, or whether the 
 question put is a proper one. 
 
NONSUIT. 299 
 
 The Justice should be careful neither to reject proper evi- 
 dence, nor to admit that which is improper, for either error may- 
 afford ground for reversing his judgment. The admission of 
 improper evidence may have an influence upon honest jurors, 
 who are unconscious of the impressions which they receive; and 
 although the Justice, on discovering his error, directs the jury 
 to disregard the evidence, yet that will not cure the irregular-- 
 ity. {P^enfleld vs. Qarp&iiter, 13 Johns. 350.) 
 
 When the plaintiff has concluded the introduction of his evi- 
 dence, he rests his cause. 
 
 (11.) Nonsuit. 
 
 If the plaintiff is satisfied that the evidence which he has 
 offered is insuflicient to sustain his action, he may withdraw his 
 suit, or submit to a nonsuit. If the cause is tried before a Jus- 
 tice without a jury, the plaifitiff may submit to a nonsuit, at any 
 time before or after the witnesses have been examined, and be- 
 fore the cause has been submitted to the Justice; but not after 
 the cause is under advisement, though before four days have 
 elapsed. (IG id. 363; Hess vs. Beekman, 11 id. 457.) If it is 
 tried by a jury, he may submit to a nonsuit at any time before 
 their verdict is announced by their foreman, {id. ; Piatt vs. 
 Storer, 5 id. 346.) And by failing to appear to hear thqir ver- 
 dict when they come in, he submits to a nonsuit. (2 R. 8. 246, 
 §119.) 
 
 And after the Justice has submitted the cause to the jury, he 
 cannot take it from them, and nonsuit the plaintiff. {Young vs. 
 Hvbbell, 3 Johns. 430.)' 
 
 When the cause is tried by the Justice, he may, after the 
 plaintiff has concluded his testimony, nonsuit the plaintiff, when, 
 in his opinion, the testimony does not sustain the action. (12 
 id' 229; Stuart vs. Simpson, 1 Wend, d76.) So, too, when the 
 cause is tried by a jury, the Justice may grant a nonsuit on the 
 application of the defendant, if, in his judgment, the plaintiff has 
 failed, upon his own showing, to make out his case, whether on 
 the ground of the incompetency, or of the insufficiency, of his 
 evidence. {Elwell vs. McQueen, 10 Wend. 519.) 
 ; , It is discretionary with the Justice to permit the plaintiff to 
 (Ofier additional testimony, after the defendant* has applied for 
 a nonsuit; but he may, in his discretion, grant the privilege to 
 
800 NEW YORK. JtrBTICE. 
 
 eithpr party, after the evidence has been closed. (Alexander 
 vs. Byron, 2 Johns. Oases, 318.) 
 
 1 A nonsuit should be granted only in a clear case; andihotigh 
 the proof to sustain the cause of action is only slight and doubfc 
 ful, yet it is the safer course for the Justice to permit it to gd 
 to the jury. • '' 
 
 If the Justice takes time to make up his judgment, he cannot 
 nonsuit the plaintiff; and even though he call it a nonsuit in his 
 docket, yet the judgment is final. (10 Wend. 520; 3 Hill, 237; 
 Peters vs. Diosay, 3 E. D. Smith, 115^) 
 
 (12.) Statement of the defence. 
 After the witnesses on the part of the plaijutiff Lave been 
 examined, if the defendant does not apply for a nonsuit, or if 
 he fails in his application, he should state his defence in a clear 
 and concise manner, and proceed to the examination of his wit- 
 nesses. 
 
 (13.) Examination cif defendant's witnesses. 
 The defendant's witnesses are to be examined in the same 
 manner as the witnesses on the part of the plaintiff, and may be 
 cross-eyamined by the plaintiff. After the defendant has intro- 
 duced all his evidence, the plaijijitiff may give evidence to rebut 
 it, or to impeach the defendant's witnesses. 
 
 (14.) Ainendment of ■pleadings. 
 
 During the progress of the trial, the parties may find it neces- 
 sary to amend their pleadings. The Code provides^ that the 
 pleadings may be amended at any time during the trial, when 
 by such amendment substantial justice will be promoted; «nd 
 thiat the Court may, also,, in its discretion, require as a condition 
 of an amendment the payment of costs to the adverse party. 
 {Code, § 64, subd. 11.) 
 
 Where the plaintiff claims an amount beyond the jurisdiction 
 of the Justice, the plaintiff may amend the complaint so as' to 
 bring the action within the jurisdiction of the Justice,, though 
 the defendant objects. {4: Den, blQ; see, also, Yager js. Ban.- 
 nah, 6 Hill, 631.) 
 
 For further observations on the subject of amendments, see 
 afUe, p. 218. 
 
BETIBING OF THE JtJUT. 301 
 
 (15.) Summing wp. 
 
 ^hen the evidence is closed, the parties, or their counsel, 
 may a,ddress the jury; the plaintiff usually, but the defendant 
 T^^eUj he holds the affimiatiTe, having the right to the closing 
 argument. f 
 
 The Justice may, if he chooses, charge the jury on questions of 
 law, but- he is not bound to do so; if, however, he does charge 
 them, and charges erroneously, advantage of the error can be 
 taken on appeal; (6 Hill, 326; Delancy vs. Nagle, 16 Barb. 
 96;) though not if it is obvious that his charge could not 
 materially have influenced the jury. {Smith vs. Kerr, 1 Barb. 
 155.) 
 
 Where the whole matter is left to the jury by the Justice, 
 without instruction, they are judges of the law as well as of 
 th^,fia£t; but in that case, if they judge wrong upon a point of 
 law, the error may be corrected on appeal. {Trustees of Penn 
 Yav. vs. Thome, 6 Hill, 326; 18 Barb. 327.) 
 
 (16.) Retiring of the jury. 
 After hearing the proofs and allegations, the jury must be 
 kept together in some convenient place, under the charge of a 
 constable, until* they all agree upon their verdict; and for that 
 purpose the Justice must administer to such constable the fol- 
 lowing oath: (2 R. 8. 244, § 109:) 
 
 You swear, in the presence of Almighty God, that you will, 
 to, the utmost of your ability, keep the persons sworn as jurors 
 On this trial, together, in some private and convenient place, 
 "Without any meat or drink, except such as shall be ordered by 
 toe; that you will not suffer any commimication, orally or other- 
 wise, to be liiade to them; that you will not communicate with 
 them yourself, orally or otherwise, unless by my order, or to 
 ask them whether they have agreed on their verdict, until they 
 shall ,be discharged; and that you will not, before they render 
 their verdict, Communicate to any person the state of their de- 
 liberations, or the verdict they have agreed on. 
 
 Where the jury do not retire to consider their verdict, it is 
 
 unnecessary that a constable be sworn to attend them. (8 Johns. 
 
 437; Douglass vs. Blackman, 14 Barb. 381.) 
 
 ' -A consta(ble must be sworn to attend the jury, if they retire, 
 
 and it is a fatal objection, on appeal, if the return does not 
 
802 NEW TOBK JUSTICE. 
 
 show that a constable was sworn, (2 Ocdnes, 221;vll Johnsi 
 442; Ooughner vs. Easterbrooh, id. 532.) The administration 
 of an erroneous oath to the constable is alike fatal. (2 CcCinex^ 
 134; Herrich vs. Bedford, 3 id. 140.) 
 
 A Justice has no right, during thie trial, tq permit the parties 
 to treat the jury witl liquor; (15 Johns. 455; Rose vs. Smith, 
 •4 Cow. 17;) but where the jury drank liquor during the sus-, 
 pension of the trial, but not to excess, and the liquor was hot 
 furnished by one party more than the other, it was held to be 
 no giuise for reversing the judgment. (Dennison vs. OoIUtis, 
 1 Cow. 111.) And if the parties consent that the jury may 
 retire without a constable to attend them, they waive any 
 irregularity of the jury in drinking liquor, and in admitting 
 other persons into the room while deliberating on their verdict. 
 (Tower vs. Hewitt, 11 Johns. 134.) 
 
 It was formerly held that, if a juror drank even a trifling 
 quantity of liquor, the judgment should be set aside. {Brarvt 
 vs. Fowler, 7 Cow. 562.) But this principle has been overmled, 
 and it is now held, that the mere fact of drinking spirituous 
 liquors by a juror, during the progress of a trial, is not per se \ 
 sufficient to set aside the verdict, but there must be some reason 
 to suspect that the drinking had some influence on the final 
 result of the cause. If a juror should become incapacitated on 
 account of intoxication, the verdict would be set aside. ^(Wil- 
 son vs. Arams, 1 Hill, 207.) 
 
 If a juror leave his seat for a short time, without the know- 
 ledge of the Court or parties, but no testimony is given during 
 his absence, and he holds Gommunicp,tion with no one on the , 
 subject of the cause, though this be a contempt of pourt, yet 
 it will not avoid the verdict. (Ex -parte Hill, 3 Cow. 355.) ^ 
 
 Mr. Justice Cowen, in a note to the case of Smith vs. Thomp- 
 son, [id. 221,) has collected a great variety of English' and 
 American cases, in relation to the conduct of jurors, and the 
 necessity of their being kept together, and entirely separate 
 from all other persons. 
 
 A Justice has no right to go into the jury-room while the 
 jury are deliberating, and give them instructions, without the 
 express consent of the parties. (Moody vs. Pomeroy, 4 Den. 
 115; 13 Johns. 487; 7 id. 200.) 
 
 The jury have no right to take into their possession the 
 
KECEIVING THE VERDICT. 303 
 
 minutes of one of the counsel, without the consent of both 
 parties; and in a case where they had the minutes of the suc- 
 cessful party, the judgment was reversed. {Durfee vs. Eveland, 
 8 Barb. 46.) But if the Justice goes into the jury-room at the 
 request of the jury, and with the knowledge and consent of the 
 defendant, his consent that the Justice may read the testimony, 
 will be implied. {Hancock vs. Salmon, id. 564.) 
 
 It is erroneous for the Justice to enter the jury-room, and 
 explain the testimony of a witness on a point of fact, without 
 consent; {Bunn vs. Oroul, 10 Johns. 239;) or to give his piin- 
 utes of evidence to the jury, without consent. (Niel vs. Ahel, 
 24 Wend. 185.) But, after the jury have retired to consider 
 their verdict, the Justice may, if the parties are present, give 
 the jury further instructions as to the law of the case. {Rogers 
 vs. Moulthrop, 13 Wend. 274.) 
 
 It was held not to be error where the jury sent for the Jus- 
 tice, and asked him if they could add any thing to the demand 
 of the plaintiff, and he answered " no," and immediately 
 retired. {Thayer vs. Van Vliet, 5 John^. 111.) But it is 
 erroneous for the Justice, after the jury have retired, and in the 
 absence of the parties, to answer their inquiry as to whether a 
 cei-tain fact has been given in evidence. (10 id. 239, supra.) 
 
 Whei;;e the jury came into Court, and requested the Justice to 
 read over the testimony of a witness, which he did, but, owing to 
 his not having taken down all that the witness said, a part of it, 
 only relating remotely to the merits, was not mentioned to the 
 jury, it was held that, as neither party at the time had called 
 the Justice's attention to the omission, it was not a ground for 
 reversing the judgment, especially as there was no fe'^oato 
 suppose, that the omission was intentional. ( Whitney vs. Crim, 
 IMill, 61.) 
 
 After a jury have retired to consider their verdict, they may 
 come back into Court, and hear evidence as to any matter 
 about which they have doubt, if both parties are present, and 
 neither objects. {Henlon vs. Leonard, 7 Johns. 32.) 
 
 In Keeler vs. Lochwood, {Hill & D. 8upp. 137,) after the 
 jury in a Justice's Court had retired, they sent for the Justice; 
 he notified the ' parties, expecting them . to follow him, and 
 went into the jury-room alone, when the jury informed him that 
 they could not agiee, and that they wished further instructions. 
 
304 NEW TOEK JUSTICE. 
 
 The Justice,, on discovering that the parties had not followed 
 him, declined giving imstructions, advising the jury to mafce 
 another effort to agree, and then retired and informed the parties 
 what the jury had said. They all then returned to the jury- 
 room, where it was agreed that the jury might examine wit- 
 nesses further, which they did without objection. It was held 
 that there was no irregularity. 
 
 (17.) Receiving the verdict. 
 
 When the jurors have agreed on their verdict, they must' 
 deliver the same to the Justice, publicly, who must enter it in 
 his docket. Previous to receiving it, the Justice must call ths 
 plaintiff. If he is absent, and no one appears for him, the ver- 
 dict cannot be received. (2 R. S. 224, \ 110.) 
 
 It is proper for the Justice, when the jury return to render 
 their verdict, to call <?ver the names of the jurors, that he may 
 know whether they are all present, and then to inquire whether 
 they have agreed upon their verdict. 
 
 Whenever a Justice is satisfied that a jury sworn in any cause 
 before him cannot agree on their verdict, after having been out 
 a reasonable time, he may discharge them, and mustthen issue 
 a new venire^ returnable within forty-eight-hom's, unless the 
 parties consent that the Justice may render judgment on the 
 evidence already before him; which, in such cases, he may do. 
 (2 R. S. 245, § 111.) It is held that the provision of the stat- 
 ute prescribing the time within which a venire for a second jury 
 shall be made returnable is designed for the convenien<te of 
 parties; and compliance with it may be waived by their con- 
 senting that the process be returnable at a later period. (20 
 Barb. 275; Embury vs. Connor, 3 Cow. 511.) What is a rea- 
 sonable time to keep th^ jury together depends upon circum- 
 stanceSi and must be left to the sound discretion of the Justice. 
 The Justice should keep the jury together as long as there is 
 a reasonable probability that they will agree; but they should 
 not be kept out so long as to coerce an agreement by exhausticm j 
 or otherwise. 
 
 The Justice may send a jury back to reconsider their verdict 
 before it is recorded, if there is a mistake. {Blackleif vs. 8hdr 
 don, 7 Johns. 32.) 
 
 If the jury state that they have agreed upon their verdict, 
 
RECEIVING THE VERDICT. 305 
 
 tihe Justiee must call the plaintiff as directed by the statute. It 
 isiabsolutefly necessary that the plaintiff or his attorney be actti- 
 ally. present when the verdict is rendered, for he has a right to 
 submit to a nonsuit before it is rendered, (2 R. 8. 246, § 119,) 
 and. his absence is prima facie evidence of his desire to do' so. 
 
 It is, however, sufficient if he be actually present when his 
 name is called, though he does not answer, unless he expresses 
 a design not to answer, or immediately withdraws, in which case 
 the Justice should enter judgment of nonsuit for want of the 
 plaintiff's appearance. {Oakley vs. Van Horn,, 21 Wend. 305.) 
 . Unless the Justice states, in his return on appeal, that the 
 plaintiff was called and' answered, or that he- was actually pres^ 
 ent, the judgment will be reversed; and where the Justice 
 returned that, on calling the plaintiff, " some person to me not 
 known answered to the name of the plaintiff,'' it was held to 
 be irregular, because the Justice was bound to see that the 
 plaintiff appeared in person, or by some one duly authorized. 
 {8hove vs. Raynor, 1 Den. 11.) 
 
 • No Coiua-t can be opened, or transact any business on Sunday, 
 unless it be.for the purpose of receiving a verdict or discharging 
 a jury; and every adjournment of a Goui-t on Saturday to an- 
 other day, must always" be to some other day than Sunday, ex- 
 cept such adjournment as may be made after a cause has been 
 committed to a jury. (2 R. S. 274, \ 7.) It is proper, therefore, 
 to receive a verdict, or to discharge a jury on Sunday, where* 
 the cause has been committed to the jury before that day; 1 )ut' 
 is irregular for a justice to enter a judgment on that day. 
 {Hoghtaling vs. Osborn, 15 Johns. 119.) No part of a trial can 
 be had on Sunday, except what is specially allowed by the 
 statute; and where a cause was submitted to a jury at two 
 o'clock on Sunday morning, and a verdict was rendered iit three 
 o'clock, the judgment was reversed. (2 Sdndf. 131; Pulling 
 YS:. People, 8 Bhrb. 384.) ' ' ' 
 
 ^ The verdict is not valid and final, until it is pronounced and 
 recorded in open Court; and before that time the jury may cor- 
 rect a verdict in regard to which they have made a mistake, or 
 about which, upon further reflection, they have doubt. (6 
 Johns. &^] BlacMey vs. Sheldon, 1 id. 32.) 
 
 The verdict may be delivered orally or in writing; and in 
 either case, each party hals the right to poll the jury, that is, 
 20 
 
306 NEW YORK JUSTICE. 
 
 each juror may be asked if the verdict rendered is his verdict, 
 Bind if every juror does not express his assent to the verdict, 
 the Justice has no right to enter it, for there is no agreement 
 of the jury. (7 Johfis. 32, supra.) 
 
 A verdict for more damages than the defendant claims in his 
 plea of set-off will not be set aside, where the plaintiff makes no 
 objection to the set-off at the trial, but suffers it to go to the 
 jury. ( Wilson vs. Larmouth, 3 id. 433.) If the jury find a ver- 
 dict of damages for the defendant, in a case in which he is not 
 entitled to damages, the Justice may remit the damages and give 
 judgment for the defendant generally. {Burger vs. Kortright, 
 4 Johns. 414.) A verdict for the defendant for six cents 
 damages and six cents costs, will be considered as a general 
 verdict for the defendant, and the damages and costs will be 
 rejected. {Goodenow vs. Travis, 3 id. 427.) A verdict of no 
 cause of action, is substantially a verdict for the defendant, and 
 the; Justice: must enter judgment accordingly. {Felter vs. Mil- 
 liner, 2 Johns. 181.) 
 
 If a verdict is rendered in favor of the plaintiff for an amotmt 
 exceeding the jurisdiction of the Justice, the plaintiff may remit 
 the excess. (3 Z)eM..319; Barber vs. Rose, 5 Hill, 76.) 
 
 » 
 (18.) Variance. 
 
 A variance between the proof on the trial, and the allegations 
 in a pleading, must be disregarded as immaterial, unless the 
 Court is, satisfied that the adverse party has been misled to his 
 prejudice thereby. (Code, § 64, subd. 10.) 
 
 After taking time, a Justice cannot give judgment forava- 
 riance,~where the objection was not taken at the trial. {Shall 
 vs. Lathrop, 3 Hill, 237.) 
 
 (19.) Contempts of Court. t, 
 
 This subject will be fully treated of hereafter in Part II. of 
 this work, Chaijter I. 
 
EVIDENCE. 307 
 
 CHAPTER XIII. 
 
 OF EVIDENCE. 
 1. The Nature and Principles op Evidence. 
 
 The word evidence, in legal acceptation, includes all the 
 means ,by which any alleged matter of" fact, the truth of which 
 is. submitted to investigation, is established or disproved. This 
 ■ term, and the word "proof, are often used indifferently, as 
 synonymous with each other, but the latter is applied by the 
 most accurate logicians, to the dfect of evidence, and not to the 
 medium, by which truth is established. None but mathematical 
 truth is susceptible of that high degree of evidence, called 
 demonstration, which excludes all possibility of error, and which, 
 therefore, may reasonably be required in support of every 
 mathematical deduction. Matters of fact are proved by moral 
 evidence alone; by which is meant, not only that kind of evi- 
 dence which is employed on subjects connected with moral con- 
 duct, but all the evidence which is not obtained either from 
 intuition, or from demonstration. In the ordinary affairs of life, 
 we do not require demonstrative evidence, because it is not 
 consistent with the nature of the subject, and to insist upon it 
 would be unreasonable and absurd. The mbst that can be 
 affirmed of such matters is, that there is no reasonable doubt 
 concerning them. The true question, therefore, iu trials of 
 issues of fact, is not, whether it is possible that the testimony 
 may be false, but whether there is sufficient probability of its 
 truth; that is, whether the facts are shovm by competent and 
 satisfactory evidence. Things established by competent and 
 satisfactory evidence are said to be proved. (1 Oreen. on Ev. 
 ^ 1; Wills on Cir. Ev. 2.) 
 
 By competent evidence is meant that which the very nature 
 of the thing to be proved requires as the fit and appropriate 
 proof in the particular case, such as the production of a writing, 
 when its contents are the subject of inquiry. By satisfactory 
 evidence, which is sometimes called mffident evidence, is 
 
3)08 NEW YORK JUSTICE. 
 
 intended that amount of prpof which ordinarily satisfies an 
 unprejudiced mind beyond reasonable doubt. The circumstan- 
 ces which will amount to this degree of proof can never be 
 previously defined. -The only legal test, of whi^jh they are sus- 
 ceptible, is their sufficiency to satisfy the mind and conscience 
 of a common man, and so to convince him, that he would 
 venture to act upon that conviction in matters of the highest 
 concern and importance to his own interest. Questions respect- 
 ing the competency and admissibility of evidence are entirely 
 distibct^from those which respect its sufficiency or effect; the 
 former being exclusively within the province of the Court; the 
 latter belonging exclusively to the jury. Cumulative evidence, 
 is evidence of the same kind, to the same point. Thus, if a 
 fact ' is attempted to be proved by the verbal admission of a 
 party, evidence of another verbal admission of the same fact is 
 cumulative; but evidence of other circumstances, tending to 
 establish the fact, is not. {l/xreen. on Ev. \ 2.) 
 
 2. Things Judicially Taken Notice of Without Peoof. 
 
 The public Seal of a State, affixed to the exemplification of a 
 law or judicial proceeding, proves itself; it is a matter of noto- 
 riety, and will be taken notice of as a part of the law of nations 
 acknowledged by all. {Lincoln vs. Battelle^ 6 Wend. 475.) 
 It is not necessary to verify it, for it imports absolute verity; 
 and, until the contrary appears, the presumption is that it w^ 
 affixed by the proper officer. At the conunon law, a seal is an 
 impression upon wax, wafer or some other tenacious substance. 
 In this State, an impression upon paper alone is not regarded as 
 a sealj except where it has been declared so by express statute.; 
 (2^»W, 227; did. 493; Ooit vs. Millihin, 1 Dm. 376;) nor is 
 a scroll a seal in this State. But, in a recent case in the Supreme 
 Court of the United States, where a deed executed in Wiscon- 
 sin, and attested by the seal of a Court, stamped upon the 
 paper, instead of upon wax or a wafer, was admitted in evidence 
 upon a trial in Arkansas, it was held, that the seal was good 
 and/ sufficient as a common law seal. (13 How. U. 8. 472.) 
 
 The law of nations, the general customs and usages of mer 
 chants, and the public statutes and general laws of their own 
 country, as well ecclesiastical as civil, are recognized, without 
 proof, by the Courts of all civilized nations. (3 Wheat. 610, 
 
THE VARIOUS KINDS OF EVIDENCE. 309 
 
 634.) The seal of a notary public is also judicially tkken notice 
 of by the Courts, he being an officer recognized by the whole 
 commercial world./ (Ghanoine vs. Fowler^ 3 Wend. 173.) But 
 the law under which he acts should be proved. Nor is it neces- 
 sary to prove things which must have happened according to 
 the ordinary course of nature, nor the coincidence of days of 
 the week with days of the month, nor the legal weights and 
 measures, nor any matters of public history affecting the whole 
 people, nor public matters affectipg the government of the 
 country. Courts also take notice of the .territorial extent of 
 the jurisdiction and sovereignty exercised by their own country, 
 and of the civil divisions of the country into States, counties 
 and towils, but not of their precise boundaries, farther than 
 they may be described in public statutes. (5 Wend. 530; Bron- 
 son vs. Gleason, 7 Barb. 472.) Notice is taken, by all tribu- 
 ' nals, of the accession of the Chief Executive of the nation or 
 State under whose authority they act, his powers and privileges, 
 and the genuineness of his signature; of the heads of depart- 
 ments, and principal officers of State; of the public seals; of 
 the election or resignation of a senator of the United States; 
 of the appointment of a cabinet or foreign minister; of the ap- 
 pointment of marshals and sheriffis, and the genuineness of their 
 signatures. (1 Green, on Ev. \ 6.) Courts take judicial notice 
 of the Constitution , of the United States, and of the acts of 
 Congress in pursuance thereof ; {Jack vs. Martin, 12 Wend. 311; 
 S. Q. 14 id. 507;) but they do not take judicial notice of any 
 of the laws of our sister States which are at variance with the 
 common law. {Holmes vs. Broughton, 10 Wend. 75,) or of the 
 ordinances of a municipal corporation. {Herker vs. Mayor of 
 M Y. 17 id. 199.) Nor although a fact not judicially cogniz- 
 able is known to the members of the Court individually, does 
 this dispense with the necessity of proof upon the fecord. 
 {Wheeler vs. Webster, 1 JS. D. Smith's, 1.) 
 
 3. The Various Kinds OF Evidence. 
 
 Truth is either abstract and necessary, or probable and con- 
 tmgent; and each of these kinds of truth is discoverable by 
 appropriate, but necessarily different, kinds of evidence. This 
 classification, however, i^ not founded on any essential differ- 
 ejnce in the nature of truths themselves, and ha3 refei'ence. 
 
310 NEW YOKE JUSTICE. 
 
 merely to our imperfect capacity and ability of perceiving 
 them. In many instances, the correspondence of our ideas 
 with realities is perceived instantaneously, in which case the 
 judgment is said to be intuitive. But innumerable truths, the 
 knowledge of which is indispensable to happiness, if not to 
 existence, depend upon evidence of a totally different kind, 
 arid admit of no other guide than our own consciousness, or 
 the testimony of our fellow-men. {Wills on 'Gireumstanticcl 
 Evidence, 4.) 
 
 1 In investigations of every kind, it is essential that a correct 
 estimate be made of the kind and degree of assurance of which 
 the subject admits. Unlike the assent which is the inevitable 
 result of mathematical reasoning, belief in the truth of events 
 may be of various degrees, from moral certainty, the liighest, 
 to that of mere probability, the lowest. The general meaning 
 of the word probability is likeness or similarity to some othei' 
 truth, event or thing. Sometimes that word is used to express 
 the preponderance of the evidence or arguments in favor of 
 the existence of a particular event or truth, or adverse to it. 
 (id. 7, 8.) The degree of excellence and of strength to which 
 testimony may rise seems almost indefinite. There is hardly 
 any cogency which it is not capable, by possible supposition, 
 of attaining. The endless multiplication of witnesses, the un- 
 bounded variety, of their habits of thinkiiig, their prejudices, 
 and their interests, afford the means of conceiving the force of 
 their testimony augmented ad infinitum, because these circum- 
 stances afford the means of diminishing indefinitely the chances 
 of their being all mistaken, all misled, or all combining to 
 deceive, {id. 10.) 
 
 The results oi experience are expressly or impliedly assumed 
 as the standard of credibility in all questions dependent upon 
 moral evidence. By means of the senses, and of our own con- 
 sciousness, we become acquainted with external nature, and with 
 the characteristics and properties of physical things and moral 
 beings, which are then made the subject of memory, reflection . 
 and other intellectual operations; and ultimately, the inferences 
 and observations to which they lead are reduced to general 
 principles, and become the basis and standard of comparison 
 in similar circumstances. The ground-work of our reasoning 
 is our confidence in the permanence of tibe order of nature, and 
 
PRESUMPTIVE EVIDENCE. 311 
 
 in the existence of moral causes, which operate with an unvary- 
 ing uniformity, not inferior to, and perhaps surpassing even, 
 thei stability of physical laws. {Wills on Cir. Uv. 16.) 
 
 Experience comprehends, not merely the facts and deduc- 
 tions of personal observation, but the observations of mankind 
 at large, in every age and country. It would be absurd to dis- 
 believe and reject as incredible the relations of events, because 
 such events have not occurred within the range of individual 
 experience. We may remember the unreasonable incredulity 
 of the king of Siam, who, when the Dutch ambassador told 
 him that in his country the water in cold weather became so 
 liard that men walked upon it, and that it would even bear an 
 elephant, replied: " Hitherto I have believed the strange things 
 you have told me, because I looked upon you as a sober man, 
 but now I am sure you lie." {id. 15.) By expenence, we are 
 led to refer facts or events of the same character to causes of 
 the same kind.. By analogy, facts and events similar in some, 
 but not in all of their particulars, to other facts and occur- 
 rences, are concluded to have been produced by a similar 
 cause. So that analogy vastly exceeds in its range the limits 
 of experience, {id. 11.) An enlightened knowledge of human 
 nature often enables us, on the foundation of apparently slight 
 circumstances, to follow the tortuous windings of crime, and 
 ultimately to discover its guilty author, as infallibly as the 
 hunter is conducted by the track to his game. {id. 19.) 
 
 4'. Peesumptive Evidence. 
 
 .The term, presumptive is frequently used as synonymous with 
 circumstantial evidence; but it is not so used with strict accu- 
 racy. Presumption imports an inference from facts. Circum- 
 stances generally, but not necessarily, lead to particular infer- 
 ences. For the facts may be indisputable, and yet their relation 
 to the principal fact may be only apparent and not real; and 
 even when the connection^ is real, the deduction may be erro- 
 neous. Circumstantial and presumptive evidence therefore dif- 
 fer. The force and effect of the former depend upon its incom- 
 patibility with, and incapability of, explanation or solution upon 
 any, other supposition than that of the truth of the fact which 
 it is adduced to prove, {id. 25, 26.) 
 r A pr^mmption i.s a probable cpnsequetice, drawn from facts, 
 
, ,«# .--,,., 
 
 312 NEW YORK JUSTICE. 
 
 (either certain, or proved' by direct testimony,) by which may 
 be determine^ the truth of a fact alleged, but of which there is 
 no direct proof. A wounded and bleeding body is discovered^ 
 it has been plundered; wide and deep foot-marks are found in 
 a direction proceeding from the body; or a person is seen run- 
 ning from the spot. In the one case are observed marks of 
 flight; in- the other is seen the fugitive; and we know thatguilt 
 naturally endeavors to escape detection. These circumstances, 
 therefore, induce the presumption that crime has been conmiitted, 
 Md the presumption is a conclusion or consequence from the 
 circumstances. Of presumptions afibrded by moral phenomena, 
 a memorable instance is recorded in the judgment of Solomon, 
 whose knowledge of the all powerful force of maternal love 
 supplied him with an infalliblfe criterion of truth. (^Wills Gir. 
 Ev. 26, 27.) . . 
 
 Presumptions of every kind, to be just, must be dictated by 
 nature and reason. It is impossible to lay down arbitrary rules 
 of' 'presumption, as every case must of necessity be connected 
 with peculiarities of circumstances, which cannot be reduced to 
 any fixed principle. In criminal jurisprudence, no arbitrary 
 presumptions should ever- be admitted. Itnvouid be as unrea- 
 sonable to subject human actions to unbending rules of presump- 
 tion, as to prescribe to the commander of a ship inflexible rules 
 for his conduct, jrithout giving him any discretionin the unfore- 
 seen and innumerable accidents and contingencies of the tempest 
 and the ocean, {id. 28, 31.) " 
 
 Presumptive evidence is generally divided into two branches, 
 liwnely'presiimptwm of law, and presumptions of fact. Presump- 
 tions of law consist of those rules, which in certain cases either 
 forbid or dispense with any ulterior inquii-y . They are founded, 
 either upon the first principles of justice; or the laws of nature; 
 or the experienced course of human conduct and affairs, and the 
 connection usually found to exist between certain things. The 
 gehieral ■ doctrines of presumptive evidence are not therefore 
 peculiar to municipal law, but are shared by it in common with 
 other departments of science. Thus, the presumption of a mali- 
 cious intent to kill, from the deliberate use of a deadly weapon, 
 and the presumption of aquatic habits in an animal found with 
 webbed feet, belong to the same philosophy, differing only in 
 the' instance, and not in the principle of its application. Th6 
 
PRESUMPTIVE EVIDENCE. 313. 
 
 one; fact being sproved or ascertained, the other, its uniform con- 
 comitant, is universally and safely presumed. (1 Oreenl. on 
 Evi. § 14.) 
 
 : Presumptions, again, are conclusive and disputaiie. Conclu- 
 sive presumptions are rules determining the quantity of evidence 
 requisite for the support of any particular averment, which is 
 not permitted to be overcome by any fact that the proof is other- 
 wise. They have been adopted by common consent, from mo- 
 l^ives of public policy, for the sake of greater certainty, and for 
 the promotion of peace and quiet in the community; and there- 
 fore all corroborating evidence is dispensed with, and all oppos- 
 ing evidence is forbidden. Sometimes this common consent is 
 expressly declared by statute. By the statute of limitations, a 
 debt founded on simple contract, which has not been recognized 
 within six years as a subsisting obligation, cannot be recovered, 
 for it is conclusively presumed to have been paid. In other 
 cases, the common consent by which conclusive presumptions 
 are established, is declared -by the common law. Thus, the un- 
 interrupted enjoyment of an incorporeal hereditament, for a 
 period beyond the memory of man, is held to furnish a conclu- 
 sive presumption of a prior grant of that which has been so en- 
 joyed, (id. \: 14-18.) Twenty years' exclusive enjoyment of 
 the water of a stream in any particular manner, affords a con- 
 clusive presumption of title by grant or statute; but if the party 
 has, within the twentj' years, increased the height of the dam, 
 the presumption does aot apply to the increased height. {Bald- 
 win vs. Calkins,' 10 Wend. 167.) It is not necessary that the 
 water should haive been used in the same precise manner during 
 the twenty years, provided the mode of using it has not been 
 materially varied to the prejudice of others. (3 Paige, 577; 
 Smith vs, Adams, 6 id. 435.) A sane man is conclusively pre- 
 sumed to contemplate the natural and probable consequences of 
 his own acts; and therefore the intent to murder is conclusively 
 inferred from the deliberate use of a deadly weapon. (1 Hus- 
 sell on Onmes, 558.) When husband and wife petish together 
 at sea, it is presumed that the husband survives the wife, in 
 the absence of any evidence to justify a different conclusion; 
 but when mother and daughter perish by the same disaster, 
 and there is no evidence of survivorship, there is no legal 
 presumption that the daughter survives the mother. {Mo^ 
 
314. NEW TOBK JtrSTiCBt ' 
 
 ring vs. Mitchell, 1 Barb. Ch. 264.) There is no legal pre- 
 sumption that a child was born alive, and a person claiming 
 from it by descent, is bound to prove the fact. {3{ar86lUs vs* 
 Tkalhimer, 2 Paige. 35.) The existence of a person, a personal 
 relation, or a state of things, being proved, the law presumes 
 its continuance till the contrary is shown, or until a different 
 presumption is raised from the nature of the subject in question; 
 and this principle is applicable, within reasonable limits, to the 
 character of a witness proved to have once sustained a bad repu- 
 tation for truth and veracity. {^Sleeper vs. Van MiddleswortA, 
 4 Den. 431.) The identity of parties is always presumed from 
 the identity of names, but it may be repelled by proof. (Ja&k- 
 son vs. JTinff, 5 Cow. 237.) 
 
 The presumption in favor of a legal performance of duty by 
 public officers is very strong. (9 id. 94; 12 Wend. 145; Dota- 
 ning vs. Rugar, 21 id. 178.) This presumption applies in favor 
 of the regularity of proceedings before a Justice, on a review 
 of them upon appeal. {Stafford vs. Williams, 4 Den. 182.) 
 But the presumption in favor of the . .performance of official 
 duty, does not apply to the doing of a vital jurisdictional act. 
 If, however, the doing of the act be proved, the law will jjre- 
 sume that it was done at the proper time, if the proof is; such 
 that it may have been so done. (7 Barb. 39; Burbank vs. 
 Beach, 15 Barb. 326.) The general rule is, that where a per- 
 son is boimd to do a certain act, the omission of which would 
 be a culpable neglect of duty, the performance of it will be 
 presumexl until the contrary is proved. {Hartwell vs. Boot, 
 19 Johns. Mb.) The law presumes against the slightest vio- 
 lations of duty, in the business and other relations of private 
 life; and we inust presume against a notorious act of immoral- 
 ity, almost as strongly as we would against the commission of 
 a legal crime. (Starr vs. Peck, 1 Hill, 270.) 
 
 Where a party has a legal right to enter into possession of 
 land in one character, or under one title, the law will presume 
 that he enters in that character, and under that title, and not in 
 the character of a mere trespasser. (Benson vs. Bolles, 8 Wendi 
 175.) Upon a common law question, the law of a sister State 
 is presumed to b0 similar to our own; {Holmes vs. Brovghton, 
 10 id. 75;) and in the absence of proof to the contrary, the 
 common law as to the contract of marriage, is presumed to ba 
 
 \ \ 
 
PRESUMPTIVE EVIDENCE. 315 
 
 lawi of a sister State, i^^tarr vs. Peck, 1 Hill, 270.) So, also, 
 our Courts, in the absence of evidence to the contrary, assume 
 that the law regulating interest in other States is similar to our 
 own. (2 id. 201; 1 Paige, 220; Robinson \a. Duerchy, 3 Barb. 
 20.) In the absence of the husband, the wife is presumed to 
 have a general authority to exercise the usvial and ordinaiy con- 
 trol over his property, which must be possessed by some one, 
 unless it be expressly shown that the husband has constituted 
 some other person his agent. {Church vs. Sanders, 10 Wend. 
 79.) Where stock is transferred by the holder, and there is no 
 evidence that such holder did not receive payment for the stock 
 transferred, the legal presumption is that he did receive such 
 payment. {Spencer \s. Spencer, 11 Paige, 299.) And, if one 
 delivers a sum of money to another, and there is nothing to 
 explain the transaction, the presumption always is, that the 
 money belonged to the person who received it, and not that he 
 thereby became a debtor to the other. {Bogert vs. Morse, 1 
 Corns. 377.) A receipt for rent accruing at a subsequent pe- 
 riod, is presumptive evidence that all rent previously accruing 
 had been paid. {Decker vs. Livingston, 15 Johns. 479.) And, 
 where A sued B's executors for board furnished B, and the 
 executors proved that A gave to B his promissory note some 
 three years after the board accrued, it was held, that the giving 
 of the note was presumptive evidence of a settlement for the 
 board, and that A could not recover without proving that the 
 note was given for a distinct consideration. {De Freest vs. 
 Bloomingdale, 5 Den. 304.) Where a mortgagee has never en- 
 tered into possession of the mortgaged premises, and no de- 
 mand has been made or interest paid for twenty years, the 
 mortgage is presumed to have been satisfied. {Jackson vs. 
 Wood, 12 Johns. 242.) 
 
 If a litigant is pressed by circumstantial evidence, and it ap 
 pears that, if its pressure be unjust, he has it in his power to 
 produce evidence to explain it, and he omits to produce it, his 
 omission affords a strong presumption against him. But the 
 presumption does not arise from an omission to produce those 
 who might by possibility have knowledge on the subject, but 
 those only who are proved to have been so circumstanced as to 
 warrant the conclusion that they must have such knowledge. 
 {PeopUvs. McWhorter, 4 Barb. 438.) 
 
316 NEW YORK JUSTICE. 
 
 Gouclusive presumptions are made in favor of judicial pro- 
 ceedings. Thus, *th'e records of a Court of Justice are presumed 
 to have been correctly made; a party to the record is presumed 
 to be interested in the suit; and, after verdict, it will be pre- 
 sumed that those facts, without proof of which the verdict could 
 not have been found, were proved, though they are not 'express- 
 ly and' distinctly alleged in the record, provided it contains 
 terms sufficiently general to comprehend them by fair and reason- 
 able intendment- The preslimptioh will also be made after 
 twenty years, in favor of every judicial tribunal acting within 
 its jurisdiction, that all persons concerned had due notice of its 
 proceedings. (1 Greenl. on Ev.' § 19.) The same principle 
 applies to the proof of the execution of ancient deeds and wills. 
 Wherie these instruments are more than thirty years oM, and are 
 unblemished by any alterations, they are said to prove them- 
 selves; the bare production of them is sufficient, the subscribing 
 witnesses being presumed to be dead. But it must appear that 
 the instrument comes from such custody, as to affi)rd a reason- 
 able presumption' in favor of its genuineness, and that it is 
 otherwise free from just grounds of suspicion; and in the case 
 of a bond for the payment of money, there must be some en- 
 dorsement of interest, or other mdrk of geiluineness, Avithin the 
 thirty years, to entitle it to be read. After thu-ty years' undis- 
 turbed possession of any property, real or personal, it is too 
 late to question the authority of an agent 'who undertook to 
 convey it, unless his authority was by matter of record, {id. 
 §21.) 
 
 In regard to recitals in deeds; the general rule is, that all par- 
 ties to a deed are bound by the recitals therein. (9 Wend. 209'j 
 Ohautauqua Go. Bk. vs. Risley, 4 Den. 480.) And a grantor 
 is, in general, estopped by his deed from denying that he had 
 title to the thing granted; but this does not apply to a grantor 
 acting officially, as a public agent or trustee. (2 Terrin, Rep. 
 171.) A covenant of warranty, also, estops the grantor from 
 setting up an after acquired title Against the grantee, for it is a 
 perpetually operating covenant. {Jackson ys." Matsdoif, 11 
 Johns. 97.) A tenant by indenture is not permitted to dfeny 
 the title of his lessor, while the relation thus created subsisfs. 
 It is of the essence of the contract under which he claims, that 
 the paramount ownership of the lessor shall- be acknowledged 
 
PRESDMPTIVE EVIDENCE, 317 
 
 during the continuance of the lease, and that possession shall be 
 surrendered at its expiration. (1 GomyrHs Digest, Estoppel, 
 A, 2.) 
 
 Conclusive presumptions of law are also niade in respect to 
 infants and married women. Thus, an infant under the age of 
 seven years, is conclusively presumed to be incapable of com- 
 mitting any felony, for want of discretion; and undfer fourteen, 
 a male infant is presumed incapable of committing a rape. A 
 fenaale under the age of ten years is presumed incapable of con- 
 senting to sexual intercourse. If a wife act in company with her 
 husband, in the commission of a felony, other than treason or 
 homicide, it is conclusively presumed that she acted under his 
 coercion, and consequently wifhout any guilty intent. [Gfreenl. 
 on m. \ 28.) 
 
 It is provided by statute, that if any person, upon whose life 
 any estate in lands or tenements shall depend, shall remain be- 
 yond sea, or shall absent himself, in this State or elsewhere, for 
 seven years together, such person shall be accounted naturally 
 dead, in any action concerning such lands or tenements in which 
 his death shall come in question, unless sufficient proof be made 
 in such case, of the life of such person, (1 R. 8. 749, ^ 6.) It 
 is also provided, that if any person whose husband or wife shall 
 have absented himself or herself for the space of five successive 
 years, without being known to such person to be living during 
 that time, shall marry during the life-time of such absent hus- 
 band or wife, the marriage shall be void only from the time that 
 its nullity shall be pronounced by a Court of competent author- 
 ity. (2 id. 139, § 6.) One who is absent seven years without 
 being heard from, is presumed to be dead; but he is presumed 
 to have lived throughout the seven years from the time he was 
 last heard of, and to have then died. (4 Wheai. 150; 1 Metcf. 
 204; see Eagle's Case, 3 Abb. 218.) 
 
 The presumption is, that a party continues to live, until some 
 evidence is offered to rebut it: but evidence that he has not been 
 heard of for seven yeai-s, rebuts this presumption. (11 iVew 
 Hampshire Rep. 191.) 
 
 Disputable presumptions, like conclusive presumptions, are 
 the result of the general experience of a connection betweeh cer- 
 tain facts or things, the one usually being found to be the com- 
 panion or the effect of the other. The connection, however, in 
 
318 NEW YORK JUSTICE. 
 
 this class, is neither so intimate, nor so universal, as to render 
 it expedient that it should be absolutely and imperatively pre- 
 sumed to exist in every case, and that all evidence to the con- 
 trary should be rejected; but yet it is so general, and so nearly 
 universal, that the law itself, without the aid of a Jury, infers 
 the one fact from the proved existence of the other, in the ab- 
 sence of all opposing evidence. In this mode, the law defines 
 the nature and amount of the evidence which it deems sufficient \ \ 
 to establish a jjnmayacie case, and to throw the burden of proof 
 on the other par^; and, if no opposing evidence is offeredj the 
 jury are bound to find in favor of the presumption. A contrary 
 verdict would be liable to be set aside, as being against evidence. 
 (1 Oreenl. on Ev. § 33.) ■ , 
 
 The rules in this class of presumptions do not forbid all 
 other evidence, but only excuse or dispense with it, till some 
 proof is given, on the other side, to rebut the presumption thus 
 raised. Thus, a^ men do not generally violate the penal code, 
 the law presumes every man innocent: but men do ti'ansgress 
 it, and therefore evidence is received to repei this presumption. 
 This legal presumption of innocence is to be regarded by the 
 jury, in every case, as matter of evidence, to the benefit of 
 which the party is entitled, i And, where a criminal charge is 
 to be proved by circumstantial evidence, the proof ought to be 
 not only consistent with the prisoner's guilt, but inconsisteart 
 with any other rational conclusion. On the other hand, as men 
 seldom do unlawful acts with innocent intentions, the law pre- 
 sumes every act, in itself unlawful, to have been criminally 
 intended, until the contrary appears. Thus, on a change of 
 murder, malice is presumed from the fact of killing, unaccom- 
 panied with circumstances of extenuation; and the burden of 
 disproving the malice i^ thrown upon the accused, {id. ^ 34.) 
 
 A sane man, a voluntary agent, acting upon motives, must be 
 presumed to contemplate and intend the necessary, natural and 
 probable consequences of his own acts. If, therefore, one vol- 
 untarily or wilfully does an act which has a direct tendency to 
 destroy another's life, the natural and necessary conclusion from 
 the apt, is, that he intended so to destroy such person's life. ,So, 
 if the direct tendency of the. wilfuU act is to do another some 
 great bodily harm, and death in fact follows, as a natural and 
 probable consequence of the act, it is presumed that he intended 
 
PRESUMPTIVE EVIDENCE. 319 
 
 such consequence, and he must »tand legally responsible for it. 
 So, where a dangerous and deadly weapon is used with violence 
 upon the person of another, as this has a direct tendency to 
 destroy life, or do some great bodily harm to, the person as- 
 sailed, the intention to take life, or do him some great bodily 
 harm, is a necessary conclusion from the act. However sud- 
 denly any act is done, the intent to do it precedes the doing of 
 it, and the act is done in pursuance of the intent and formed 
 design. Hdwever short the interval, the intent necessarily pre- 
 cedes. (9 Metcalf, 93.) 
 
 Malice, in the common acceptation, means ill-will against a 
 person; but in its legal sense it means a wrongful act, done 
 intentionally, without just cause or excuse. If I give a perfect 
 stranger a blow likely to produce death, I do it of/ malice, 
 because I do it intentionally, and without just cause or excuse. 
 If I maim cattle, without knowing whose they are, or if I poison 
 a fishery without knowing the owner, I do it of malice, because 
 lit-is a wrongful act, and done intentionally. If I am an-aigned 
 of felony, and wilfully stand mute, I am said to do it of malice, 
 because it is intentional, and without just cause or excuse. (1 
 Russ. on Onmes, 614, note 1.) The same presumption arises in 
 civil, actionSj where the act complained of was unlawful ; and, 
 generally, the rules of evidence are the same in criminal cases 
 as in civil. (1 Mass. Rep. 71, 335; 4 id. 593; 9 Pick. 39.) 
 
 As men generally own the personal property they possess, 
 proof of possession is presumptive proof of ownership. But 
 possession of the fruits of crime, recently after its commission, 
 is,_pnma /ace e evidence of guilty possession; and, if unexplained 
 either by direct evidence, or by the attending circumstances, 
 or by the character and habits of life of the possessor, or other- 
 wise, it is taken as conclusive. This rule of presumption is 
 not confined to the case of theft, but is applied to all cases of 
 cuime,^ even the liighest and most penal. Thus, upon an indict- 
 ment for arson, proof that property which was in the house at 
 the time it was burnt was soon afterwards found in the posses- 
 sion of the prisoner, was held to raise a probable presumption 
 that he was present and concerned in the oflFence. (2 East P. 
 O. 1035.) The like presumption is raised in the case of mur- 
 der, accompanied by robbery; (Wills on Oir. Ev. 72;) and in 
 
320 NEW YORK JUSTICE. 
 
 the case of the possession of an unusual quantity of countetfeit 
 money. \Russell <& Byan, 308.) 
 
 The presumption of innocence is so strong, that even when 
 guilt can, be established only by proving a negative, that nega- 
 tive must, in mosteasesybe proved by the party alleging "the 
 guilt; though the general rule of law devolves the burden of 
 proof on the partyi holding the affirmative. (1 Oreen. on Ev. 
 % 35.) An exception to this rule respecting the presumption of 
 innocence, is admitted in the case of a libel. For, where a libel 
 is sold in a bookseller's shop, by his servant, in the ordinary 
 course of his employment, this is evidence of a guilty publica- 
 tion by the master; though in general an authority to commit a 
 breach of the' law is not to be presumed. This exception is 
 founded, upon public policy, lest irresponsible persons should 
 be put forward, and the principal and real offender should 
 escape, (id. § 36.) The presumption of innocence may be 
 overthrown and a presumption of guilt be raised, by thie 
 misconduct of a party in suppressing or destroying evidence, 
 which he ought to produce, or to which the other parly- is en- 
 titled. A strong presumption is raised against a party who 
 withholds papers which he has obtained possession of from a 
 witness, after the service, of a subpoena duces tecum upon the 
 latter for their production. His conduct is attributed to his 
 supposed knowledge thatthe triithwould have operated agaiil^ 
 him. {id. § 37.) • ' 
 
 In all doubtful casesj where the scales of justice are nearly 
 poised, the coEceot legal presumption is in favor of the prisoner's 
 innocence; and that presumption should not be permitted to bfe 
 disturbed by any inference whatever from the absence of testi- 
 mony to prove good character and virtuous Ufe. The rule and 
 practice of our law in relation to evidence of character, rest on 
 the deepest principles of truth and justice. The protection of 
 the law is due alike to the righteous and the unrighteous. The 
 sun of justice shines alike "for the evil and the' good, the just 
 and the unjust.", Crime must be proved, not presumed; on the 
 contrary, the most vicious is presumed innocent until proved 
 guilty., iThe admission of a contrary rule, even in any degree; 
 would open a door not only to the direct oppi-efesiott of thos6 
 who are vicious because they are ignorant and Weak, but even 
 to the operation of prejudices as to religion, politics, character, 
 
PRESUMPTi'IVE EVIDENCE. 321 
 
 profession, and manners, upon the minds pf honest and well- 
 intentioned jurors. Although evidence of previous good char- 
 acter should operate, strongly in favor of a prisoner, a judge 
 hfl:S no right tq allude to the absence of such proof as affording 
 a presumption against a prisoner. [People vs. White, 24 We^td. 
 520.) Accordingly, where a judge instructed the jury that fair 
 character was important to the prisoner, and that they were to 
 enquire iwhy it was that he had given no evidence of his gene- 
 ral character, it was held that such instruction suggested the 
 inference that his character was bad, and was, therefore,, erro- 
 neous. {People vs. Bodine, 1 Den. 281.) Where no evidence 
 of general character has been given, the subject of character is 
 ^Ot one for the consideration of the jury; and where, upon the 
 trial, of an indictmant, no proof is given, as to the general char- 
 acter of the defendant, the law assumes that it is of ordinary 
 fairness. A prisoner on trial may show what his reputation is, 
 and then the question is open to the prosecution, and is one for 
 the jury to determine, like other controverted facts. But if the 
 prisoner chooses to give no evidence on the subject, the jury 
 are not at liberty to indulge in conjecture that his character is 
 bad, in order to infer that he is guilty of the particular crime 
 charged. {AcJcley vs. People, 9 Barb. 609.) 
 
 ;,, Jlje connection between a man's conduct and his motives, is 
 one of a moral nature, pointed out by experience. It is by their 
 experience of such connection, that jurors are enabled to infer 
 a, man's motives from his acts,, and also to infer what his conduct 
 was, from the motive by which he is known to have been influ- 
 enced. In criminal cases, proof that the party accused was in- 
 fluenced by a strong niotive of interest to commit the offence 
 proved to have been committed, although exceedingly weak and 
 inconclusive in itself, and a circumstance which ought never to 
 operate as proof of the corpus delicti, is yet, when that has 
 once been established aliunde, a circumstance to be considered 
 in conjunction with others which plainly tend to implicate the 
 agpused. Oft the other hand, the total absence of any apparent 
 motive must , always operate, strongly as a circumstance in favor 
 of , the accused, especially where there is no reason to appre- 
 hend any unsoundness of intellect. ( 1 Star, on JEv. 491.) 
 
 .-Facts ^re often simulated for the purpose of attracting suspi- 
 cion in a^ji^rectiOn different .from the true one, Sonietimeg the 
 2\ " '■ ' ' 
 
322 NEW YORK JUSTICE, 
 
 object of simulated facts is not mierely to direct suspicion from 
 the real culprit, but to attract it toward a particular individual; 
 and such is the weakness of human nature, that there are even 
 instances where innocence has degraded and betrayed itself by 
 the simulation of facts, for the purpose of evading the force 
 of circumstances of apparent suspicion. (^Wills on Circumstdti- 
 tial Evidence, 113.) 
 
 An unsuccessful attempt to establish an alibi, is always a 
 circumstance of great weight against a prisoner, because the 
 resort to that kind of evidence implies an admission of the 
 truth and relevancy of the facts alleged, and the correctness 
 of the inference drawn from them; and where the defence of 
 an alibi fails, it is generally on the ground that the witnesses 
 are disbelieved, and the story considered 'to be a fabrication. 
 The defence of an alibi often involves considerations of the 
 'most difficult and perplexing nature. It is not an uncommon 
 artifice, to endeavor to give coherence and effect to a fabricated 
 defence of an alibi, by assigning the events of another day ^o 
 that on which the offence was committed, so that the events, 
 being true in themselves, are; necessarily consistent with each 
 other, and false only as they are applied to the day in questibii. 
 {id. 115.) After all, the jury are frequently reduced to the 
 difficult and painful duty of weighing the testimony on the one 
 side against that on the other; and in doing so it is their duty, 
 on the one hand, to recollect that the presumption of law as 
 well as of justice is against the prosecutor, and therefore that 
 if the evidence on both sides is equal, or nearly so, they should 
 incline to the side of mercy; and on the other, how much more 
 easy it is to get up a fictitious alibi, where all that is to be 
 proved is the presence of the prisoner at a particulai- place at 
 a particular time, than a false account of all the minute par-. 
 ticulars relating to so many different matters, which is neces- 
 sarily implied in the proof of a false charge against a prisoner. 
 {id. 120.) In the celebrated trial of Doctor Webster for the 
 murder of Doctor Parkman, several witnesses testified posi- 
 tively that they met the latter alive in the streets of Boston, 
 after the time when he must have been killed, if at all; and 
 although there is no reason to suppose that the witnesses in- 
 tended to testify falsely, it afterward appeared conclusively 
 that they were mistaken as to the identity of the person. Illus- 
 
PRESUMPTIVE EVIDENCE. 323 
 
 trations are numerous to show, that what are supposed to be 
 the clearest intimations of the senses, may be fallacious and 
 idjeceptive. 
 
 A partnership or other similar relation, once shown to exist, 
 is presumed to continue, until it is proved to be dissolved. 
 And a seisin, once proved or admitted, is presumed to con- 
 tinue, until a disseisin is proved. The opinions, also, of indi- 
 viduals, once entertained and expressed, and the state of mind 
 once proved to exist, are presumed to remain unchanged, until 
 the contrary appears. Every man is presumed to be of sane 
 mind, until the contrary is shown; but if derangement or im- 
 ijpcility be proved or admitted at any particular period, it is 
 presumed to continue until disproved, unless the derangement 
 was , accidental, as when caused by the violence of disease. 
 .(1 Greenl. on Evid. \ 42.) * 
 
 ^^iThe relative value of direct and of ctrcumstantml ^idence. 
 - . It has been said that circumstances are inflexible proofs; that 
 witnesses may be mistaken or corrupted; but things: can be 
 neither. "Circumstances," says Paley, "cannot lie." It is 
 astonishing that sophisms like these should have passed cm*- 
 reut without , animadversion. The circumstances are assumed 
 tp be in every case established, beyond, thi possibility of mis- 
 take, aiid it is implied, that a circumstance established to be 
 true, possesses some mysterious force peculiar to facts of a cer- 
 tain class. Now, a circumstance is neither more nor less than a 
 minor fac.t,, and it may be admitted of all facts, that they cannot 
 lie; for a fact cannot at the same time exist and not exist; so 
 that in truth the doctrine is merely the expression of a truism, 
 that a fact is a fact. It may also be admitted that circumstances 
 are inflexible proofs, but assuredly of nothing more than their 
 own existence; so that this assertion is only a repetition of the 
 same truism in different terms. It seems also to have been over- 
 looked, ; that circumstances and facts of every kind must be 
 proved Tjy human testimony; that although circumstances can- 
 not lie, t^e narrators of them may; and that, like witnesses of 
 alj other facts, they may be, biased or mistaken. So far, then, 
 circumstantial possesses no advantage over direct evidence. 
 (Wills on Circumstantial Evidence, 38, 39.) If evidence be 
 sp strong as necessarily to produce certainty and conviction, it 
 
824 liiEW YORK JUSTICE. 
 
 matters not by what kind of evidence the effect is produced; 
 and the iiltensity of the i^toof must be precisely the same, 
 whether the evidence be direct or circumstantial. It is n6t 
 intended to dfeny that circumstantial evidence affoi^ds a safe 
 and satisfactory ground of assurance and belief; nor that, in 
 many individual instances, it may be superior to other indi- 
 vidual oases of proof by direct evidence. But a judgment 
 based upon circumstantial evidence, cannot, in any case, be 
 more satisfiictory than when the same result is produced by- 
 direct evidence, free from suspicion of bias or mistake. (Wills 
 on Oir. Ev. 41«) 
 
 It is essential to circumstantial proof, that the circumstances 
 from ^^*hlch the conclusion is drawn should be fully established. 
 If the basis be renioved, the superstructure cannot be secure. 
 The party upon whom the burthen of proof rests is bound to 
 prove every single circumstance which is essential to the con- 
 clusion, in the saine manner, and to the same extent, as if the 
 whole issue had rested upon the proof of each individual and 
 essential circumstance. It is obvious that proof of this nature 
 is more strong and cogent when the circumstances are numer- 
 ous, and derived from many different and independent sOm-ce^, 
 than Vrhen they are but few, and depend on ttie credit and 
 testimony of one or two witnesses. Where all the circumstances 
 rest on the testimony of a single witness, the evidence can never 
 be superior t6 the lowest degree of direct evidence, and mufet 
 frequently fall below it. For, in addition to the question whe- 
 ther the w^itness is worthy of belief, another question vrill arise, 
 that is, whether the inference is correctly drawn from the facts 
 w'hich he is supposed to prove. (1 StctrJde on Evidence, 502.) 
 
 It is essential that all the facts should be consistent with the 
 hj^othesis. The circumstances should be of a conclusive na- 
 ture and tendency. Evidence is always indefinite and inconchi- 
 sive when it raises no more than a definite probability in favor 
 of the fact, as compared with some definite probability against 
 it, whether the precise projposition can or cannot be ascertained. 
 It is also essential that the circumstances should, to a moral 
 certainty, actually exclude every hypothesis but ■ the one pro- 
 posed to be proved. Mere circumstantial evidence ought in no 
 case to be relied on, Where direct and positive evidence, which 
 might hav^ been given, is wilfully withheld by the prosecutor. 
 
EELEVANCY OP i^VipENCE. 335 
 
 ^iiere direct evidence is attainable, circumstantial evidence is 
 of a secondary nature. Besides, the great excellence of indi- 
 rect evidence i^ its freedom from suspicion and no greater dis- 
 credit cai^ be thrown upon it than when direct evidence is with- 
 held-/ ('S'<^»"^*e on Ev. 505 to 515.) 
 
 5. Relevancy of Evidence. 
 
 I We h^ye seen that there are two ways in which an issue of 
 fact may be tried in a Justice's Court, viz: by the Justice with- 
 out a jury, and by a jury. In the former case, the question of 
 the admissibility of evidence, properly speaking, can seldom 
 arise; since the evidence, whatever the objection, must neces- 
 sarily be heard by the Justice before he can decide upt)n its 
 character or value. But when the issue is tried by a jury, it is 
 the duty of the Justice to determine all questions on the ad- 
 missibility of evidence, as well as to inform the jury by what 
 rules it is to be weighed. Whether the evidence offered is 
 ^^liPSipient, is a question for the jury. (Z>OM^?as, 374; Y^Metcalf, 
 28,5; 7 W«nA- 57; 1 Gh^eenl. on Ev. § 49.) If the question of 
 admissibility is intimately connected or blended with a question 
 of fact^ the evidence is to be submitted to the jury, with the 
 ijj^rjBctions. of the Justice, if he thinks proper to give them, 
 as to the principles and rules of law by which the jury are to 
 jb^ , governed . in finding their verdict, {b Johns. 112; lA id. 
 304; 6 Hill, 326.) 
 
 ,,^he party who objects to the admissibility of evidence must 
 |,t^te specifically the grounds of his objection, It is not suffi- 
 cient to object generally that the evidence i^ illegal; but the 
 party objecting must put his finger on the very point, in order 
 to apprise, the Court and his adversary of the precise objection 
 he intends to jnake. (5 Barb, 398; 1 Oow. 662; 12 Wend. 504 j 
 «(i, 41,8; Lcfbron vs. Woraw,, 1 Hill, 91.) 
 
 . The production of evidence to the jury is governed by cer- 
 tain >;:Qll-settled principles or rules, which will now be con- 
 sidered. ..The first of these rules is, that the evidence must 
 correspond with the allegations in the pleadings, to be confined 
 |p the points in issue. Indeed, the object of a trial is to asoer- 
 l^in^ii?, truth of the allegations put in issue; and therefore any 
 evi^eijpe "vyhiGh does not tend to prove or -disprove the, j[ss}i§ 
 
326 NEW YORK JUSTICE. 
 
 joined, is foreign to the purpose for which the suit was insti- 
 tuted, and coilsequently inadmissible. (1 Starhie on Ev. 386j^ 
 Best on Ev. § 288.) This rule supposes that the averments or 
 allegations in the pleadings are material and necessary, for it is 
 only such averments that require to be prcjved. (1 StarTde on 
 Ev. 387.) Immaterial and in-elevant matters, although within 
 the terms of tile issue, need not be proved; and if proof of 
 them is offered, it may be rejected. (15 TFerec^. 502; VanBens- 
 seiaer Ex. vs. Gallup, 5 Den. 451; 1 Greenl. on Ev. § 51.) 
 These irrelevant matters are, in the language of the law, de- 
 nominated surplusage, and comprehend whatever may be stricken 
 from the pleadings without destroying the plaintiff's right of 
 action, {id.) 
 
 In determining whether a particular averment can be reject- 
 ed ias immaterial, regard is to be had to its nature, and to its 
 connection with the substance of the charge. For instance, if, 
 in action for a breach of warranty of goods, the complaint should 
 allege that the goods were not what they were warranted to be, 
 and that the defendant well knew that they were not, the aver- 
 nlent of knowledge on the part of the defendant may be reject- 
 ed, and proof of the fact is unnecessary. (2 East, 446.) 
 
 It is not requisite that the evidence should beatstrictly upon 
 the point in issue. It is admissible if it tends to prove the 
 point, or constitutes a link in the chain of proof. (1 Oreenl. on 
 Ev. \ 51.) But if the evidence thus offered is objected to, the 
 party offering it is bound to show its relevancy, by reference 
 either to the testimony already given, or to the facts to be sub- 
 sequently proved on his part. A Court, in the exercise of a 
 sound discretion, may require counsel to state the substance of 
 the evidence offered to be given, so as to enable it to judge of 
 its materiality and relevancy, and a Court of review will not 
 control an inferior tribunal in the exercise of such discretion. 
 {Roy vs. Targee, • 7 Wend. 359.) The Justice may reject evi- 
 dence, if he deems it irrelevant, or, if it is already given, may 
 instruct the jury to disregard it. The better course, however, 
 is to reject it in the first instance. (19 id. 203; 7 id. 359; 14 
 id. Ill; Cooper vs. Barber, 24_«d. 105.) 
 
 In cases in which the knowledge or intent of the party is a 
 material fact, evidence apparently collateral to the main issue, 
 but which has, nevertheless, a direct bearing upon the question 
 
BURDEN OF PROOF. 327 
 
 oJ^ knowledge or intent, is admissible. (3 Term Rep. 481; 1 
 Story, 1(35.) Where a party is charged with a specific fraud in 
 a civil action, his character is not in issue, and the evidence of 
 fra|id cannot be repelled, therefore, by proving his general good 
 character for integrity. (6 Cowen. 673; Gough vs. 8t. John, 
 16 Wend. 646.) 
 
 6. Burden of Proof. 
 
 The second general rule is, that the burden of proying the 
 issue lies oil the party holding the affirmative; or, in other 
 words, the burden of proof lies on the party who would be 
 defeated if no evidence were given on either side. {^Best on Ev. 
 §§ 254, 288.) It is for the party holding the affirmative, to 
 make out a preponderance of proof; and the burden is upon 
 the defendant, in relation to every matter of defence which does 
 i^ot come in by way of answer to the plaintiff's evidence. The 
 sijbstpice of the allegation to be tried, irather than the particular 
 form of the pleading, must determine upon whom the burden 
 lies. (I Hill, 150; Oostigan vs. Mohawk <& H.R.R. Co. 2 Den. 
 6'09.) 
 
 The rule just referred to has been adopted for the sake of 
 convenience, because it is much easier to obtain positive and di- 
 rect proof of" an affirmative fact, than of a negative one. One 
 consequence of the rule, therefore, is that when an affirmative 
 proposition is asserted, it is sufficiently met by a general denial, 
 and then, if no evidence is offered, the party denying succeeds. 
 (pest on Ev. \ 253.) 
 
 Another consequence of the rule is, that the party holding the 
 affirmative of the issue is entitled to open the cause, and to reply. 
 {id!) Having once begun, however, he must exhaust all the 
 evidence in support of the issue on his side, as it is alleged in 
 his pleading, before closing; and can, thereafter, only introduce 
 evidence in reply. (Ford vs. Niles, 1 Hill, 300; 15 Wend. 502.) 
 After the evidence in support of the issue is completed, then the 
 evidence of the negative side is heard, and then the relmtting 
 proof of the affirmative. {Hastings vs. Palmer, 20 id. 225.) 
 Tliis rebutting proof or evidence in reply, must be directed 
 strictly to answering or qualifying the case as it is made out by 
 the party holding the negative, {id!) The Justice, in his dis- 
 cretion, may, however, chang*e this order of the evidence, if he 
 
328 NEW YORK JCSTICE. 
 
 deems it necessary in order to obtain complete justice. (^Hast- 
 ings vs. Palmer, 20 Wend. 225; 17 id. 103; 1 Hill, 300; 4 id. 
 202; Leland vs. Bennett, 5 id. 286.) 
 
 The burden of proof is shifted by presumptions of law, pre- 
 sumptions of fact of the stronger kind, and evidence strong 
 enough to establish a 'prima facie case. i^Best on Ev. \ 258.) 
 When the presumption is in favor of the party who asserts the 
 negative, that only affords an additional reason for casting the 
 burden of proof upon his adversary. When the presumption is 
 in faVor of the affirmative side, the opposite side is then called 
 on to prove the negative. {Best on Ev. § 258.) 
 
 When there is a necessity of proving damages, the case falls 
 within the general rule, and the damages must be showii. (1 
 Green, on Ev. % lb.)' But, if it is admitted that the damages to 
 be recovered are merely nominal, or there is no dispute except 
 as to their computation, and the residue of the case is affii-ma- 
 tively justified by the (^efendant, he will have the right to begin 
 and reply, {id.) If, for example, in an action of trespass 
 quare clausum f regit, the defendant should plead not guilty as 
 to the force and arms, and justify as to the residue, and the 
 damages should be laid, as in the usual formula of an old dec- 
 oration, of treading down the grass and subverting the soil, 
 the defendant would be permitted to begin and reply, there 
 being no necessity for any proof on the part of the plaintiff. 
 
 (id:) 
 
 To this general rule, however, jjhat the onvs is upon the 
 party holding the affirmative of the proposition, there are some, 
 exceptions, the most numerous class of which arises in those 
 cases in which the action is founded upon a negative allegation. 
 In such cases, the plaintiff must give some affii-mative proof, 
 though the allegation be negative in its terms, {id. \ 78.) 
 
 There is another circumstance by which the burden of proof is 
 affected. Whether the question at issue be one of which both 
 the affirmative and negative are equally probable, or whether 
 either side be strengthened by a presumption in its favor, still 
 the capacity of the parties relative to giving evidence about it 
 often differs materially. The averment may be of such a char- 
 acter that the evidence must necessarily be in the possession of 
 one party who could produce it, , and thus put an end to. the 
 liligation. {Best on Ev. % 259.) Particularly is this the case 
 
AMOUNT OF PEOOF. 329 
 
 itt prosecutions for penalties for doing acts which the statute 
 floes not permit to be done by any persons except those who 
 are duly licensed therefor. (1 Green, on Ev. § 79.) To call on 
 the plaintiff in such an action to establish his case, on the 
 ground that he holds the affirmative or that the presumption of 
 law is against him, would, if not amounting to injustice, be 
 productive of circuity and delay. (Sheldon vs. Clark, 1 Johns. 
 613; 1 East-i 643.) In order to prevent this, it has been estab- 
 iished as a general rule of evidence, that in every case the onus 
 .probandi tests on the person who wishes to support his case by 
 a particular fact which lies more peculiarly within his own 
 knowledge, or of which he is supposed to be cognizant. (6 
 Term Rep. 57.) 
 
 Where the negative allegation is of a criminal neglect of 
 duty, the neglect must be proved, for the presumption of law 
 is, that where a person is required to do a certain act, the omis- 
 sion of which would make him guilty of a culpable neglect of 
 duty, he has duly performed it, unless the contrary be shown. 
 {Hmrlwdl vs. Root, 19 Johns. 345; 3 East, 192; 10 id. 216.) 
 
 So also the burden of proof is upor^ the party alleging infancy, 
 (1 Term Rep. 648,) or nonfeasance, or negligence, in actions on 
 contract. (1 Green, on Ev. § 81.) 
 
 7. Amount of Peoof. 
 
 The third general rule is, that it is sufficient if the substance 
 of the issues raised by the pleadings is proved. {Best on Ev. 
 4 262.) On the trial of an issue of fact, its substance is all thaV 
 need be proved. - Immaterial and irrelevant matter, although 
 within the terms of the issue,, may be disregarded. (1 Phillips 
 <& Amos on Ev. 200, 205.) 
 
 Thus, in an action for a breach of warranty in the sale of 
 goods, an averment of deceit upon the sale, is impertinent, and 
 need not be proved. (Williamson vs. Allison, 2 East, 446.) 
 
 Allegations of time, place and quantity, when not descrip- 
 tive of the identity of the subject of the action, need not be 
 strictly proved as alleged. (2 id. 8; Tiffany ys. Driggs, 13 id. 
 253.) Thus, in an action for malicious prosecution for a crime 
 of whi«h the plaintiff alleges that he was acquitted on a certain 
 day, the axqaittal being the gist of the averment, it is sufficient 
 to prove it, though not on the day allf^ed. ("3 Term Rep 65, 
 
330 NEW YORK JUSTICE. 
 
 67.) Nor is it nfecessary to prove the precise value of the goods 
 taken, in trespass or trover. (5 Term Hep. 248; 3 Green. 17 4^.^ 
 In actions on contract, the plaintiff can give evidence of lies? than 
 the sum alleged; and in .actions of tort, it is sufficient for hina 
 to prove a substantial portion of the gi'ievances or trespasses 
 complained of. {B&st on Ev. § 266.) 
 
 But, although the law is thus liberal in looking through mere 
 form,' in order to see the substance of< the issue raised, it does 
 not permit a positive variance between the pleadings and 
 the proof. Such a variance has always been held fatal. {Oreenl,. 
 on Ev. § 63; Best on Ev. § 197.) By the Code, however. Jus- 
 tices are directed to disregard as immaterial a variance between 
 the proof on the trial and the allegations in a pleading,, unless 
 they shall be satisfied that the adverse party has been misled 
 to his prejudice thereby. {Code, § 64, sfubd. 10.) The adverse 
 party must, therefore, not only object that the evidence does 
 not support the pleading, but must show that he has been mis- 
 led thereby. If the objection to the variance is not taken on 
 the trial, it cannot be made available afterwards. (17 Wend. 
 71; Shall vs. Lathrop, 3 Hill, 237.) 
 
 8. The Best Evidence. 
 
 The fourth general rule which governs in the production of 
 evidence is, that the best evidence must be given of which the 
 nature of the case will admit. {Best on Ev.-k^ 82; 1 Athyns, 
 M:9; Bullock vs. Koon, 9 Cow. 30.) The true meaning of this 
 rule is, that no evidence shall be brought, which, ex natura ret, 
 supposes better evidence behind in the party's own possession 
 or power. (^Gilbert on Ev. 4.) In other words, the party who 
 is to prove any fact, must do it by the highest evidence of 
 which the matter is, by its nature, capable. A common illus- 
 tration of this rule is, thnt a party who relies upon a deed or 
 a contract in writing, must produce it, and will not be permit- 
 ted to give evidence of its contents unless it has been lost or 
 destroyed, or is in the possession of the adverse party, who 
 refuses to produce it on notice. (12 Johns. 221; 16 id. 193; 
 7 Wend. 31.) If a party offers a copy of a deed, when, he 
 ought to produce the original, this carries the presuiAptiqUi 
 with it, that there is something in the deed that works against 
 
THE BEST EVIDENCE. 331 
 
 him, or else he would have produced it. (Best on Ev. \ 82; 
 Jackson vs. McVey, 18 Johns. 330.) 
 
 A consequence of this rule is the division of evidence into 
 primary and secondary. Primary evidence is the best evidence, 
 or that kind of evidence which affords the greatest possible 
 certainty of the fact in question. Evidence falling short of 
 this is secondary. If the execution of an instrument is to be 
 proved, the primary evidence is the testimony of a subscribing 
 witness. (1 Gh^eenl. on Ev. § 84; 3 Johns. All; 13 Wend. 178; 
 Jones vs. Underwood, 28 Barb. 481.) If his testimony cannot 
 be procured, then proof of his hand-writing, or, in the absence 
 of that, proof of the hand-writing of the party executing the 
 instrument, is admissible as secondary evidence. (1 Johns. 
 Cases, 230; 19 Johns. 386; 9 Cow. 140; 4 Wend. 313; 11 id. 
 96; Id id. 178; 2 Barb. 644; Teall vs. Van Wyck, 10 id. 376.) 
 In a Justice's Court, if the subscribing witness is neither in the 
 county where the cause is tried, nor in an adjoining pounty, 
 such secondary evidence is admissible. The reason is, that the 
 witness is beyond the reach of a subpoena. (2 Cow. Treatise, 
 397; Cook vs. Husted, 12 Johns. 188.) 
 
 Where the instrument is one which the law requires to be in 
 writing, secondary or oral evidence cannot be substituted for 
 its production, unless the absence of the primary evidence, 
 that is, of the instrument itself, is satisfactorily accounted for. 
 {Best on Ev. ^ 78; 1 Oreenl. on Ev. § 86.) The reason of this 
 is plain. In the first place, the presumption of law is, as we 
 have seen, against the party withholding the instrument; and 
 in the next place, the secondary evidence must necessarily be 
 derivative, and derivative proof is always rejected until the 
 absence of the original proof is, satisfactorily explained, {id.; 
 16 Meeson & Welsby, 513.) 
 
 The confession of a party does not obviate the necessity of 
 legal evidence of the execution of a speciality; much less is it 
 admissible as proof of matters of record. (6 Johns. 9; Welland 
 Canal Co. vs. Hathaway, 8 Wend. 480.) Thus, the confession 
 of the defendant that he executed a bond which is offered in 
 evidence, would be properly excluded as incompetent proof of 
 the fact. (2 Johns. 451; Fox vs. Rdl, 3 id. All.) But the 
 rule ik 0|therwise, if the instrument is one not under seal. 
 iMauH vs. Heffeman, 13 Johns. 58.) 
 
332 NEW TORE JUSTICE. 
 
 Where the instrument is one -which the parties thenjse.lves 
 have put in writing, it must be proved by producing it. The, 
 reason of this rule is, that where parties have deliberately put 
 their agreement in writing, it is presumed that the whole of 
 their undertaking, and its extent and manner, are expressed in 
 the writing. [11 Mass. Bep. 27.) Therefore, where there, is 
 a written contract of tenancy, a party is not permitted to re- 
 cover, in an action for use and occupation, without producing 
 it. (3 Espinasse, 213.) The same doctrine applies to every 
 species of written contracts. In an action for work and labor, 
 where it is shown that the work was commenced under a writ' 
 ten agreement, the agreement ought to be produced, else the 
 plaintiff cannot recover, even for extra work; {Phillips & Amos 
 on^Ev. 443;) for the written contract may be important,, even 
 with respect to the extra work, as furnishing some evidence of 
 the rate at which the work should be paid for. {^Phillips <& 
 Amos on 'Ev. 444; 4 Wenddl, 285; 12 id, 334; HolUnsh^ vs. 
 Mactier, 13 id. 276.) 
 
 The proof necessary to establish the loss or destruction of a 
 written instrument, in order to introduce secondary evidencej of 
 its contents, and the question when parol evidence is adniissible 
 to explain or contradict the language of a written contract, 'will 
 be considered hereafter. 
 
 Oral evidence cannot be substituted for any writing, the ex- 
 istence of which is disputed, and which is material either to the 
 issue between the parties, or to the credit of the witnesses, and 
 is not merely a memorandum of some other fact,. One advan- 
 tage derived from the application of the rule to' such cases is, 
 that a knowledge of the whole contents of the instrument is, ac- 
 quired, which may have an effect very different from the state- 
 ment of a part. Lord Tenterden, in alluding to this rule, ob- 
 serves: {Moody & Malkin, 258:) "I have always acted piost 
 strictly on the rule, that what is in writing shall only be proved 
 by the writing itself. My experience has taught me the extreme 
 danger of relying on the recollection of witnesses, however 
 honest, as to the contents of written instruments; they may be 
 so easily mistaken, that I think the purposes of justice require 
 the strict enforcement of the rule."^ It is not allowable, on a 
 cross-examination, in the statement of a question to a witness, to 
 represent the contents of a letter, and, then to ask the witness 
 
HEARSAY EVIDENCE. 333 
 
 if he wrote a letter to any person with such contents, 6r to the 
 like effect, because the Court wbuld then be put in possessioh 
 of a part only of a written paper. If the witness acknowledge 
 the letter to be in his hand- writing, he cannot then be questioned 
 as to its Contents; but the whole letter must be read in evi- 
 dence. (Phillips <& Amos on Ev. 442.) Where, however, a 
 written communication or agreement between parties is collateral 
 to the question in issue, it need not be produced; as, where the 
 writing is a mere proposal, which has not yet been acted upon; 
 (?<Z. 444; 2 Gamp, 521;) or where, during an employment under 
 a written contract, a separate order is given by parol; {Moody 
 <S> Malkin, 413;) or where the action is for the plaintiff's share 
 of money had and received by the defendant under a written 
 security for a debt due to them both. (4 Espinasse, 13; 10 
 Johns. 443; McFadden vs. Kingsbury, 11 Wmd. 667.) 
 
 To this rule requiring primary evidence, or the production 
 of the instrument itself, there are certain statutory exceptions, 
 making exemplifications and certified copies of certain papers, 
 evidence, which will be noticed hereafter. 
 
 There is also another exception to this rule. In the case of 
 piea<;e oflicers. Justices of the Peace, and indeed all officers from 
 the highest to»the lowest, proof that they are reputed to be or 
 have acted as such, is sufficient, without the production of then- 
 appointments. (5 Wend. 231; 9 id. 17; 11 id. 667; 23 id. 
 490; 3 Johns. 431; 12 id. 296; PeopleYS. Steven, 5 Hill, 630.) 
 If, however, the officer sues to recover fees, or sets up any right 
 to property virtute officii, it will not be enough to show that he 
 is an officer de facto; he must also show that he is an officer de 
 jure. (23 Wefnd. 490; 24 id. 520; People vs. Hopson, 1 Den. 
 574.) But the acts of an officer de facto, though his title may 
 be bad, are valid, so far as they concern the public, or the rights 
 of third persons who have an interest in the things done, (id.) 
 And an officer duly commissioned, and acting in the duties of 
 his office, is presumed to have taken the regular oath. (2 Gal- 
 lison, 15.) 
 
 9. Hearsay Evidence. — 
 
 When a witness, in the course of stating what has come under 
 the cognizance of his own senses relative tO' a matter in dispute, 
 istaites the laBgua,ge of others Vhich he has heard, or produces 
 
334 NEW YORK JUSTICE. 
 
 papers which he identifies as having been written by particular 
 individuals, he offers what is called hearsay evidence. The term 
 is used with reference both to that which is spoken and to that 
 which is .written. In its legal sense, however, it is coniined to 
 that kind of evidence which does not derive its effect solely from 
 the credit to be attached to the witness himself, but rests also 
 in part on the veracity and competency of some other person 
 from whom the witness may have received his information. 
 {PMlU'ps & Amos on Ev. 196.) 
 
 "" The general rule is, that testimony thus traditionary and de- 
 rivative in its character, is not receivable as evidence ina caiise; 
 or, as the rule is more getierally enunciated, "Hearsay is not 
 evidence."; , The language of this maxim is not strictly accurate, 
 conveying as it does the idea, that what a person has been heard 
 to say, is not receivable as evidence; an assertion which eve^r 
 ■ day's experience refutes. What a man has been heard to say 
 I against his own interest is not only receivable in evidence, but 
 lis generally the best evidence against him. (14 Mass. iJep. 
 1245; 4 Johns. 230; Best on Ev. § 330; Gilbert on Ev. 119; 2 
 Oreenl. 243.) The maxim also conveys the idea, by implication, 
 that if the words uttered had been committed to writing, or 
 rendered permanent in any other way, they woi^ld then be re- 
 ceivable; a proposition at least doubtful; for wi'itten docu- 
 ments, with which a party is not identified, are often rejected. I 
 {Best on Ev. § 330.) 
 
 ■' -The true idea intended to be conveyed by the maxim is, 
 that all second-hand evidence, whether consisting- of the contents 
 of a document, or of the language of a third person, and not 
 connected by responsible testimony with the person against 
 whom it is offered, must be rejected, (id. \ 329.) The rule 
 which we have already noticed, permitting secondary evidence 
 to be given, has no application to second-hand or hearsay evi- . 
 denee. For, in the latter case, no matter how unanswerably 
 the abjsence of the original evidence is accounted for, the infe- 
 rior evidence will not be received. Thus, what A, (a witness^) 
 has heard B, (a stranger,) say, is not only not admissible in th.e\ 
 first instance, but the clearest evidence of the death of B would| 
 not render it so. {id.) ' '■ 
 
 The foundation of the maxim may be found in another rule 
 of law, which requires all evidence to be given on oathi and 
 
HEARSAY EVIDENCE. 335 
 
 each witness to give his testimony under such circumstances as i 
 exposes him to all the penalties of falsehood.* (3 Term Rep. ^ 
 707.) Therefore it is, that hearsay evidence is uniformly held , 
 incompetent to establish any specific fact, which in its nature is 
 risuseeptible of being proved from the lips of those who can 
 speak from personal knowledge. (5 Cow. 314; 15 Johns. 226; 
 Jackson vs. Browner, 18 id. 39.) Atfd second-hand evidence is 
 excluded, not merely because it creates an impression of some- 
 thing better; its intrinsic wealaiess, its incompetency to satisfy ^ 
 the mind, and the frauds which might be practiced under its 
 cover, combine to support the rule that it is totally inadmissi- 
 ble. {Per Marshall, Ch. J., 7 Oranch, 290.) | * 
 
 ' ' The true principle to consider, in deciding the question of 
 the admissibility of this species of evidence is, not whether it 
 comes by word of mouth or by writing, but whether it is orig- 
 inal in its nature, and does not indicate any better source of 
 proof. {Best on Ev. § 330.) It does not follow, because the 
 words or writings are those of third persons not under oath, 
 that they are to be considered as hearsay. It frequently occurs 
 that the very question in issue is, whether such things were 
 written or spoken, not whether they- were true. And in other 
 case^, such language or statement, whether written or spoken, 
 ma,y be the material or inseparable concomitant of the principal , 
 fact in controversy. {Green, on Ev. \ 100; 4 Mass. Rep. 702; 
 2 Camp. 512.) 
 
 Where the question is whether a party acted prudently, or 
 in good faith, the information on which he acted, whether ti-ue or 
 false, is original and-material evidence. {Green, on Ev. \ 101.) 
 Thus, in an action for slspider, it has been held that the defend- 
 ant may give in evidence, in mitigation of damages, that a third 
 person told him what he related. (1 Binney, 85, 90; Coleman 
 vs. 8outhwiclc, 9 Johns. 45.) In such case, the person giving 
 the information should be called as the witness, and not a by- 
 stander who overheard the conversation, {id.) This doctrine 
 applies to all cases where the fact that a communication was 
 made, and not its truth or falsity, is the point in controversy. 
 Upon the same principle, evidence of general reputation, re- 
 puted ownership, public rumor, and general notoriety, though 
 composed of the speech of third persons not under oath, is 
 original evidence, aud not hearsay; the subject of inquiry being 
 
336 NEW YORK JUSTICE. 
 
 the concurrence of, many voices to the same fact. (1 Green, on 
 Uv. ij 101.) V 
 
 There are certain declarations which are admissible in evi- 
 dence, on the ground that they constitute a part of the^ res 
 gestcB and are therefore adnjissible as original evidence, being 
 distinguished from hearsay by their connection with the princi- 
 pal fact under investigation. But such declarations must hare 
 bepn contemporaneous with the principal fact, and have been 
 intended to give character to. it. (id; 9 Paige, 611;, ,15 Barh. 
 560; Moore vs. Meacham,\^ N. T. 207.) ,Thus, the declarar 
 tions of parties in relation to the terms of settlenaent between 
 them, made at the conclusion of it, are admissible as part of the 
 resgestcB. {^Kimball 'VS. Huntington, 10 Wend, 675.) 1 So, also, 
 where the state of the mind or disposition of a person at a 
 given period become? a pertinent subject of inquiry, his decla^ 
 rations and conversations, being part of the res gestae, may be 
 resorted to. (^Baxthelemy ,yb. People, 2 Hill, 248.) So in an 
 action for daniages for injuries to the person, evidence of the 
 plaintiff's complaining of distress ai^d pain at the time of the 
 injury, is admissible. {Caldwell vs. Murphy, 1 Kem. 416.) 
 But the declara,tions of a plaintiff, made to a, third person, as to 
 his having done an act, forming no part of the transaction which 
 is the subject of, the suit, are npt admissible as constituting a 
 part of the res gestcB.. {Weeks vs. Lourie, 8 Barb. 530.) Nor 
 are the declarations of a lender, made to a third person, after a 
 loan, thougt^ on the same day, admissible as part of the resgestcB, 
 to prove usury. 
 
 The declarations of an agent, acting within the scope of Ms 
 authority, are admissible to bind his principal, when they are 
 part of the res gestce. (4 Wend. 394; 6 id. 281; 6 Oow. 90; 7 
 id. 752j Hunter vs. Budson, 20 Barb. 493.) But if the declarar 
 tions were made subsequently to the transaction, they are not 
 admissib)le. (7 We<r\,d- 446; 7 Johns. 390; Vail vs. Jvdson, 4 
 E. D. Smith, 165. )> The principal's own admission or declara- 
 tip,n may generally be given in evidence against him, but the 
 declaration or adniission of his agent binds him only when made 
 during his ^.gency, and concerning a transaction within the scope 
 of his agency. (6 Wend. 281; 7 Johns. 390; 1 Oreenl. on Ev. 
 ^ 113; Vail ^s. Judson, s^pra.) What an agent, who makes a 
 sale for his principal, does at the time of the sale is admissible 
 
HKAKSAY EVIDENCE. S37 
 
 in evidence, and so also is what he says; and it is not necessary 
 to call him to prove it. {Phillips & Amos on Ev. 402.) But 
 where the agent's authority to act in a particular matter has 
 ceased, his subsequent declaration, being mere hearsay, can n6 
 longer affect his principal. (1 Greenl. on Ev. \ 113.) 
 
 The test to be applied, to ascertain whether the declarations 
 offered are admissible, is, to inquire whether they are merely 
 narrations of a past occurrence, or whether they were made 
 contemporaneously with the principal matter in issue. In the 
 former case, they are to be rejected; in the latter, admitted. 
 {id. § 110; 9 Bingham, 349.) 
 
 Upon the same ground, certain entries made by third persons 
 are treated as original evidence- There are two classes of en- 
 tries — ^those made in the discharge of official duty, and private 
 entries. Of the latter we shall speak hereafter. In the case of 
 the former, the entry, to be admissible, must be one which it 
 was the person's duty to make, and must speak to that which it 
 was his business to do, and not to extraneous or foreign circum- 
 stances. (2 8mitKs Leading Cases, 183; 10 East, 109; 15 id. 
 32; 6 Meeson & Welsby, 166; 2 Hill, 531.) The party making 
 the entry must have had knowledge of the fact, and must have 
 made the entry at or about the time of the transaction recorded. 
 (1 Grreenl. on Ev. § 115.) If the party is living, and competent 
 tO' testify, it is necessary to produce him. {Brewster vs. Doane, 
 2iHiU, 537.) Yet, though he is called as a witness to the fact, 
 'his entry of it is not thereby excluded. If he is unable to call 
 to mind the original transaction, but verifies the entry as having 
 been made by himself, as a part of his proper employment, it 
 may be given in evidence, and will be allowed to speak for 
 itselfc {Bank of Monroe vs. Culver, 2 Hill, 5^31.) 
 
 There is another class of cases in which declarations are ad- 
 missible, namely, where the question of pedigree is involved. 
 Bat as that question can hardly be supposed to arise in a JuS- 
 ■ tice^s Court, no mention is here made of the authorities on th6 
 subject. Subject to the foregoiUg qualiiications and seeming 
 exceptions, the general rule of law rejects all hearsay reports, 
 whether verbal or written, given by persons not produced as 
 witnesses". {Greenl. on Ev. § 124.) 
 
 -There are certain exceptions to the rule excluding hearsay 
 evidence, -which it is proper now particularly to notice, 
 22 
 
338 NEW YORK JUSTICE. 
 
 (1.) Matters of public or general interest. 
 
 In regard to matters of public or general interest, such as the 
 boundaries of towns and counties, claims of highways, &e., 
 {^Best on Ev. \ 332,) evidence of common reputation is received, 
 and the declarations of deceased persons, who may be presumed 
 to have' had competent knowledge on the subject, are admissi- 
 ble, (id.') But this exception is admitted only in the case of 
 ancient rights, and in respect to jiersons supposed to be dead; 
 (11 Price, 162;) and even then the declaration is admissible, 
 unless it was made before any controversy arose on the subject 
 to which the declarations relate. {Best onJEv. § 332; 1 Greenl. 
 on Ev. § 132.) These declarations are admitted as well against 
 a public right as in its favor. Thus, where the question was, 
 whether a landing place was public or private property, repu- 
 tation, from the declarations! of ancient deceased persons, that 
 it was a private landing place of the party and his ancestors, 
 was held admissible. (7 Carrington & Payne, 181.) 
 
 (2.) Ancient documents. 
 
 An exception to the rule rejecting hearsay evidence, is allowed 
 in cases of ancient possession, in the admission of ancient docu- 
 ments in its support. {Phillips & Amos on Ev. 285.) The 
 occasion calling for the admission of such evidence can seldom 
 arise in a Justice's Court. The exception, however, is well 
 settled by authority. {Best on Ev. § 334.) In order to guai-d 
 against the manifest danger of this kind of proof, it is estab- 
 lished, as a condition precedent to its admissibility, that the 
 document must be shown to have come from the proper cus- 
 tody; that is, it must be found in a place«in which, and under 
 the care of persons with whom, it might naturally be expected 
 to be found. (3 Bingham's JST. O. 200.) Even then, it will not 
 be suflScient, if no possession has been taken, or other act done, 
 under it, and the land has been held adversely. (4 Den. 201; 
 6 Barb. 109; 5 Cow. 221; Schemierhorn vs. Negus, 2 Hill, 335.) 
 
 (3.) Declarations of deceased persons. 
 
 Another exception is laid down in the books, as arising in 
 cases of declarations and entries made by persons since de- 
 ceased, and against their interest at the, time of making them, 
 
HEARSAY EVIDENCE. 339 
 
 {Phillips <& Amos on JEv. 307; Best on Ev. \ 335; 1 Oreenl. 
 on JSv. ^ 147,) when such declarations are offered in evidence 
 against third persons. It may well be doubted whether this 
 
 ' exception obtains in this State. In Kent vs. Walton, (7 Wend. 
 256,) which was an action by an endorsee against the maker of 
 a promissory note, evidence of the declarations of the deceased 
 payee, that the note was usurious, was held inadmissible. So, 
 in Beach vs. Wise, (1 Hill, 612,) which was also an action upon 
 a note, the defendant offered to show the declarations ol the 
 deceased payee, made while he was the holder of the note. 
 The evidence was rejected, the Court citing the case of JTent 
 vs. Walton, and remarking that the fact that the payee had 
 died before the hearing did not affect the principle. In Capron 
 vs. Austin, (7 Johns. 96,) the Court remarked, that what a de- 
 ceased person had been heard to say, except upon oath, or in 
 extremis, when he came to a violent end, had never been con- 
 sidered as competent evidence. Much less, would his declara- 
 tions be admissible, if they were made after his interest ceased 
 by transfer. (1 Blatchford's C. O. B. 376; 1 Cow. 519; 7 id. 
 752; 8 Wend. 490; 12 id. 142; Stark vs. Boswell, 6 Hill, 405.) 
 These cases proceed upon the ground, that the former owner 
 of property, whether it be a note, chose in action, or other per- 
 sonal property, is only to be regarded as a witness, without 
 reference to the fact that the title to the property may have 
 been derived through him. Regarded as a witness, his declara- 
 tions are but hearsay, and are alike inadmissible whether he be 
 living or dead. (Beach vs. Wise, 1 Hill, 612.) 
 • The rule is different, however, in the case of real property. 
 The declarations of a person in possession of lands are com- 
 petent evidence against himself and all persons claiming under 
 him, ^for the purpose of showing the character of his possession 
 and by what title he claims. (4 Johns. 230; 10 id. 377; 18 id. 
 330; 6 Paige, 323; Pitts vs. Wilder, 1 Com. 525.) But his 
 declarations after he has conveyed are not admissible against 
 his grantee. (13 Johns. 106; 6 Paige, 323; Crowner vs. Hop- 
 kins, 10 id. 183.) 
 
 (4.) Dying declarations. 
 In this State, the rule is, that the declarations, made in ex- 
 tremis, of a person who would, if living, be a competent wit- 
 
 <iiess, are ifladmissible evidence, either in ^ civil or criminal 
 
340 NEW yOEK JUSTICE 
 
 prosecution, with the single exception of cases of homicide, 
 where the declarations of the deceased, after the mortal blow, 
 as to the fact of the murder are admitted. (7 Johns. 95; Wil- 
 son vs. Boerem, 15 id. 286.) The declarations of a testator that 
 a will previously executed by him was extorted by duress are, 
 therefore, inadmissible. {Jackson vs. Kniffen, 2 Johns. 31.) 
 
 (5.) Testimony of deceased witnesses. 
 
 It seems to be a well settled rule of evidence, that the testi- 
 mony of a deceased witness, who was examined upon oath on 
 the trial of a former action between the same parties, and 
 where the point in issue was the same that it is in the second 
 action, is admissible on the trijal of the second action, and may 
 be proved by those who heard him give the testimony. (PA«7- 
 lips (Si.Amos on Ev. 354; 2 Johns. 17; Jackson vs. Lawson, 
 15 id. 539.) It is indispensable, however, that the second 
 trial should be between the same parties as the first one, ( Wil- 
 hur vs. SeMen, 6 Cow. 162,) that the point in issue should be 
 the same, (id.; Weeks vs. Lowrie, 8 Barb. 531,) and that the 
 witness should be dead, (ed.; 2 Johns. 17; \lid. 176; 5 Hill, 
 295; Osborn vs. Bell, 5 Den. 370.) That the vntness is beyond 
 the reach of a subpoena will not render the secondary evidence 
 admissible. (6 Cow. 162; 8 Barb. 531, supra.) 
 
 The evidence of the deceased witness may be proved by any 
 person who will swear from his own memory, or by notes taken 
 by any person who will swear to their accuracy. It has been 
 said that the person called to prove the testimony given on the 
 former trial, must undertake to repeat the precise language or 
 words of the witness, and not merely to swear to their effect. 
 (6 Cow. 162, supra.) But in elementary works the rule is laid 
 down, that it will be generally considered sufficient if the wit- 
 ness is able to swear to the substance of what was said on the 
 former trial. {Phillips & Amos on Ev. 354; 1 Greenl. on Ev. 
 ^ 165.) 
 
 In Clark vs. Vorce, (15 Wend. 193,) the minutes taken by 
 counsel on a former trial were offered in evidence and ex- 
 cluded. The witness testified, that he took very full and par- 
 ticular minutes; that he intended to take down the words of 
 the former witness, but could not pretend to give his precise 
 words; that he could not swear to the testimony except from 
 
HEARSAY EVIDENCE. 341 
 
 his minutes, and could not testify that he had taken down every 
 word of the testimony, but intended at the time to take down 
 all! that was material. On appeal. Savage, Ch. J., remarked: 
 "With respect to the testimony of a deceased witness, the rule 
 is laid down with much strictness; but if nothihg will answer 
 but an exact transcript of the testimony of the witness, in his 
 very words and all his words, it will exclude all such testi- 
 mony. There are few or no cases where a cautious and pru- 
 dent man will swear that his notes of testimony of m witness, 
 taken down at the time, contain his very words and all his 
 wards. It seems to me that the witness's notes should have 
 been received, .connected with his oath as to their accuracy. 
 It was his intention at the time to take down the words of the 
 former witness, not the substance or legal effect of his testi- 
 mony. He was ready to swear to his belief as to the accuracy 
 of his minutes, and it was his intention to take down the very 
 words of the deceased witness." A new trial was granted, 
 and, on a second appeal, (19 id. 232,) Mr. Justice Bronson 
 adopted as his own the views thus expressed by Ch. J. Savage. 
 In Hi^ vs. Bennett^ (4 Sandf. 120,) the minutes of the judge 
 who presided on the former trial were offered in evidence and 
 rejected. The judge swore that he presided and took notes of 
 the testimony on the former trial; that he could not recollect, 
 of his own knowledge,- what the witness testified to on the 
 trial, except as he referred to his minutes; that he would not 
 say .that they contained the testimony of the witness accurately; 
 that he might have omitted things which the witness testified 
 to. On appeal, Oakley, Ch. J., remarked: "It was contended 
 upon the trial, as was also strongly urged upon the argument 
 before us, that the minutes ^were of themselves evidence. But 
 we are not aware that they are ever regarded as such. K the 
 party making them swears that they are correct, or that he has 
 no doubt of their being so, in such a case, we think they would 
 be admissible. But whex-e this is not the case, the minutes can- 
 not of themselves be regarded as evidence. In this case the 
 judge was unwilling so to swear. He testified that he had taken 
 minutes upon the trial; that he would not say that they were 
 full or accurate; and that he might have omitted things to 
 which the witness had testified. We think the minutes were 
 properly rejected." The rule to be deduced from these cases 
 
342 NEW YORK JUSTICE. 
 
 seems to be, that where the witness swears to the accuracy and 
 correctness' of his minutes, that he has no doubt of their being 
 so, and that it was his intention to take down the words* of the 
 former witness, and not their substance or legal effect, then and 
 in such case the minutes, taken in connection with the oath, are 
 admissible. 
 
 The case of Green vs. Brown (3 Barb. 119) is adverse to the 
 rule just given, and to the cases from which it is deduced. It 
 is there iield that the minutes of testimony taken by counsel, 
 or judge, on a former trial, can only be resorted to as memo- 
 randa to refresh his memory, when testifying to what then 
 took place; and that a person who has no remembrance of the 
 testimony of the witness, independently of his minutes, cannot 
 be allowed to state the contents of his minutes. The case makes 
 no mention of the decision in Clark vs. Vorce, (15 Wend. 193; 
 19 id. 232,) and the decision in Huff vs. Bennett., (4 8andf. 
 120,) has the sanction of a more recent date. 
 
 A plaintiff cannot, on the second trial of a cause, use the 
 testimony of a witness on a former trial, who was then called 
 by the defendant, and is since dead, where it is shown that 
 sxich vdtness, £^t the time of testifying, was interested in the 
 event of the cause, on the side of the plaintiff. {Crary vs. 
 8prague, 12 Wend. 41.) 
 
 It does not appear to have been decided in this State, whether 
 evidence of the former testimony of a witness whose lips have 
 been sealed by the act of the law, and not by death, is admissi- 
 ble on the second trial of a cause between the same parties. In 
 Massachusetts, such evidence, where the witness on the former 
 trial has since been convicted of an infamous crime, is not re- 
 ceived. (14 Mass. Rep. 234.) There seems to be no sound 
 reason for this decision, and it is not supported by authority. 
 (1 StarJcie on Ev. 265.) In cases where the question arises, 
 the proper inquiry seems to be, whether the witness was com- 
 petent at the time of giving his testimony. His subsequent 
 conduct, and the consequences of it, can only affect his credi- 
 bility. Generally speaking, if the witness was competent when 
 he gave his testimony, it should be received; if he was then 
 incompetent, it should be rejected. 
 
ADMISSIONS. 343 
 
 10. Admissions. 4. 
 Under the head of exceptions to the rule rejecting hearsay- 
 evidence, it has been usual to class the admissions and confes- 
 sions of a party, considering them as declarations against his 
 interest, and therefore trlie. (1 Greenl. on Ev. § 169.) But, as 
 many admissions are made under circumstances which preclude 
 the supposition that the party making them intended or believed 
 that they would militate against his interest, it is obvious that 
 their competency as evidence must in some cases dep'end upon 
 some other reason than the one above given. But however the 
 admission may have been made, whether intentionally or unin- 
 tentionally, if it is offered against the party making it, it is 
 competent evidence; {Best on Ev. § 360;) if it is offered in his 
 favor, it is incompetent, {id. § 351.) And a party cannot give 
 in evidence, in his own favor, what he swore to on a former oc- 
 casion, though it may be given in evidence against him. (7 
 Johns. 132; 3 Barb. 410; Pickard vs. Collins, 23 Barb. 444.) 
 
 (1.) By whom an admission may be made. 
 - The general rule is, that the declarations of a party to the 
 record, or of one identified in interest with him, are, as aga.inst 
 such party, admissible in evidence. (9 Barnwall & Cresswell, 
 935; Phillips '<& Amos on Ev. 392.) The admission must be 
 brought home to the party against whom it is to be used, or to 
 some one identified with him; {id.;) and being so brought home, 
 the rule applies, jvhenever the , party has any interest in the 
 action, whether others have a joint interest with him on the 
 same side or not, and whatever may be the relative amount of 
 the interest. (1 Greenl. on Ev. § 172-) 
 
 The Code requires every action to be prosecuted in the name 
 of , the real party in interest, except that an executor or admin- 
 istrator, a trustee of an express trust, and a person expressly 
 authorized by statute, may sue without joining the person for 
 whose benefit the action is prosecuted. {Code, §^ 111, 113.) 
 This provision naiTows considerably the question as to what 
 persons are to be deemed parties, and renders it unnecessary to 
 consider the cases which arose under the former practice, when 
 actions could be instituted by parties having^no real interest in 
 their subject matter. The exceptions jusf referred to willbe 
 noticed in their proper order. 
 
344 NEW YORK JUSTICE. 
 
 Though the admissions of a party to the record are generally 
 receivable in evidence against him, yet when there are several 
 parties on the same side, the admissions of one are not allowed 
 to affect the others, unless there is some joint interest between 
 them. {Daw vs. Brown, 4 Cow. 483.) Thus, in an action upon 
 a joint note, the admission of one of the makers, by suffering 
 judgment by default, does not obviate the necessity of proving 
 his signature as against the other maker. (1 Esjpinasse, 135; 1 
 East, 48.) But, in the absence of fraud, if the parties have a 
 present joint interest in the matter in suit, whether as plaintiffi 
 or defendants, an admission made by one is evidence against all. 
 They stand to each other in this respect jn a relation similar to 
 that of existing co-partners. (1 Greenh on Ev. \ 174.) The 
 admission, however, to be admissible to charge all, must have 
 been made during the existence of the joint interest or copart- 
 nership, and that I'elation must have been avowed. An admis- 
 sion of the indebtedness of a firm, made by one partner after its 
 dissolution, is not evidence against the other partners. (3 Johns. 
 536; 15 id. 409; 7 Gow. 650; 9 id. 57, 420; 7 Barb. 143; Bar- 
 rich vs. Austin, 2 Barb. 241.) And, if A contract a debt in his 
 own name, his subsequent declaration that it was contracted for 
 A & Cq., is inadmissible to charge his firm. (21 Wend. 365; 
 Bank of Vergrennes vs. Cameron, 7 Barb. 143.) 
 
 It is a, joint interest and not a mere community of interest that i 
 renders such admission receivable. (1 Greenl. on Ev. 176; 3 
 Johns. 536; 6 id. 267; Whitney vs. Ferris, 10 id. 66;) There- 
 fore, the admissions of one tenant in common are not receivable 
 against his co-tenant, though both are parties on the same side 
 in the action. {Dan vs. Brown, 4 Cow. 483.) An admission 
 by one of several executors or administrators, that a debt is due 
 from his testator or intestate, does not conclude the others from 
 showing that the debt has been paid. (16 Johns. 273; Mclntire 
 vs. Morris^ administrators, 14 Wend. 98.) Nor is such an ad- 
 mission sufficient to establish the original demand against the 
 estate; {Harmon vs. Huntley, 4 Cow. 493;) nor can it be received 
 in evidence as against co-executors or co-administrators, or as 
 against heirs or devisees. (3 id. 612; 6 Johns. Ch. B. ^60'^ 
 Elwood vs. Deifendorf, 5 Barb. 398.) 
 
 An a^arent joint interest will not suffice to render an admis- 
 sion by one, competent evidence against others, where the re- 
 
ADMISSIONS. 345 
 
 ality of that interest is the point in controversy. (Greenl. on Ev. 
 ^ 177.) A foundation must first be laid by showing prima facie 
 the existence of the joint interest, {id.) Thus, the declara- 
 tions of one partner are not admissible to prove the partner- 
 ship, when that is the point in question. They are evidence 
 only against .himself, not against others. (10 Johns. 86; 
 McPherson vs. Rathbone, 7 Wend. 216.) So, also, in an action 
 upon a joint note, the execution of which was in issue, the 
 admission of his signature by one defendant only, was held in- 
 sufficient to entitle the plaintiff to recover against him and the 
 other makers, though their signatures had been proved; the 
 point to be proved against all being a joint pronoise by all. (1 
 •Espina^se, 135.) 
 
 An adniission may have been made by a party when acting in 
 a different capacity from that in which he is concerned in the 
 suit; and it seems to be considered, in such a case, that his ad- 
 mission ought not to be evidence against him. {Phillips (& 
 Amos on Ev. 398.) The admission, therefore, of an executor, 
 administrator, or guardian, made before he was clothed with 
 his trust, or of a next friend, made before the commencement 
 of the action, cannot be received, either as against the ward or 
 infant in the one case, or against himself as the representative 
 of heirs, devisees, or creditors, in the other; (2 Starkie, JV. P 
 41;) though i* may bind the person himself, when he is after- 
 wards a party, suo jure, in another action. (1 Ghreenl. on Ev. 
 \ 179.) But in an action brought to recover upon transactions 
 had with the defendant during his infancy, the admissions of 
 the defendant are admissible to show the transactions relied 
 upon, notwithstanding those admissions were made before he 
 attained his majority. {Ackerman vs. Runyon, 3 Ahb. 111.) 
 
 Notwithstanding the provisions of the Code requiring actions 
 to be prosecuted in.the name of the real party in interest, ques- 
 tions may still arise in regard to admissions made by persons 
 who "are not parties to the record, but yet are mterested in the 
 subject matter of the action. The law in regard to this species 
 of evidence looks chiefly to the real party in interest, and gives 
 to his admission the same weight as though he were a party to 
 the record. (1 Greenl. on Ev. ^ 180.) Thus, the admissions 
 of a cestui que trust are competent, so far as his interest and 
 that of his trustees are identical; and the confessions and declop 
 
346 NEW YORK JUSTICE. 
 
 rations of a deputy sheriff, made while process is in his hands,, 
 and in the course of execution, are admissible evidence to 
 charge the sheriff; (10 Johns. 478; Stewart vs. Wells, 6 Barb. 
 79;) sometimes, for the reason that they are part of the res 
 qestm, {id.,) and at other times on the ground that the deputy, 
 being liable over to the sheriff, is the real party to the action.! 
 (1 Lord Raymond, 190.) 
 
 Admissions made by a stranger to an action are sometimes 
 received in evidence, {Phillips & Amos on Ev. 396; 1 Gre&nl. 
 on Ev. § 181,) where the question is, whether a particular claim 
 ndght have been enforced against such stranger. Thus, in an 
 action against a sheriff for an escape, the debtor's acknowledg- 
 ment of the debt, being sufficient to charge him in the original 
 action, is sufficient as against the sheriff, to support the averment 
 in the complaint that the party so escaping was so indebted. 
 (2 Espinasse, 695.) So, also, the admissions of a bankrupt, or 
 entries made in,his books before his bankruptcy, are good evi- 
 dence to prove a petitioning creditor's debt. (1 Camph. 376.) 
 
 The admissions of a third person are sometimes received in. 
 evidence against a party who has expressly referred another to 
 such third person for information, (1 Greenl. on Ev. § 182,) 
 provided the admissions were strictly within the-subject matter 
 in relation to which the reference was made. {Duval vs. Goven- 
 hoven, 4 Wend. 561.) Thus, if A refers B, for information upon 
 any particular subject, to C, what C says concerning it, when 
 applied to by B, or his agent, is evidence for B in an action 
 against A. (1 Gampb. 364.) In the case of Daniels vs. Pitt, 
 {id. 366, note,) which was an action of assumpsit for goods sold, 
 the plaintiff asserted that the goods had been delivered by a 
 oartman. The defendant said that if the cartmau would say 
 that he did deliver the goods, he would pay for them. The 
 plaintiff called a witness to prove that the cartman, (who had 
 since died,) had been applied to, in consequence of the defend- 
 ant's referring to him, and Jiad said that he did deliver the 
 goods. The evidenfce was objected to, but Lord Ellenborough 
 ruled, that whenever a party referred to the evidence of 
 another, he was bound by it. 
 
 Whether the answer of the third person in such a case ia con- 
 jlusive against the party, does not seem to have been directly 
 settled. But, where one party agrees to admit what the other 
 
ADMISSIONS. 347 
 
 party will say or testify to, the rule appears to be settled in 
 favor of the conclusiveness of the admission. Thus, in Lloyd 
 vs. Willan. (1 Uspinasse, 178,) it was decided, that where one 
 party to an action oflFers to settle, if the other party will make 
 an affidavit of certain facts which are disputed, and the affidavit 
 is made, the party making the offer is bound by the affidavit, 
 and will not be permitted to dispute the question by a trial. 
 In Brooks vs. Ball, (18 Johns. 337,) Spencer, Ch. J., in deli- 
 vering the opinion of the Court, remarked: " The principal 
 question presented by this case is, whether a promise to pay 
 a sum claimed to be due by one party, and denied by the otter, 
 if the party claiming would swear to the correctness of the 
 claim, and he does so swear, is a valid promise. Another ques- 
 tion was made on the trial, whether it was competent for the 
 defendant below to prove that the plaintiff below either swore 
 falsely, or was grossly mistaken, in the affidavit which he made. 
 It has been frequently decided, that a promise to pay money, 
 in consideration that the creditor would take an oath that it 
 was due, was a valid and binding promise. {Sii- T. Raymond, 
 153; 1 Modem Rep. 166.) The cases so deciding, and which 
 stand nncontradicted, abundantly show that such a promise as 
 the present is good in point of law: and t|pt the making the 
 proof or affidavit, whether by a third person or by the party 
 himself, is a efficient consideration for the promise. It is not 
 making a man a judge in his own cause; but it is referring a 
 disputed fact to the conscience of the party. It is begging the 
 question to suppose that it will lead to perjury. If the pro- 
 mise is binding, because the making the proof or affidavit is a 
 consideration for it, the defendant must necessarily be precluded 
 from gainsaying the fact. He voluntarily waives all other 
 proof; and, to allow him to draw in question the verity or cor- 
 rectness of the proof or affidavit would be allowing him to 
 alter the conditions of his engagement, and virtually to rescind 
 his promise." This case, necessarily decides, also, that the 
 declarations of the third person are competent evidence. 
 
 In Hurd vs. Pendrigh, (2 Hill, 502,) the question raised was, 
 
 whether an affidavit given under circumstances similar to those 
 
 in Brooks vs. Ball, just cited, was admissible in evidence. 
 
 ' Nelson Ch. J., remarked: " The affidavit was properly received, 
 
 in conijection with the defendant's agi-eement (to pay the 
 
348 NEW YORK JUSTICE. 
 
 amount, if sworn to), as evidence of his own view of the just- 
 ness of the plaintiflF's claim. Taking the whole together, it 
 amounted to an admission that the plaintiff was entitled to 
 recover the value- of the goods sworn to. Indeed, if the plain- 
 tiff had discontinued this suit, and commenced an action of 
 assumpsit, predicated upon the promise, the affidavit would 
 have afforded a valid and binding consideration. (18 Johns. 
 337, supra.) If this is so, it was properly received in evidence 
 to show the extent of the defendant's conceded liability." 
 
 Admissions made by a wife will bind her husband only where 
 she has authority to make them. {Phillips & Amos on Uv. 
 408; 1 Greenl. on Ev. § 185.) But where a husband peraiits 
 his wife to act as his agent in a particulai- business, he is bound 
 by her acts and admissions, and they may be given in evidence 
 against him. (1 Espinasse, 142; 10 Johns. 38; Riley vs. 
 Suydam, 4 Barb. 222.) 
 
 The admissions of a principal are receivable in evidence in 
 an action against his surety, upon his collateral undertaking, 
 where they were made during the transaction of the business 
 for which the surety became bound, so as to become a part of 
 the res gestoe. {Phillips & Amos on Ev. 411.) 
 
 An admission by^^n attorney of record binds his 9lient in all 
 matters relating to the progress and trial of the cause. (1 Ohio 
 Rep. 270;- 13 Mass. Rep. 319; 1 Pick. 161, 347; Anon. 1 Wend. 
 108.) 
 
 The admissions or declarations of a vendor of personal pro- 
 perty, whether made before or after the sale, cannot be given 
 in evidence as against the subsequent owner; (12 id. 161; 5 
 Jbhns. 4i2; 1 Barb. Ch. R. 105; Smith vs. Wd)b, 1 Barb. 
 232;) nor are his declarations competent for the vendee in an 
 action for the property; {Hurd vs. West, 7 Cow. 752;) nor are 
 they admissible to prove a sale of such property to the person 
 claiming under him. {Woi'rall vs. Parmelee, 1 Ooms. 519,) 
 
 It is provided by statute, that in suits by or against an aggre- 
 gate corporation, the admission of any member thereof, not 
 named on the record as a party to such suit, shall not be 
 received as evidence against such corporation, unless such 
 admission was made concerning some transaction in which such 
 member was the authorized agent of such corporation. (2 R. 
 
ADMISSIONS. 349 
 
 S. 407, § 80; Commissioners of Schroeppell vs. 0, & I. P. R. 
 Co. 7 How. JR. 94.) 
 
 : The question in all these cases being, whether the party made 
 the admission, and not whether it was true in fact the admission 
 may be proved by any competent witness who heard it made, 
 without calling the party who made it. The admission, when 
 competent at all, is received as original evidence, and not as 
 secondary. (1 Greenl.. on Ev. § 191.) 
 
 (2.) The time and circumstances of the admission. 
 
 If the admission of a party is in the form of an oflfer to pay 
 so much for the sake of buying peace, it is inadmissible as evi- 
 dence of the demand. An admission of a debt, if proved, is the 
 strongest evidence; but an offer to pay money by way of com- 
 promise is not such an admission. (BuUer's iVI P. 236; 3 Us- 
 pinasse, 113.) An unqualified admission, however, of a particu- 
 lar fact, though made in a negotiation for a compromise, is evi- 
 dence against the party making it. (4 Cow. 617, 635; 7 Wend. 
 354; 16 id. 632; Marvin vs. Richmond, 3 Den. 58.) 
 ; Admissions made before an arbitrator are rec^ivalile on a sub- 
 sequent trial of a cause, the reference having proved ineffectual. 
 (3 Espinasse, 113.) 
 
 There is no difference in regard to the competency of admis- 
 sions, whether they are direct or indirect. (1 id. 342; Van 
 Allen vs. Bliven, 4 Den. 455.) Thus, in an action upon a bill 
 of exchange, where the attorney for the defendant gave the 
 plaintiff notice to produce all papers relating to the bill of ex- 
 change, describing it as having been " accepted by the defend- 
 ant," this was held to be prima facie evidence of the acceptance, 
 {Ryan & Moody, 282.) 
 
 (3.) Implied admissions. 
 
 Admissions are sometimes implied from assumed character, 
 laaguage and conduct. Thus, to prove a general allegation that 
 a party holds a particular office, it is sufficient to show that he 
 acts ini that capacity. (3 Johns. .Ail] 12 id. 296; 1 Oow. 251; 
 Dean vs. Qridley, 10 Wend. 254.) So, if an account be ren- 
 dered against a party and he does not object to it within a 
 reasonable time, hLs implied admission of its correctness is pre- 
 sumed. (4 Johns. 377; 3 Johns. Oh. R. 569; 2 Barb. 586; 
 
35d 
 
 NEW YORK JUSTICE. 
 
 Lockwood vs. Thome, 11 K. Y. 170.) So, also, if a principal 
 does not dissent from the acts of his agent •within a reasonable 
 time, and give notice thereof, his assent will be presumed. (1 
 Gaines, 539; 1 Johns. Oases, 110; 12 Johns. 300; Rossiter vs. 
 Mossiter, 8 Wend. 494.) And a promise by a party to pay a 
 note or bill, after maturity, is an implied admission of his lia- 
 bility, and is sufficient evidence of a protest for non-payment, 
 and of notice of dishonor. ( 1 Campbell, 188.) A notice to quit 
 at a certain time, if received by a tenant witl\out objection, is an 
 admission that his tenancy expires on that day. (2 Campbell, 
 559.) 
 
 (4.) The whole admission must be given in evidence^ 
 
 With respect to all verbal admissions, it has been well re- 
 marked*, that they should be always scrutinized, and received 
 with great caution; (1 Wend. 652; 6 id. 268; Gamsonvs. 
 Akin, 2 Barb. 25;) and no rule of evidtnce is better settled 
 than that which requires the whole of an admission or declara- 
 tion to be taken together. A part cannot be taken and A part 
 rejected. (3 Johns. 427; 9 id. 141; 10 id. 38, 365; Dorlonrs. 
 Douglass, 6 Barb. 431.) 
 
 The general rule is, that where the admission of a party is 
 resorted to as evidence against him, he is at liberty to call out 
 the whole conversation of which the admission was a part. (2 
 Hill, 440; 3 id. 144; Msbitvs. Stringer, 2 Duer, 26.) But the 
 additional conversation should be relevant to the matter in issue, 
 and relate to the point or fact called for by questions on the 
 other side. {Kelsey vs. Bush, 2 Hill, 440, note.) A party is 
 at liberty to call for such parts of a conversation had by him as 
 relate to independent assertions which would operate in his 
 favor upon the general merits of the case, but have no connec- 
 tion with the admission brought out by the other side. (24 
 Wend. 350; Rouse vs. Whited, 25 Barb. 279,) He has a per- 
 fect right, however, to prove such other parts of his conversar 
 tion as tend to explain or modify his admission, {id.; Dorlon 
 vs. Douglass, 6 Barb. 451.) Therefore, if a defendant admits 
 that he received money from the plaintiff, but that it was his 
 due, the whole admission must be taken together, and as, in fact, 
 a denial of the plaintiff's claim. {Carver vs. Tracy, 3 Johns. 
 427.) And if a party acknowledges that he killed another's 
 
ADMISSIONS. 351 
 
 : idog, but says that the dog attacked him, the whole conversation 
 must be admitted, an-d amounts to a justification. (10 Johns. 365 ; 
 11 i'd. ,161; 15 id. 229; Bennett vs. Biirch, 1 Den. 141.) If 
 that part of the confession which discharges the party is in 
 itself highly improbable, or if there be other evidence, though 
 it be slight, tending to discredit it, the jury may reject it, and 
 act upon the other part alone. But, where there is nothing im- 
 probable in it, and it is consistent with the other testimony in 
 the cause, its rejection is error. {Kelsey vs. Bush, 2 Hill, 440.) 
 
 (5.) The conclusiveness of an admission. 
 
 Verbal admissions, as such, are not, as a general rule, held 
 
 conclusive upon the party making them; but if they are not 
 
 lexplained or avoided by evidence, neither the Justice nor the 
 
 ..'jury are justified in disregarding them. (1 Oreenl. on Ev. 
 
 \ 204.) 
 
 An admission made by the payment of money into Court, is 
 conclusive upon the party paying it, as to every fact which the 
 z plaintiff would be obliged to prove in order to entitle him to 
 recover it; and a tender out of Court admits the same facts, 
 (zd § 205; 6 Meeson & Welsby, 9; 7 Johns. 315; 13 Wend. 
 390; 14 id. 223; 2 Hill, 538;' Wood vs. Perry, 1 Barb. 114.) 
 But the admission goes no farther. If, therefore, the contract 
 is illegal or invalid, the payment of the money into Court 
 gives it no validity. (1 Ghreenl. on Ev. \ 205; 2 Es^inas^e, 
 481.) . 
 
 Where the admission has been acted ujDon by others, it is con- 
 clusive against the party making it, in all cases that may arise 
 between him and those whose conduct it has influenced. (Otis 
 vs. 'Sill, 8 Barb. 102.) Thus, a tenant who has acted as such, 
 and paid rent, is not permitted to set up a title in a third per- 
 son as against his landlord; (1 Caines, 444; 3 Johns. 499; 1 
 €(yw. 248; 7 id. 717; Jackson vs. Spear, 7 Wend. 401;) and a 
 bailee of goods cannot, in an action to recover their possession, 
 'dispute the title of the bailor. (11 Mass. Rep. 219; 3 Picker- 
 ing, 38; 8 Wend. 610; Dezell vs. Odell, 3 Hill, 215.) But 
 ' where an admission, either verbal or in writing, has not been 
 acted upon, it is not conclusive upon the party making it, 
 although it is competent evidence. (1 Oreenl. on Ev. § 209.) 
 Nor does a receipt, although absolute in its terms*, and ex- 
 
352 NEW YORK JUSTICE. 
 
 pressed to be in full, preclude the party giving it from explain- 
 ing ii by parol evidence. (1 Johns. Oases, 145; 2 Johns. 378; 
 3 id. 319; 5 id. 68; 8 id. 389; 9 id. 310; 1 Paiye, 13; 3 Barb. 
 100; Bid. 48; Catlin vs. Grote, 4 ^. X>. /SwiM, 296.) 
 
 11. Evidence Excluded from Public Policy. 
 
 There are some kinds of evidence which the law excludes 
 from public policy, because greater mischief would probably 
 result from requiring or permitting its admission, than from 
 wholly rejecting it. (1 Oreenl. on JSv. § 236.) Thus, com- 
 munications made on the faith of tliat professional confidence 
 which a client reposes in his counsel or attorney, cannot be 
 revealed in a Court of Justice to the prejudice of the client. 
 (4 Wend. 558; 1 Hill, 33; Kellogg vs. Kellogg, 6 Barb. 116.) 
 The expediency of this rule depends not so much upon the 
 impropriety of violating the confidence reposed, as upon the 
 consideration that the inconvenience which would ensue if no 
 such confidence were reposed, would preponderate over the 
 direct mischief produced by the chance of a wrong decision, 
 or a failure of justice, resulting from the want of evidence. 
 {Phillips & Amos on Ev. 174.) Therefore, where an attorney 
 is professionally employed, any communication made to him by 
 his client, with reference to the object or the subject of such 
 employment is under the seal of professional confidence, and is 
 a privileged communication; and the seal thus placed by the 
 law remains sacredyoreves", unless removed by the client. (19 
 Wend. 353; Banlc of TJtica vs. Mersereau, 3 Barb. Oh. B. 528.) 
 But if the client, after the relation has ceased, voluntarily, and 
 without being drawn to it by artifice, repeats to his attorney a 
 communication previously made to him, it is not protected. 
 (Yordan vs. Hess, 13 Johns. 492.) 
 
 The privilege extends only to information derived from the 
 client, as such, either by oral communications, or books or pa- 
 pers shown to the attorney or counsel, or put into his hands, 
 by the client, and not to information derived from other per- 
 sons or sources, while acting as such attorney or counsel. 
 (3 Johns. Oases, 198; Orosby vs. Berger, 11 Paige, 377.) 
 
 The policy of the law also excludes the testimony of a wife, 
 when her evidence would be a violation of the confidence which 
 arises from the marriage relation. She must be excluded, there- 
 
EVIDENCE BEQUIEBD BY STATUTE OF FRAUDS. 353 
 
 fore, whenever she is called against the husband, or his repre- 
 sentative, and is asked to disclose any fact imparted to her by 
 her husband in the trust and confidence of the marriage relar 
 tion. (3 Paige, 36; 8 id. 47; 2 Hill, 181; 3 id. 513; 9 5ar6. 
 493; Erwin vs. Smaller, 2 8andf. 340.) ' 
 
 It is provided by statute, that no minister of the gospel, or 
 priest of any denomination whatsoever, shall be allowed to dis- 
 close any confessions made to him in his professional character ,• 
 in the course of discipline enjoined by the rules or practice of 
 such denomination. (2 R. 8. 406, § 72; People vs. Gates, 13 
 Wend, 311.) It is also provided, that no person duly author- 
 ized to practice physic or surgeiy shall be allowed to disclose 
 aiiy information which he may have acquired in attending any 
 patient in a professional character, and which information was 
 necessary to enable him to prescribe for such patient as a 
 physician, or to do any act for him as a surgeon. (2 R. 8. 4G6, 
 ^73; People vs. 8towt, ^ Park. Cr. R. 670.) The privilege 
 thus accorded, as in the case of the privilege given by the com- 
 mon law to communications made to a legal adviser, is the 
 privilege of the party, and not of the witness. If the party 
 waives it, the witnes may be examined. (14 Wend. 637; Ben- 
 jamin vs. Coventry, 19 Wend. 353,) A physician consulted 
 by Si party as to the means of procuring an abortion is not pri- 
 vileged, under this statute, from testifying to the fact on the 
 tria,l of the party. {Heivitt vs. Prime, 21 id. 79; 4 Paige 60.) 
 
 12. Evidence Required by the Statute of Frauds. 
 
 . By this statute, which has been treated of in a previous 
 portion of this work, {Ante, p. 40,) some written evidence is 
 universally required of all conveyances of lands, or of any 
 interest in lands, other than leases for the term of one year, 
 and of all trusts and powers over or concerning lands, or in any 
 manner relating thereto, and of every grant, assignment, or sur- 
 render of any such estate, interest, trust, or power. (2 R. 8. 
 134, § 6.) The writing which the statute requii-es must be signed 
 by the party creating, gr5|,nting, assigning, surrendering, or de- 
 claring the estate, interest, trust, or power, or by his lawful 
 agent thereunto authorized by writing, (id.) So, also, every 
 contract for th?) leasing for a longer period than one year, or for 
 the sale of any lands, or of any interest in lands, must be evi- 
 • 23 
 
354 • NEW YORK JUSTICE. 
 
 denced by a written contract, note, or memorandum, and sub- 
 scribed by the party by whom the lease or sale is to be 
 made, or by his lawfully authorized agent. (2 R. S. 135, ^§ 8, 9.) 
 By the same statute, written evidence, ("expressing the consider- 
 iation,! and signed by the party to be charged therewith, is 
 required in the following cases: 1. Every agreement that by its 
 terms is not to be performed in one year from the making 
 'thereof; 2. Every special promise to answer for the debt, 
 default, or miscarriage of another person; 3. Every agreement, 
 promise, or undertaking, made upon consideration of marriage, 
 except mutual promises to marry, (id. § 2.) So, also, every 
 contract for the sale of any goods, chattels, or things in action^ 
 for the price of fifty dollars or more, is void, unless, 1. A note 
 or memorandum of such contract is made in writing, and sub- 
 scribed by the parties to be charged thereby; or, 2. Unless the 
 buyer accepts and receives part of such goods, or the evidences, 
 or some of them, of suclj things in action; or, 3. Unless the 
 buyer pays, at the time, some part of the purchase money. (2 
 Ji. jS. 136, § 3.) And further, every grant or assignment of 
 any existing trust in lands, goods, or things in action, is void, 
 unless the same is in writing, and subscribed by the party mak- 
 ing it, or by his agent lawfully authorized, (id. 137, § 2.) 
 
 The signing of the agreement by one party only is sufficient, 
 provided it be the party sought to be charged. He is estopped 
 by his signature from denying that the contract was validly 
 executed, though the paper be not signed by the other party 
 who sues for a performance. The signature may be made with 
 a lead-pencil: and if the name is inserted in such a manner as 
 to have the efiect of authenticating the instrument, it is imma- 
 terial in what part it is found.' (2 Kent's Oomm. 511; Claso7i 
 vs. Bailey, 14 Johns. 484.) The contract must be stated with 
 reasonable certainty, so that it can be understood from the writ- 
 ing itself, without having recourse to parol proof. {Bailey vs. 
 Ogden, 3 id. 399.) Unless the essential terms of the agree- 
 ment can be ascertained from the writing itself, or by a refer- 
 ence contained in it to something else, the writing is not a com- 
 pliance with the statute; and the agreement, if thus defective, 
 cannot be supplied by parol proof, for that would introduce the 
 ^ery mischief which the statute of frauds was intended to prt>- 
 
PAROL EVIDENCE TO VARY WRITTEN INSTRUMENTS. 6oo 
 
 ; 5 
 
 vent. (13 Johns. 297; Parhhurst vs. Yan Oortland, 1 Johns. 
 0^.72.280,281.) ^ 
 
 13. Parol Evidence to Vary Written Instruments. 
 
 It is a well established rule of evidence, and one subject to but 
 few exceptions, that written agreements, whether specialties or 
 simple contracts, and whether within or without the statute of 
 frauds, are not to be contradicted, varied, or materially affected 
 by oral testimony; (1 Johns. Oases, 273; 8 Johns. 375; 11 id. 
 201; 1 Cow. 249; 5 id. 497; 9 id. 747; 6 Hill, 219; 8 Barb. 
 102, 205, 585; 2 Corns. 153; Patterson vs. O'Hara, 2 E. D. 
 Simith, 58;) or, as the rule has been more briefly expressed, 
 parol contemporaneous evidence is inadmissible to vary or con- 
 tradict the terms of a valid written instrument. {Phillips & 
 Amos on Ev. 753.) The rule, however, only excludes any 
 other evidence of the language used by the parties in making 
 the contract, than that which is used by the instrument itself. 
 It excludes the colloquium or oral negotiation leading to the 
 Very contract which the parties consummate by reducing it to 
 Writing; but it does not necessarily reject the antecedent parol 
 agreement of a different character, and imposing a very differ- 
 ent but not inconsistent obligation. (^Blossom vs. Griffin, 3 
 Kern. 569.) 
 
 -The effect of this rule is, to exclude any other evidence of the 
 language or words used by the parties, than that which is 
 afforded by the instrument itself, {8chermerhorn vs. Vander- 
 heyden, 1 Johns. 139.) Thus, where a promissory note is drawn, 
 and no time of payment is mentioned, it is payable immediately, 
 and oral evidence is inadmissible to show a different time of 
 payment. (Thompson vs, Ketcham, 8 id. 189.) Nor can such 
 an instrument be contradicted, or its legal effect be controlled, 
 by oral evidence that it was given under an agreement that it 
 should be void on the happening of a certain event, (Erwin vs. 
 Saunders, 1 Cow. 249,) or should have no validity except in a 
 certain event. {Payne vs. Ladue, 1 Hill, 116.) 
 - Written instruments are to be construed according to their 
 sense and meaning, as collected from the terms used; which 
 terms are to be understood in their plain, ordinary, and popular 
 sense, unless, by the known usage of trade, they have acquired 
 a meaning distinct and separate from their populw sense, of 
 
356 NEW YORK JUSTICE. 
 
 unless the context indicates that, in the particular instance, they 
 must be understood to have a special and peculiar meaning, in 
 order to effectuate the immediate intention of the contracting 
 parties. (4 East, 135.) And in construing the writing it is 
 proper to look at all the surrounding circumstances, and the 
 pre-existing relation between the parties, and then to see what 
 they mean when they speak. (3 Kern. 569, supra; 22 Barb. 
 326.) The meaning of letters and abbreviations used in a 
 written contract ma,y be proved by parol. {Dana vs. Fiedler, 
 1 E. D. Smith's 463, aff'd. 2 Kern. 40.) And where parol evi- 
 dence is offered not to show the existence of a mistake in a 
 written instrument, but to show one patent on the face of the 
 writing, it is admissible. {McNulty vs. Prentice, 25 Barb. 204.) 
 
 Where a part of a contract is printed and a part written, 
 greater effect must be given to the written words, they being 
 the terms which the parties themselves have chosen to express 
 their meaning; the printed words being a formula, applicable 
 as well to the agreement in question as to other agreements 
 similar in character. (4 East, 135.) 
 
 The rule that a written instrument cannot be explained by 
 oral testimony, applies only to parties and privies to the agree- 
 ment. They are estopped from contradicting their written un- 
 dertaking. But the rule does not extend to strangers who have 
 an interest in investigating and knowing the real truth of the 
 case. Thus, in a contest between the overseers of the poor of 
 two towns, relative to the settlement of a pauper, the overseers 
 of one town having proved that the pauper had purchased a lot 
 of land, and given back a mortgage for less than the considersr 
 tion expressed in the deed, the overseers of the other town were 
 permitted to show by parol proof that the pauper paid no con- 
 sideration for the land. {Overseers of Berlin vs. Overseers of 
 N(yrwicli, 10 Johns. 229.) 
 
 Where the instrument is written in a foreign language, a 
 translator may be called to read it to the jury. Where the 
 idifficulty arises from the hand-writing, one slulled in decipher- 
 ing hand-writing may be called; and where it arises from a 
 doubt as to what the words really are, it is for the jury to de- 
 termine what they were meant to represent. (18 id. 107; 
 Sheldon vs. Bmham, 4 Hill, 129.) If the instrument does not 
 purport on its face to be a complete agreement between the 
 
PAROL EVIDENCE. TO VARY WRITTEN INSTRUMENTS. S57 
 
 parties, and if the coutract is one not required to be in writing, 
 oral testimony is admissible to supply the deficiency. \^Potter 
 vs. Hopkins, 25 Wend. 417.) 
 
 Very different questions, however, from those decided in the 
 above cases arise, where it is proposed wholly to annul, by 
 parol evidence, a written instrument, by showing that it was 
 invalid ab initio, or to show that since its execiition new terms 
 have been introduced and substituted by the parties, or that the i 
 instrument has been entirely abrogated by them. 
 
 (1.) Parol evidence to annul written instruments. 
 
 I In an action between the parties to a written instrument, parol 
 evidence is admissible to show that it is altogether void, or that 
 it never had any legal existence. {Phillips <& Amos on Ev. 
 757; 1 (3h'eenl. on Ev. ^ 284.) And this applies to all con- 
 tracts, whether under seal or not. (id.; 20 Johns. 478; 11 
 Wend. 534; Brice vs. Brice, 5 Barb, 533.) Actual fraud may 
 be proved by parol. {Van Valkenburgh v.s. Rouk, 12 Johns. 
 337.) So, too, it may be shown that a contract was made for 
 the furtherance of objects forbidden by law; (1 Smith's Lead- 
 ing Oases, 154, 168;) or that the instrument was obtained by 
 duress, {Thompson vs. Lockwood, 15 Johns. 256,) or when the 
 party was non compos m,entis, or intoxicated, (2 Kent's Gomm. 
 451; 3 Cow. ^^b;'^ Prentice vs. Achorn, 2 Paige, 30,) or that it 
 was never delivered, {Clark vs. Gifford, 10 Wend. 310,) and 
 therefore never had any legal existence in the hands of the 
 holder. 
 
 (2.) Parol evidence to show a subsequent variance of a written 
 
 agreement. 
 
 We have before stated the general rule, that oral testimony 
 is inadmissible to contradict, vary, or materially affect written ' 
 agreements; but this rule does not exclude parol evidence of 
 fraud, nor does it exclude parol evidence of the enlargement 
 of the time for the performance, or a waiver of the perform- 
 ance, of written simple contracts. (1 Johns. Gases, 22; Erwin 
 vs. Saunders, 1 Coio. 249.) 
 
 If the agreement be by deed, it cannot in general be dissolved 
 by any executory agreement of an inferior nature. (10 Wend. 
 180; ^13 id. 71; 21 id. 628; Nelson vs. Sharp, 4. Hill, 584.) 
 
358 NEW YORK JUSTICE. 
 
 But any obligation in writing, not under seal, may be totally 
 dissolved by a subsequent oral agreement; {^Brewster vs. Oown- 
 tryman, 12 Wend. 446;) or it may be merged in a new and 
 distinct agreement upon a new consideration; or the time for 
 performance may bo enlarged; or performance may be waived; 
 {Fleming vs. Qilhert, 3 Johns. 528;) of any of which changes 
 or variances parol evidence is admissible. (1 Greenl. on Ev. 
 \ 303; 1 Jqhns. Gases, 22; 1 Cow. 249; 5 id. 497; 7 id. 48; 
 Blood vs. Goodrich, 9 Wend. 68.) 
 
 (3.) Parol evidence as to the consideration of written 
 instruments. 
 
 It is provided by statute, that in every action upon a sealed 
 instrument, and where a set-off is founded upon any sealed 
 instrument, the seal' thereof shall only be presumptive evidence 
 of a sufficient consideration, which may be rebutted, in the same 
 manner, and to the same extent, as if such instrument were not 
 sealed. (2 R. S. 406, § 77.) But the defence thus allowed 
 cannot be made, unless the defendant pleads the same, or gives 
 notice thereof, at the time of pleading the general issue, or 
 some other plea denying the contract on which the action is 
 brought, {id. § 78.) Under these provisions of the statute, a 
 want or failure of consideration in a sealed instmment, as well 
 as fraud or illegality, may be shown by parol testimony, (11 
 Wend. 106; 14 id. 195; Mannvs. Eckford's Exec. 15 id. 502,) 
 if the defence has been properly pleaded, or notice thereof 
 given. (21 id. 626; 25 id. 107; Van Epps vs. Harrison, 5 
 Hill, QQ.) The statute, however, does not change the rule, that 
 parol evidence is inadmissible to contradict or vary a written 
 agreement. It merely allows evidence to be adduced, which 
 was previously available only in a cross-action, or in another 
 form. Therefore, in a suit upon a bond conditioned to convey 
 lands by a certain day, parol evidence, to prove that the con- 
 veyance was not to be made until the obligee had paifl a sum 
 of money, has been held inadmissible. {McGurtie vs. Stevens, 
 13 Wend. 527.) 
 
 The consideration of negotiable instruments, as between the 
 original parties, may be inquired into, and a total or partial 
 feilure of consideration be shown by parol evidence. (4 Johns. 
 
COMPETENCY OF WITNESSES. S59 
 
 '296; 7 Johns. 26; 11 id. 50; 17 id. 301; 20 id. 130; 7 Cow. 
 322; 9 Wmd. 273; Paj^n vs. Gutter, 13 zcZ. 605.) 
 
 (4.) Usage. 
 
 ■Parol evidence of usage is admitted, either to interpret the 
 meaning of the language of a contract, when it is equivocal and 
 obscure, or to ascertain its nature and extent, in the absence 
 of express stipulations. (1 Gh-eenl. on Ev. \ 292.) So, also, evi- 
 dence may be received of a mercantile usage, to show the 
 meaning of the terms used in a contract. (Boorman vs. John- 
 son, 12 Wend. 566.) But such evidence will no* be received 
 to contradict a settled rule of law, (2 Johns. 327; 14 id. 316; 
 Hinton vs. Locke, 5 Hill, 437,) or to give a different meaning 
 to a term which has a legal or statutory signification; (1 Johns. 
 192; Sleght vs. Hartshorn, 2 id. 531;) as, for example, to prove 
 that "ton" in a contract was meant by the parties as gross 
 weight, or 2,240 pounds, the statute having defined it as 2,000 
 pounds. {Laws q/"1851, chap. 134, § 7; 9 Paige, 188.) 
 
 The proof of usage, to vary the usual import of words in a 
 contract, ought to be so clear, as to 'leave no doubt that the 
 parties contracted in reference to it. The terms of the con- 
 tract, in their' ordinary construction, must prevail, unless there 
 is evidence that they have a particular meaning attached to 
 them by the usages of trade — a usage known to the party at 
 the time of contracting, or which he is presumed to have known 
 and assented to. Thus, a memorandum, acknowledging the re- 
 ceipt of grain in store, or on sale, imports a bailment; but 
 proof \s admissible, to show that, by the usage of dealers in 
 grain, the memorandum means a sale, and that the parties so 
 understood it. (Dawson vs. Kittle, 4 Hill, 105, 107.) A mer- 
 cantile usage cannot, however, be proved by the understanding 
 of mercantile men as to the law, but only by proof of their 
 acts and customs. (15 Wend. 482; 22 id. 215; Hawes vs. Law- 
 rence, 4 Corns. 345.) 
 
 14. Competency of Witnesses. 
 
 The instruments of evidence are divided into two general 
 classes, namely, unwritten and written. By unwritten evidence 
 is meant the testimony given by witnesses viva voce, in open 
 
3&0 NEW TOEK JUSTICE. 
 
 Court, OP before persons authorized by law to act as magis- 
 trates, commissioners, &c. 
 
 In a former portion of this work we consider the means by 
 which the attendance and testimony of witnesses may be com- 
 pelled, and We now propose to consider who are proper and 
 competent as -svitnesses. ^ 
 
 (1.) Persons occluded by statute, and by the common law. 
 
 There are certain classes of persons, whom, on account of 
 some personal disability or defect, the law excludes from giving 
 testimony. One of these classes comprehends those persons 
 who are deficient in understanding, or, in other words, who ar6 
 idiots, lunatics, or madmen. It makes no difference from what 
 cause the defect of understanding may have arisen, nor whe- 
 ther it be temporary and curable, or permanent. While the 
 deficiency exists, be the cause what it may, the person is not 
 competent as a ^tness. (1 Greenl. on Ev. % 365; 10 Johns. 
 362; Hartford vs. Palmer, 16 id. 143.) If he is offered, proof 
 is admissible to show his incompetency. (Livingston vs. Kin- 
 sted, 10 id. 362.) If objection is made, that an infant offered as 
 a witness is incompetent, from a deficiency of understanding 
 arising from immaturity of intellect, he should be examined in 
 presence of the party objecting to his capacity, and if he ap- 
 pears to have sufficient natural intelligence, and to have been 
 so instructed as to comprehend the nature and effect of an oath, 
 he may be admitted to testify, whatever his' age. (18 id. 98; 
 People vs. McNair, 21 Wend. 608.) 
 
 Persons who are intoxicated are within the principle of the 
 above rule; for, as has been well said, "intoxication is a minor 
 madness," producing a temporary derangement of the mind, 
 and incapacitating the person affected from narrating events in 
 a credible manner. A Justice has power to decide, from his 
 own view of the situation of the witness offered, whether he is 
 intoxicated to such a degree that he ought not to be heard, and, 
 if he is, to exclude him. (16 Johns. 143, supra.) 
 
 Another class comprehends persons who have been convicted 
 of infamous crimes. It is provided by statute, that every per- 
 son who shall, upon conviction, be adjudged guilty of perjury, 
 or of subornation of perjury, shall not thereafter be received 
 as a witness to be sworn in any matter or causQ whatever, until 
 
COMPETENCY OF 'WITNESSES. 361 
 
 the judgment against him has been reversed. (2 M. S. 681, 
 §§ 1, 4.) The statute also provides, that no person sentenced 
 upon a conviction for felony, shall be competent to testify in 
 any cause, matter, or proceeding, civil or criminal, unless he be 
 pardoned by the governor, or by the legislature, except in the 
 cases specially provided for by law; but that no sentence upon 
 a conviction for any offence other than a felony, shall disqualify 
 or render any person incompetent to be sworn, or to testify, in 
 any cause, matter, or proceeding, civil or criminal, (id. 701, 
 ^ 23.) The excepted cases in which convicts are competent 
 witnesses, are those in which the offence is charged to have 
 been committed in a county or state prison, while the witness 
 was confined therein; and then, one convict is a competent wit- 
 ness for or against another, (id. 774, §§ 7, 8; Laws of 1847, 
 ehap. 460, §§ 151, 155.) * 
 
 Where the objection is made, that the witness offered has 
 been convicted of a felony, parol evidence is inadmissible to 
 prove the incompetency. (Hilts vs. Colvin, 14 Johns. 182.) 
 If no i-ecord of judgment was made up, the incompetency 
 must be proved, either by producing a copy of the minute of 
 the conviction, with the sentence of the Court thereon, duly 
 certified by the clerk in whose custody the minutes are, under 
 his official seal, and a copy of the indictment on which such 
 conviction was had, certified in the same manner; (2 R. S. 739, 
 ^10;) or, by producing the minutes of the clerk of the Court, 
 if they have been inspected by the Court, and made to conform 
 to the facts. If a record of judgment was made, that must be 
 produced. (14 Johns. 182, supra; 25 Wend. 465.) 
 
 Husbands and wives are also excluded .from being witnesses 
 either for or against each other, in any cause, civil or criminal. 
 (1 Green, on Ev. § 334; 7 Johns. Ch. R. 229; 8 Johns. 72; 2 
 mil, 181; 3 id. 513; Bun-ell vs. Bull, 3 Sandf. Oh. 15.) In 
 the language of Chancellor Kent: "A husband and wife cannot 
 be witnesses for or against each other in a civil suit; nor can 
 either of them be permitted to give any testimony, either in a 
 civil or criminal case, which goes to criminate the other. And 
 this rule is so inviolable, that no consent will authorize the 
 breach of it." (2 Kent's Oomm. 178.) There appears' to be 
 only one exception to this rule; which is, that where the hus- 
 band is charged, in a criminal action, with committing an injury 
 
362 NEW YORK JUSTICE. 
 
 on the person of his wife, or threatening 'one, she may be a wit- 
 ness against him. {People vs. Carpenter, 9 Barb. 580.) And 
 tlie rule remains the same, notwithstanding the provision of the 
 Code authorizing the examination of aparty to an action. {Code, 
 § 390; Laws of 1847, chap. 462.) It is held that sections 398 
 and 399 of the Code do not affect the rule excluding the hus- 
 band or wife from testifying in causes in which the other is a 
 party or is interested. That rule does not rest on the ground 
 of the interest of the witness in the suit, but depends merely 
 upon the existence of the marriage relation. Where a husband 
 or wife has an interest in the event of the suit which would 
 render his or her wife or husband incompetent at common lawj 
 the incompetency of the wife or husband remains. While the 
 interest of the one exists, the other being incompetent as wife 
 or husband, not on the ground of interest, cannot be a compe- 
 tent witness, until some further statute shall remove the incom- 
 petency arising from the marriage relation. {Hasbrmick vs. 
 Vandervort, 5 Seld. 153.) An opposite construction would 
 allow a party to secure the testimony of convicted felons, idiots, 
 lunatics, and children too yomig to understand the obligation of 
 an oath, by making them parties to an action. (5 Barb. 156; 
 2 Sandf. 340; Hasbrouck vs. Vandervort, 4 id. 596; 8. C. 1 
 Code Rep. (n. s.) 81.) In the application of the rule, it makes 
 no difference at what time the relation of husband and wife com- 
 menced, nor is it material that it should still exist. Thus, where 
 the defendant married one of the plaintiff's witnesses, after she 
 was actually summoned to testify in the suit, she was held in- 
 competent to give evidence against him. (3 Oarrington & 
 Payne, 558.) So, also, a divorced wife is not a competent wit- 
 ness against her former husband, with reference to transactions 
 which occurred during the coverture. {Barnes vs. Camach, 
 1 Barb. 392.) 
 
 Persons insensible to the obligations of an oath have always 
 been held to be incompetent to testify as witnesses. The provi- 
 sions of the statute, relative to the religious belief of witnesses, 
 are as follows: Every person believing in the existence of a 
 Supreme Being who will punish false swearing, shall be admit- 
 ted to be sworn, if otherwise competent. (2 R. 8. 408, § 87.) 
 No person shall be required to declare his belief in the existence 
 of a Supreme Being, or that he will punish false sweaiing, or 
 
COMPETENCY OF WITNESSES. 363 
 
 Ms belief or disbelief of any other matter, as a requisite to his 
 admissioii to be sworn or to testify in any case. But the belief 
 or unbelief of every person offered as a witness, may be proved 
 by other and competent testimony. (2 R. S. 408, § 88.) But 
 the last section shall not be construed to prevent any Court 
 before whom an infant, or a person of apparently weak intellect, 
 shall be produced as a witness, fi'om examining such person, to 
 ascertain his capacity, and the extent of his religious and other 
 knowledge; nor shall it be construed to prevent a Court from 
 inquiring of any person, what are the peculiar ceremonies ob- 
 served by him in swearing, which he deems most obligatory. 
 {id. % 89.) Under these provisions, it was decided, that a per- 
 son who does not believe in the existence of a God, nor in a 
 future state of rewards and pumshments, cannot be a witness in 
 a Court of Justice, under any circumstances; {Jackson vs. Grid- 
 ley, 18 Johns. 98;) that a belief in the existence of a God is 
 an essential prerequisite to the competency of a witness; but 
 that a belief in the eternity of punishment is not essential, 
 {Butts vs. Swartwood, 2 Cow. 431,) nor a belief in future punish- 
 ment, if the witness believes that perjury will be punished in 
 this world. {People vs. Matteson, id. 433, note.) The Consti- 
 tution of 1846, however, contains the following provision: 
 " The free exercise and enjoyment of religious profession and 
 worship, without discrimination or preference, shall forever be 
 allowed in this State to all mankind; and no person shall be 
 rendered incompetent to he a witness, on account of his opinion 
 on matters of religious belief; but the liberty of conscience 
 hereby secured shall not be so construed as to excuse acts of 
 licentiousness, or justify practices inconsistent with the peace 
 or safety of this State." {Constitution of 1846, Art. i., sec. 3.) 
 How far this Constitutional provision modifies or affects the 
 statutory enactments and judicial decisions just referred to, has 
 not been settled, nor, as is believed, has the question been as 
 yet raised in any Court. 
 
 (2.) Persons rendered competent by special statute. 
 Certain classes of persons are rendered competent as witnesses 
 by special statute, as follows: 
 
 . 1. Corporators.^ Any member of a corporation aggregate, 
 iiot named on the record as a party to a suit brought by or 
 
364 NEW YORK JUSTICE. 
 
 against such corporation, is a competent witness to testify to any 
 matter against the interest of such corporation. (2 R. 8. 407, 
 § 81.) And, if he has no personal interest, it seems that he is 
 a competent witness /or the corporation. (1 Paige, 601; Paci; 
 vs. Mayor of N.Y.Z Com. 489.) 
 
 2. Indiansi\ The giving or selling any spirituous liquors or 
 intoxicating drink to any Indian residing within this State, is, 
 by statute, (Laws of 1849, chap. 420, § 1,) declared a misde- 
 meanor; and the receiving of any goods or chattels from any 
 Indian, in payment or exchange for any spirituous liquor or in- 
 toxicating drink, is punishable by a forfeiture of ten times the 
 value of the articles received; (id. § 2;) and such goods or 
 chattels may be reclaimed by the Indian selling or pledging 
 them, from the vendee or pledgee, or any assignee of his, by 
 action in any competent Court, (id^ By the same statute, any 
 Indian is rendered a competent witness to prove the receipt of 
 the goods and chattels, and the sale or gift of any intoxicating 
 drink to any Indian. (Laws of 1849, chap. 420, § 2.) 
 
 3. Owners of lost baggage.^ It is provided, by the general 
 railroad act, that a check must be affixed to every parcel of 
 baggage received by a railroad corporation for transportation, 
 and a duplicate thereof be given to the passenger, or the 
 person delivering the same on his behalf; and that if, on pro- 
 ducing the cheek, his baggage be not delivered, the passenger 
 may himself be a witness, in any suit brought by him, to prove 
 the contents and value of the baggage. (Laws of 1850, chap. 
 140, § 37.) 
 
 4. Persons betting and gaming.\ The statute provides, that 
 no person other than the parties in the cause, shall be incapaci- 
 tated or excused from testifying, touching an offence against any 
 of the provisions of the statute relating to gaming, by reason of 
 his having played, betted, or staked at any game, as therein 
 prohibited; but that the testimony of any such person shall not 
 be used against him in^,ny suit or prbsecution authorized by 
 that statute. (1 R. S. 663, § 18.) 
 
 5. Plaintiff, whe>-e the defence is iisurg.] Whenever, in an 
 action at law, the defendant pleads or gives notice of the defence 
 of usury, and verifies, by affidavit, the truth of his plea or 
 notice, he ihay^, for the purpose of proving the usury, call and 
 examine the plaintiff as a witness, in the same manner as other 
 
COMPETENCY OF WITNESSES. 365 
 
 witnesses may be called and examined. {Laws of 1837, chdp. 
 430, § 2.) Under this act, the defendant may examine the real 
 plaintiff in interest, whether he be named as a party or not; (5 
 Hill, 523; 9 Paige, 226;) but the fact of his being the real 
 party in interest, if he is not a party to the record, must first 
 be proved. (2 Den. 155; Henry vs. Salina Hank, 1 Coins. 
 83.) The provisions of the Code have undoubtedly done away 
 with the necessity of proving him to be the real party in interest. 
 The plaintifi" is not bound to regard a notice to attend the trial, 
 but should be subpoenaed. (4 Hill, 119; Draper vs. Hern- 
 nigsen, 1 Bosw. 611.) 
 
 6. Persons interested in actions on demands brought for suit.^ 
 The defendant in any action of debt, covenant, or assumpsit, 
 may give notice with his plea, in addition to any other matter 
 of defence, that, on the trial of the cause, he will insist and 
 prove that the demand on which such action is founded has been 
 bought aaid sold, or received, for prosecution, contrary to law, 
 without setting forth any other particulars. (2 R. 8. 268, 
 \ 237.) On the trial of the cause in which such notice is given, 
 if the defendant requires it, the plaintiff and his attorney, and 
 any other person who may be interested in the recovery in such 
 cause, must be examined on oath, touching the matters set forth 
 in such notice, {id. \ 240.) No evidence derived from the 
 examination of any such plaintiff, or other person, can be ad- 
 mitted in proof op any criminal prosecution against the party 
 so examined, for violating any of the provisions of the statute 
 prohibiting the buying of securities, demands, &c., for the 
 purpose of commencing suits thereon, {id. § 242.) 
 
 7. Parties^to actions.] By the common law, a party to the 
 record in a civil suit could not be a witness in a cause. (1 Greenl. 
 on Ev.\ 329.) Nor could a party to il;(j record compel an 
 adverse party to give evidence against himself upon a trial. 
 {id. \ 330; 20 Johns. 142; 7 Cow. 174; 1 Wend. 20; 11 id. 
 533; Benjamin vs. Coventry, 19 id. 343.) There were, indeed, 
 some exceptions to this rule; as, in the case of a lost instru- 
 ment, where a party was permitted to testify as to its loss. 
 {Chamberlain vs. Oorham, 20 Johns. 144.) But generally, the 
 mere fact of being a party to the record created a disability 
 beyond the power either of the party himself or of the adverse 
 parly, to remove. And this disability was the foundation of the 
 
366 NEW YOBK JUSTICE. 
 
 jurisdictionirif Chancery of bills of discovery in aid of suits at 
 law, and otherwise. 
 
 The rules on this subject in this State are now materially 
 changed. The change was first introduced by an act passed in 
 1847, {chap. 462,) the most important provisions of which have 
 since been incorporated in the Code. 
 
 The Code provides, (§ 389,) that no action to obtain a dis- 
 covery under oath, in aid of ihe jirosecution or defence of an- 
 other action, shall be allowed, nor shall any exammation of a 
 party be had, on behalf of the adverse party, except in the 
 manner prescribed by the Code. This ptovision not only takes 
 away the equitable jurisdiction which the Courts formerly had 
 of actions of discovery, but necessarily repeals all the statutory 
 enactments by which the plaintiff in an action to recover money 
 lost by betting and gaming, (1 R. 8. 664, § 19,) to recover ex- 
 cess of brokerage, {id. 709, § 4,) to set aside usurious contracts, 
 {id. 772, § 6; Laws of 1837, chap. 430, § 3,) to compel a dis^ 
 covery by judgment creditors, (2 R. 8. 174, § 39,) to discover 
 frauds in confessing judgments, {id. § 41,) or in executing as-' 
 signments or conveyances, {Laws of 1833, chap. 14, § 1,) could 
 require the defendant to answer under oath. 
 
 The Code, in the section following the one just cited, (^ 390,) 
 authorizes the examination of a party to the record, at the in- 
 stance of an adverse party, or of any one of several parties; 
 and in section 399, as recently amended, authorizes a party to 
 offer himself as a witness in his own behalf. These sections we 
 shall consider hereafter. 
 
 8. Interested witnesses.] There was formerly, also, a rule of 
 evidence, which excluded the testimony of interested witnesses, 
 whether their names appeared as parties upon the record or 
 not. (1 Greenl. on Ev. § 386.) The Code has likewise altered 
 this rule, and now, no person offered as a witness can be ex- 
 cluded by reason of his interest in the event of the action. 
 The mere fact that the name of a witness appeal's as a party 
 upon the record is not sufficient to exclude him, if it appears 
 affirmatively that he has no interest in the event of the suit. 
 {8afford vs. Lawi'ence, 6 Barb. 566.) A stockholder in a cor- 
 poration is a competent witness for the corporation notwith- 
 standing his interest; he is not a party to the action, nor a 
 person for whose immediate benefit it is prosecuted or de- 
 
EXAMINATION OF PARTIES. 367 
 
 j-T— — ■- 
 
 fended. {MorUgomery Go. Bank vs. Marsh, 3 8 eld. 481; 3 
 Corns. 489; 2 8andf. 690, 732; 7 How. 360.) And, in an action 
 against an executor for services rendered the deceased, a resid- 
 uary, legatee under the will is a competent witness for the exe- 
 cutor. {Weston vs. Hatch, 6 id. 443.) A husband is a competent 
 witness to prove the marriage, where his wife sues for her sepa- 
 rate property without joining him as a party. {Willis vs. Un- 
 derhill, 6 How. 396; hut see Hasdroolc vs. Vandervoort, 5 8eld. 
 153.) In an action on a note made by a firm consisting at the 
 time of three members, but since dissolved, one of the co-part- 
 ners, who is not joined as a defendant in the action, is a com- 
 petent witness for the other co-partners, to defeat a recovery. 
 The suit is not defended for the immediate benefit of the 
 witness. (10 JST. T. Legal Observer, 248.) And, since the 
 Code, an agent is a competent witness against his principal, 
 though the efiect of his evidence is to discharge himself from 
 a written contract which he has entered into in his own name, 
 and to charge his principal, {id. 40.) 
 
 Where a person who is directly interested in favor of the 
 plaintiff in a cause, is called and examined as a witness by the 
 defendant, the objection to his competency is thereby waived, 
 and he is made a witness generally in the cause. {Oomis. vs. 
 SiUteman, 10 Barb. 573.) 
 
 15. Examination op Parties. 
 
 It has already been stated that a party may call the adverse 
 party as a witness. The sections of the Code authorizing this 
 to be done are as follows: A party to an action may be ex- 
 amined as a witness, at the instance of the advetse party, or of 
 any one of several adverse parties, and for that purpose may 
 be compelled, in the same manner, and subject to the same 
 rules of examination, as any other witness, to testify, either at 
 the trial, or conditionally, or upon commission. (§ 390.) The 
 ■ examination, instead of being had at the trial, as provided m 
 the last section, may be had at any time before the trial, at the 
 option of the party claiming it, before a judge of the Court or 
 a county, judge, on a previous notice to the party to be ex- 
 amined, and any other adverse party, of at least five days, 
 unless, for good cause shown, the judge order otherwise. But 
 the party to be examined shall not be compelled to attend in 
 
368 NEW YORK JUSTICE. 
 
 1 ■ 
 
 any other county than that of his residence, or where he may 
 be served with a summons for his attendance. {Code, § 391.) 
 
 Considerable diversity of opinion has existed as to the extent 
 of the powers conferred by these sections in relation to the. ex- 
 amination of the parties to an action before trial. Thus, it has 
 been held, that a party could not compel the examination of an 
 adverse party before the issue in the action was joined; and 
 again, that such examination could not take place before issue 
 joined, unless by the special order of the Court, on cause 
 shown by affidavit. {Chichester vs. Livingston, 1 Code Rep. 
 {n. s.) 108; 8. C. 3 8andf. 718.) In other cases, on the con- 
 trary, it has been held, that a party to the suit might be exam- 
 ined as a witness before the joining of issue; {Miller vs; Matha; 
 2 Code Hep. 101;) and that the examination might be had vdth- 
 out obtaining an order, {id. 82; Taggard vs. Gardner, 2 Sandf. 
 669,) and without reference to the residence of the party to be 
 examined, or to the probability of his being able to attend the 
 trial, {id. 667; 1 Code Rep. 95; Partin vs. ThacJcstone, 2 id. 
 66.) These cases are apparently in conflict. - Those which have 
 held that the examination could not be had until after issue 
 joined, arose in the Supreme Court, and one of them was a de- 
 cision at chambers. The other cases arose in the Superior Court 
 of the city of New York, and the decisions are represented. to 
 have been concurred in by all the judges of that Court. With- 
 out attempting to reconcile these different views, those of the 
 latter Court would seem to be justified by the language of the 
 Code, which provides that the examination, instead of being had 
 at the trial, may be had at any time before the trial, at the 
 option of the party claiming it. (§ 391.) 
 
 If the party is out of the State, his testimony may be taken 
 by commission. (1 Code Rep. 28; Broclcway vs. Stanton, 2 
 Sandf. 640.) 
 
 It has been held that it is unnecessary to obtain an order for 
 fhe examination of the adverse party; {id. 669; supra.;) that it 
 is sufficient to give him a notice of at least five days, requiring 
 him to appear and be examined; and that the only case in which 
 the order is necessary is where the party seeking the examina-. 
 tion wishes it to be had on a shorter notice than five days, {id.) 
 It is thought, however, to be most prudent to obtain the order, 
 for the reason that it gives the party obtaining it many.inde- 
 
EXAMINATION OF PARTIES. 369 
 
 pendent advantages, particularly with reference to future pro- 
 ceedings, should the party notified neglect or refuse to attend. 
 {Draper vs. Henningsen, 1 Bosw. 611.) 
 
 The notice must be served upon the party to lie examined 
 and upon every other adverse party, and should state the con- 
 sequences of a non-attendance, as hereafter specified. {Ander- 
 son vs. Johnson, 1 Gade Rep. 95; 8. O. 1 Sandf. 713.) The 
 party to be examined should be served with a subpoena, in ad- 
 dition to the order and summons, (2 Sandf. 669; swpra,) and 
 be paid or tendered the usual fees of a witness. (1 Code Hep. 
 95; 1 Sandf. 713; supra.) 
 
 The examination may be had in a county other than the one 
 in which the party resides, if the order or notice is served upon 
 him in such other county, {id.) 
 
 The party thus to be examined may be compelled to attend 
 in the same manner as a witness who is to be examined condi- 
 tionally; and the examination must be taken and filed by the 
 judge in like manner, and may be read by either party on the 
 ti-ial. {Code, § 392.) 
 
 If a paTty refuses to attend and testify, either at the trial or 
 whenever else required, he may be punished as for a contempt, 
 and his complaint, answer, or reply, may be stricken out. {Code, 
 § 394.) A joint defence, however, will not be stricken out be- 
 cause one defendant refuses to appear and testify. (1 Sandf. 
 713; supra.) 
 
 The party thus examined becomes a general witness in the 
 cause, {Ainsworth vs. Bolmer, id. 688,) and his examination is 
 conclusive upon the party 1;aking it, until it is rebutted by ad- 
 verse testimony, {Sheldon vs. Weeks, 7 New York Legal Obs. 
 57,) which may be done. {Code, \ 393.) The following is a 
 leading case on the subject: In an action in a Justice's Court, 
 the plaintiff called the defendant as a witness, and then called 
 witnesses to contradict him. Judgment was given for the plain- 
 tiff. The defendant appealed, on the ground that, as the plain- 
 tiff had called him, he became the plaintiff's witness, and it was 
 not competent for the plaintifl" to contradict his own witness. 
 The appellate Court affirmed the judgment, remarking that 
 " the Code, which allows the examination of a party, permits 
 his testimony to be rebutted by adverse testimony. This can 
 only mean, that the party calling him may examine other wit- 
 24 
 
370 NEW YORK JUSTICE. 
 
 nesses to rebut the testimony of such party. Adverse testimony 
 means testimony opposed and contrary to the testimony of the 
 party examined, 'jphis cannot mean that he may c^U witnesses 
 to contradict himself; and, if not, then there is no other mean- 
 ing to be given to it, than that the party calling his adversary 
 may contradict him if he thinks proper." (Armstrong vs. Clark, 
 2 Code Rep. 143.) 
 
 ■ A person for whose immediate benefit the action is prose- 
 cuted or defended, though not a party to the action, may be 
 examined as a witness, in the same manner, and subject to the 
 same rules of examination, as if he were named as a party. 
 (Code, § 396.) 
 
 A party examined by an adverse party, as above provided, 
 may be examined on his own behalf, subject to the same rules 
 of examination as other witnesses. But, if he testify to any 
 new matter, not responsive to the enquiries put to him by the 
 adverse party, or necessary to explain or qualify his answers 
 thereto, or discharge when his answers would charge himself, 
 such adverse party may offer himself as a witness, on his. own 
 behalf, in respect to such new matter, subject to the same rules 
 of examination as other witnesses, and shall be so received, 
 {id. § 395.) "Where a party, examined at the instance of the 
 adverse party, testifies to new matter in answer to a question 
 put to him by the Court, the adverse party is entitled to offer 
 his own evidence in respect to such new matter. {Myers vs. 
 McCarthy, 2 Sand. 399.) 
 
 A party may be examined on behalf of his co-plaintiff, or of 
 a co-defendant, as to any matter in which he is not jointly in- 
 terested or liable with sucja co-plaintiff or co-defendant, and as 
 to which a separate, and not joint verdict or judgment can be 
 rendered. And he may be compelled to attend in the same 
 manner as at the instance of an advei'se party; but the examin- 
 ation thus taken cannot be used in the behalf of the party 
 examined.^ And whenever, in the case mentioned in sections 
 three hundred and ninety and three hundred and ninety-one, 
 one of several plaintiffs or defendants who are joint-contractors, 
 or are united in interest, is examined by the adverse party, the 
 other of such plaintifls or defendants may offer himself as a 
 witness to the same cause of action or defence, and shall be so 
 received. {Code, ^ 397.) The last preceding clause extends to 
 
EXAMINATION OF PARTIES, 371 
 
 all who are sued as. joint contractors, although the defence of 
 some of the defendants may be that there was, in fact, no joint 
 contract. {Oomstock vs. Moe, 2 Code Rep. 140.) 
 
 Where, in an action of trover against two defendants, one 
 of them pleads, and the other suffers judgment fey default, the 
 latter is, under the Code, a competent witness for the plaintiff 
 against his co-defendant. {Thompson vs. Blanchard^ 4 Corns. 
 303.) And where, on the trial of an action against two per- 
 sons for a joint assault, no evidence appears against one of 
 them, he is entitled to be discharged, for the purpose of being • 
 examined as a witness for his co-defendant. But if there be 
 any evidence, however slight, against the defendant sought to 
 be discharged, it must go to the jury with the evidence against 
 the other defendants. (Lobar vs. Koplin, id. &47.) 
 
 ■'Where a defendant cannot. give any evidence but that which 
 must, of necessity, operate in his own favor, as well as in favor 
 of his co-defendants, he is not a competent witness. Thus, in 
 an actioff against several executors, one of the defendants can- 
 not be a witness for his co-defendants. [Fort vs. Gooding, 9 
 Barh. 371.) The plaintiff cannot, by joining as defendants in 
 an action, parties who, if separate actions had been brought 
 against them for the same matter, would have been competent 
 witnesses for each other, deprive them of the benefit of each 
 other's testimony; as, in an action on a joint and several pro- 
 missory note, or bond, against two makers, where one is surety 
 for the other,"^ and the latter is offered as a witness on behalf 
 of the. former. (8 Barb. 664; Mayor of N. T. vs. Price, l 
 Sandf. 616; 8. O. 1 Code Rep. {n. s.) 85.) 
 
 The importance of some of these provisions respecting the 
 examination cf parties, is to a certain extent qualified by the 
 provisions of section three hundred and ninety-nine of the 
 Code, as amended in 1865, chap. 616: 
 
 The section as amended reads as follows: 
 
 & 399. A party to an action or special proceeding, in any and 
 all courts, and before any and all tribunals, and before any and 
 all officers acting judicially, may be examined as a witness on 
 his own behalf, or in behalf of any other party, in the same 
 manner, and subject to the same rYiles of examination as any 
 , other witnesses; provided, however, that the assignor of a thing ( 
 in action shall not be examined in behalf of said party, nor , 
 
372 NEW YORK JUSTIOB. 
 
 shall 'a party to an action be examined in his own behalf, in 
 respect to any transaction or communication had personally by 
 said assignor or said party, respectively, with a deceased person, 
 against parties who are the executors, administrators, devisees, 
 heirs-at-law, next of kin, or assignees of such deceased person, 
 where they have acquired title to the cause of action immedi- 
 ately from said deceased person, or have been sued as such by 
 the executors, administrators, devisees, heirs-at-law, next of ]dn 
 or assignees. But where such executors, administrators, devi- 
 sees, heirs-at-law, next of kin or assignees, shall be examined on 
 their own behalf in regard to any conversation or transaction 
 h^d between the deceased person and said assignor, or said 
 party, respectively, then the said assignor or the said party may 
 be examined in regard to such coflversatipn or transaction, but 
 not in regard to any new matter. But if the testimony of a 
 party to the action or proceeding has been taken, and he shall 
 afterwards die, and after his death the testimony so taken shall 
 be used upon any trial or hearing, in behalf of his flkecutors, 
 administrators, devisees, heirs-at-law, next of kin or assignees, 
 the other party or the assignor of a thing in action shall be a 
 competent witness, as to any and all matters to which the testi 
 mony so taken relates, notwithstanding anything in this section 
 contained to the contrary thereof. And , nothing contained in 
 section eight of this act shall be held or construed to affect or 
 restrain the operation of this section. 
 
 16. Mode op Examining Witnesses. 
 (1.) Privilege of witnesses. 
 
 The statute provides, (2 R. S. 405, ^ 71,) that no'competent 
 witness in a cause shall be excused from answering a question 
 relevant to the matter at issue, on the ground merely that the 
 answer to such question may establish or tend to establish that 
 such witness owes a debt, or is otherwise subject to a civil suit; 
 but that this shall not be construed to require a witness to give 
 any answer which will have a tendency to accuse himself of any 
 crime or misdemeanor, or to expose him to any penalty or for- 
 feiture, nor in aiiy respect to vary or alter any other rule 
 respecting the examination of witnesses. 
 
 The cases in which the question of a witness's privilege can 
 arise, are distinguisl^able into the following classes: 
 
MODE OF EXAMINING WITNESSES. 378 
 
 ■ -_ ; — r— ; 
 
 1. Wjiere the witness, by answering, would subject himself 
 
 tO' a civil action, or pecuniary loss, or charge himself with a 
 debt. la such case, the statute declares that the witness shall 
 not be excused. (2 B. 8. 405, § 71; Matter of Kip, 1 Patffe, 601.) 
 . 2. Where it appears that the answer will have a tendency to 
 expose the witness to a penalty or forfeiture, or to accuse him 
 of any crime or misdemeanor. In such case, the statute and 
 the authorities are equally clear that the witness is not bound 
 to answer. (13 Johns. 82; 6 Cow. 254; 3 Hill, 564; 4 id. 468; 
 2 Pen. 155; 1 Corns. 83; Vilas vs. Jones, id. 274.) The wit- 
 ness may claim the protection of his privilege, at any stage of 
 the inquiry, whether he has already answered the question in 
 part or not at all. (1 Greenl. on Ev. \ 454.) He cannot be 
 required, at any stage of the examination, to disclose what will 
 show, or what has a tendency to show, that he is guilty of a 
 crime for which he is yet liable to be punished. {People vs. 
 Mather, 4 Wend. 229;) Nor is the witness bound to answer , 
 how he testified on a former trial, when his answer may form a 
 link in a chain of c^'idence that would convict him of perjury. 
 (^ id. 667; People vs. Bodine, 1 Den. 281.) A person called 
 as a witness may not only object to testify to the main fact 
 which would subject him to a penalty or forfeiture, but may 
 also refuse to disclose any one of a series of facts which 
 together would expose him to such penalty or forfeiture. 
 [Henry vs. Salina Bank, 1 Corns. 83.) Whether the answer 
 may tend to criminate the witness, is a point upon which the 
 court are bound to instruct him. (6 Coiv. 254; 4 Wend. 229; 
 Close vs. Olney, 1 Den. 319.) 
 
 To make the statute which imposes a limitation to the time 
 within which an indictment may be found, a bar to the witness's 
 claim of privilege,. it must be shown affirmatively, that no pro- 
 ceedings were commenced against him, or, if commenced, that 
 they were discontinued, so that the statute will afford him a 
 complete protection, (2 id. 155; 1 Corns. 83, supra.) If this 
 is shown, the witness is bound to answer. (1 Greenl. on Ev. 
 i452.) 
 
 £.' 3. Where the answer, though it will not.exiDOse the witness 
 to any criminal prosecution, or to a penalty or forfeiture, has a 
 4irect tendency to degrade his character. On this point there 
 has been a diversity of opinion. Where the transaction to 
 
374 NEW YORK JUSTICE. 
 
 which the witness is interrogated forms a part of the issue to 
 be tried, it seems he is bound to give the evidence, however 
 strongly it may reflect upon his character. (Phillips & Anioe 
 on Ev. 917.) But where the question is collateral, and its sole 
 object is to impair the credibility of the witness, the weight of 
 authority appears to be in favor of allowing the Witness his 
 privilege, (id. 918; Lohman vs. People, 1 Corns. 379.) So, 
 if a witness is askpd whether he has not been convicted of a 
 felony, he may refuse to answer. (People vs. Herrich, 13 Johns. 
 82.) And such a question is also objectionable for irrelevancy, 
 for the answer to it would not be the best evidence of the fact, 
 nor that which the statute requires. (Ante, p. 331.) 
 
 A witness may be asked a question, the answer to which will 
 criminate him, and, if he has no objection, may answer it. 
 (Southard vs. Rexford, 6 Cow. 254.) The privilege of the wifc- 
 ness is his own, and neither party can object to his waiving it. 
 (3 Hill, 395; Ward vs. People, 6 id. 144.) If he chooses to 
 answer, he is bound to answer everything relative to the trans- 
 action. If he declines answering, no inference of the truth of 
 the fact is permitted to be drawn from the refusal. (1 Crreenl.. 
 on Ev. \ 451.) 
 
 (2.) Directsexamination. 
 
 When a witness has been duly sworn, and all questions rela- 
 / tive to his competency h^fe been decided, he is first examined 
 by the party producing him; which is called his direct examin- 
 ation. He is also interrogated as to the same matters by the 
 adverse party; which is called his cross-examination. These 
 examinations are conducted orally, in open Court, in the pres- 
 ence of the parties and their counsel, and of the Justice and 
 jury, who have thus an opportunity of observing the under- 
 standing, demeanor, and inclination of the witnesses. 
 
 The first general rule to be observed in the examination of a 
 witness is, that the party by whom he is called cannot ask him 
 leading questions, that is, questions suggesting the answer 
 desired. (Phillips & Amos on Ev. 884; People vs. Mather, 
 4 Wend. 229.) This rule proceeds upon the supposition, that 
 the witness is favorable to the party calling him. Where such 
 is not the fact, and the witness appears to be hostile, the rule is 
 relaxed, and a more searching mode of examination is permit- 
 
MODE OF EXAMINING WITNESSES. 375 
 
 ted, partaking of the character of a cross-examination. Ques- 
 tiohs which are intended merely as introductory, and which, 
 whether answered in the affirmative or negative, will not be 
 conclusive upon any of the points in the case, are not liable to 
 the- objection of being leadins;. {Phillips & Amos on Ev. 
 888.) " ■ 
 
 In some cases, however, leading questions are permitted on a 
 direct examination. Thus, where an omission in the testimony 
 of the witness is caused by a want of recollection, which a sug- 
 gestion may assist, such suggestion is permittedi^to be made. 
 As, where a witness called to prove a partnership, is not able, 
 at the moment, to specify the several names of the partners, a 
 number of names containing those oi, the partners, among 
 others, may be suggested to him, for the assistance of his 
 memory. (1 8tarkie JST. P. 100.) Whether a leading ques- 
 tion should be put is a matter resting in the discretion of the 
 Justice, and to be decided by him as the circumstances of the 
 case, and the character and disposition of the witness, may 
 dictate. (1 Oreenl. on Ev. § 435; 17 Pick. 498.) 
 . The most direct mode of assisting the memory of the witness 
 is, by allowing him to look at written memoranda, which he 
 has before seen, relating to the facts in question. There seem 
 to be three classes of cases in which such memoranda may be 
 referred to or introduced: 
 
 First. Where the memorandum is used only to revive or as- 
 sist the memory of the 'witness, and to bring to his mind a 
 recollection of facts. In such case, the rule is well settled, that 
 the witness may use his memorandum to refresh his recollec- 
 tion. But it is not evidence to go to the jury, even though he 
 swears he thinlvs it is correct. He may refresh his memory, 
 and then, if his recollection recalls the transaction, that recol- 
 lection is testimony to go to the jury. He must be conscious 
 of the reality of the matters he swears to, at the time he testi- 
 fies; and it is not sufficient that his mind recurs to the memo- 
 randum, and that he believes that to be true. (3 Wend. 142; 
 5 id. 301; 11 id. ill; 1 Barb. 526; 2 Sandf. 269; Rowland 
 vs. Willetts, 5 id. 219.) 
 
 Second. Where the witness recollects having seen the writing 
 .before, and, though he has no independent recollection of the 
 facts mentioned in it, remembei:s that, at the time he saw it, he 
 
376 NEW YORK JUSTICE. 
 
 knew the contents to be correct. Thus, where original entries'/ 
 made in the course of business, are produced, and the persoK 
 who made them, or saw them made by another, knowing them; 
 at the time to be true, testifies that he made them, or saw them 
 made, and believes them to be true, although he has, at the 
 time of testifying, no recollection of the facts set forth in the 
 entries, such entries are admissible. (16 Wend. 586; 19 id. 
 162; 2 Hill, 531; 1 Barb. 526; but see Halsey vs. SinsAavgh^. 
 15 N. Y. 485.) But the entries themselves must be produced. 
 (1 Qreenl. on-Ev. \ 437.) 
 
 Third. Where the writing brings to the mind of the witness, 
 neither any recollection of the facts mentioned in it, nor any 
 recollection of the writing itself, but nevertheless enables him 
 to swear to. a particular fact, from the conviction of his mind 
 on seeing a writing which he knows to be genuine. {^Phillips 
 & Amos on Ev. 893.) Of this class the usual illustration is, 
 where a deed is produced, and the witness says: "Here is my 
 name, as a subscribing witness to the deed; I remember nothing 
 of placing it there; but I never would have done so, had I not 
 seen it executed." In such case, the deed is sufficiently provexL 
 (16 Wend. 598; 19 id. 167; 8 Pick. 143.) 
 
 The opinion of a witness is, in general, not evidence; he must 
 speak to facts. Nor is his belief admissible, however confident 
 he is, unless he recollects facts. (19 id. 477; Bvtler vs. Ben- 
 son, 1 Barb. 526.) The opinions of a witness as to the amount 
 of damages sustained by the plaintiff in an action are always 
 incompetent and inadmissible. (3 Wend. 425; 7 id. 136; 4 
 Baa-b. 236, 261; 4 Den. 311; Morehouse vs. Matthews, 2 Corns. 
 514.) 
 
 There are exceptions, however, to the rule that the opinions 
 of a witness are incompetent, where the question is one of 
 science or skill, or has reference to some subject upon which 
 the jury are supposed not to have the same degree of know- 
 ledge as the witness. (4 Den. 370; Griffin vs. Rice, 1 Hilt. 
 184.) Witnesses may speak as to the value of personal pro- 
 perty or labor, where it appears that they have peculiar sources 
 of knowledge to guide them on the subject. Thui, it is proper 
 to ask a witness what a cow, which he has seen and knows, 
 would be worth, if she gave but four quarts of milk per day. 
 (Joy vs. Hopkins, 6 Den. 84.) I And so, a builder may be asked, 
 
MODE OF EXAMINING WITNESSES. 377 
 
 when, in his opinion, a house finished at a certain time, will be 
 fit for occupation. (7 Wend. 72; Smith vs. Ghgerty, 4 Barb. 
 614.) In the one case the opinion of the witness is admissible, 
 because he has had an opportunity which the jury have not had, 
 of seeing and knowing the animal, and therefore, can judge of 
 her value better than they. In the other case, the question is 
 proper, because it calls for the opinion of the witness in relar 
 tion to matters, a knowledge of which is, peculiar to his pro- 
 fession as a builder. 
 
 Another general rule to be observed in the examination of a 
 witness is, that the party calling him is not permitted to im- 
 peach his general reputation for truth, or to impugn his credi- 
 bility, by general evidence tending to show that he is unworthy 
 of belief. {Phillips & Amos on Ev. 902; 1 Greenl. on JEv. 
 ^442; 5 Wend. 305; 5 Den. 112; Hunt vs. Fish, 4 Barb. 324.) 
 But a party may prove, by other evidence, the ^truth as to a 
 material fact relevant to the issue in the cause, though it may 
 collaterally have the effect of discrediting his own witness. 
 (2 Campbell, 556; 5 Wend. 301; 12 id. 105; 21 id. 90; 5 Den. 
 112; 4 Barb. 324; Thompson vs. Blanchard, 4 Corns. 303.) 
 And this privilege is allowed, whether a witness is forced upon 
 the party by the law, as in the case of a subscribing witness to 
 a deed, or is voluntarily selected to give evidence. 
 
 Whether it is competent for a party to prove that a witness 
 whom he has called, and whose testimony is unfavorable to his 
 cause, had previously stated the facts in a different manner, is 
 a question upon which there exists some diversity of opinion. 
 The conclusion arrived at in the elementary treatises is in favor 
 of permitting the party to show that the evidence has taken 
 him by surprise, and is contrary to what the witness had stated 
 before the trial. (1 Greenl. on Ev. ^ 444; Phillips <& Amos 
 on Ev. 905.) But in this State it is settled, that a party cannot 
 discredit his own witness, by showing that he had previously 
 made statements contradictory to, or inconsistent with, his evi- 
 dence. (4Z)ew. 112; 7 Hill, 32i; i Barb. 324:; but see Thomp- 
 son vs. Blanchard, supra:.) 
 
 (3.) Cross-examination. 
 
 When a witness has been examined in cMef, the opposite 
 pariyis^ allowed to cross-examine him, and, as a cross-examina- 
 
378 NEW YORK JUSTICE. 
 
 tion affords one of the best securities against incomplete, gar- 
 bled, or false evidence, great latitude is allowed in putting the 
 questions. It is not easy for a witness, who is subjected to the 
 test of a rigid cross-examination, to impose upon the Justice or 
 the jury; for, however artful the fabrication of a falsehood may 
 be, ft can rarely embrace all the circumstances to which such a 
 cross-examination may be extended. {^Phillips <& Amos on Ev. 
 908.) Indeed, so highly is this power of cross-examination 
 valued, that if, through the misconduct of the witness, or the 
 fault or negligence of the party calling him, the right to exer- 
 cise it is taken away, the direct examination will not be allowed 
 to stand as evidence. (25 Wend. 651; Forrest vs. Kissaim, 7 
 Hill, 463.) 
 
 If a witness is called by a party merely for the purpose of 
 producing a written instrument, which is to be proved by an- 
 other witness, he need not be sworn, and, if not sworn, will not 
 be subject to cross-examination. (1 Adolphus & Ellis, 48.) 
 If the'witness is sworn, and gives some evidence, howeverformal 
 the proof may be, he is made a witness for all purposes, and 
 may, therefore, be cross-examined. {Jackson vs. Varick, 7 
 Cow. 238.) 
 
 Where the adverse party chooses to exercise the right of cross- 
 examining a witness, he cannot introduce through him any proof 
 which would not have been legal, had he originally produced 
 him; (Jackson vs. Son, 2 Caines, 178;) nor can he ask him 
 questions which assume facts to be proved that are not proved; 
 {People vs. Mather, 4 Wend. 229;) nor can he cross-examine 
 him as to a distinct collateral matter, for the purpose of after- 
 wards impeaching his testimony by contradicting him; (5 id. 
 301; Harris vs. Wilson, 7 id. 57;) and, if the witness is ques- 
 tioned as to any such collateral matter, and answers, his answer 
 is conclusive, and cannot be contradicted, {id.; 4 Den. 502; 
 Allen vs. Bodine, 6 Barb. 388.) 
 
 It is, however, prdper to ask a witness whether he has not on 
 some former occasion given a different account of the matter of 
 fact to which he has already testified, in order to lay a foundar 
 tion for afterwards impeaching him. (1 Greenl. on Ev. § 567.) 
 Indeed, if it is intended to impeach him by proof of prior state- 
 ments inconsistent with his present testimony, it is necessary to 
 interrogate him as. to those statements, and to call ihis attention 
 
MODE OF EXAMINING WITNESSES. 379 
 
 to the time, place, and person, when, where, and to whom they 
 are alleged to have been made. (17 Wend. 419; 2 Barb. 210; 
 8jpragite vs. Caldwell, 12 Barb. 516.) And the fact that the 
 witness was examined under a commission, does not vary the 
 rule, though the statements are alleged to have been made after 
 such examination. (19 Wend. 437; Brown vs. Kimball, 25 id. 
 259.) Nor is it irrelevant to inquire of a witness whether he 
 does not entertain, or has not ex|)ressed, feelings of hostility 
 towards the person against whom he is called. {8tarh vs. The 
 People, 5 Den. 106.) If he denies having expressed such feel- 
 ings, and his attention has been properly called to the time, 
 place, and person, he may be contradicted. (7 Connecticut Hep. 
 66.) • 
 
 . Leading questions are admitted on the cross-examination of a 
 witness, and he may be led immediately to the point on which 
 his answers are required. If he betrays a zeal against the party 
 cross-examining him, or shows an unwillingness to speak fairly 
 and impartially, he may be questioned with minuteness as to 
 particular facts, or even particular expressions. There can be 
 no danger in leading too much, where the witness is obstinately 
 determined not to follow. On the other hand, instances fre- 
 quently occur, where the witness is adverse to the party calling 
 him, and leans strongly to the other side, waiting for a hint to 
 shape a favorable answer. In such a case, counsel should not 
 be allowed to put into the mouth of the witness the very words 
 of the desired answer. {Phillips & Amos on Ev. 913.) 
 
 In cross-examining as to the contents of a letter, a witness 
 cannot be asked whether he wrote a letter with such and such 
 contents. He must first have the letter shown to him, and say 
 whether he wrote it. If he admits that he did, then the letter, 
 being the best evidence, must speak for itself. And, if a witness 
 is asked whether he has made rejaresentations of a particular 
 nature, counsel may be required to state whether written or 
 verbal representations are referred to; and if the former, the 
 inquiry should not be allowed, because the writing is the best 
 evidence. (1 Greenl. on Ev. § 465.) 
 
 If the memory of a witness has been refreshed by a writing 
 put into his hands, the adverse party may cross-examine the 
 witness as to the paper, without malcing it his own evidence in 
 the cause. (1 Greenl. on Ev. ^ 466.) But if the writing was 
 
380 NEW YORK JUSTICE. 
 
 an entry in a' book, the adverse party cannot cross-examine as 
 to other entries in the book, without making them his own evi- 
 depce. (id.) 
 
 \ (4.) Impeachment of witnesses. 
 
 After a witness has been examined in chief, his credit may 
 be impeached in several ,ways: 
 
 First. The party against whom the witness is called, may 
 disprove the facts stated by him, or may examine other wit- 
 nesses as to his general character. In impeaching the credit of 
 a witness, the examination must be confined to his generaj 
 character, and cannot be extended to particular facts. (PhilUps 
 & Amos on Ev. 923; 1 Oreenl. on Ev. § 461; Buller's N. P. 
 296.) The reason is, that if evidence of particular facts were 
 admitted, it would be impossible for the witness, having no 
 notice of what would be sworn against him, to come prepared 
 to give an answer to it; and thus his character might be vilified 
 without his having any opportunity of vindicating it. {Phillips 
 S Amos on Ev. 924.) 
 
 The general character of every witness may be drawn in 
 qnestion by the party against whom he is called; and this, even 
 though the party calling him has interrogated him only as to 
 the character of another witness. (5 Een. 106, supra.) The 
 impeaching witnesses are not allowed to be selected from among 
 those who are comparatively strangers to the former witness, 
 nor from among those who have been sent to the locality of- the 
 witness's residence, to inquire what his reputation is. Such 
 persons cannot show the general character of the witness, as 
 that phrase is understood in the law. General character means, 
 or rather is the estimation in which a person is held in the com- 
 munity where he has resided; and therefore, as a general rule, 
 the members of that community are the only proper witnesses 
 to testify as to such character. {Douglass vs. Toucey, 2 WexiA. 
 352.) 
 
 The proper mode of examination is, to inquire of the witnesses 
 whether they have the means of knowing the general character 
 of the foirmer witness, and whether, from such knowledge, they 
 would believe him on oath. {People vs. Mather, 4 id. 229.) 
 Even if the witnesses do not know the reputation of the former 
 witness for veracity, they may, if they know his genei-al char- 
 
MODE OP EXAMINING WITNESSES. 381 
 
 acter, be asked whether, from that general character, they would 
 believe him on oath. {Johnson vs. People, 3 Hill, 178.) Proof 
 that a witness's character, which has been slightly impeached, 
 was bad four years ago, is admissible; for there is a strong 
 probability, that the reputation of the witness, if bad four years' 
 since, continues bad, and persons who have not known him or 
 his reputation within that time, are competent to prove his rep- 
 utation at that time. (19 Wend. 192; Sleeper vs. Van Middles- 
 worth, 4 Den. 431.) 
 
 In answer to all such evidence against the character of a wit- 
 ness, the opposite party may go into a cross-examination, to 
 ascertain the grounds of the unfavorable opinions; and, in doing 
 that, he may interrogate the witnesses as to their opportunities 
 of knowing the character of the impeached witness, how long 
 and how generally the unfavorable reports have prevailed, and 
 from what particular individuals they heard them. {People vs. 
 Mather, 4 Wend. 258.) 
 
 Second. The credit of a witness may be impeached, by proof 
 that he has made statements out of Court, contrary to what he 
 has testified on the trial. {Phillips & Amos on Ev. 925.) But 
 it is only inr regard to such matters as are relevant, that the wit- 
 ness can be contradicted; and as vve have seen, {Ante, p. 378,) 
 before this can be done, it is necessary, in the case of verbal 
 statements, to call the attention of the witness to the time, 
 place, and person, when, where, and to whom the contradic- 
 tory statement is alleged to have been made. (19 Wend. 437; 
 25 id. 259; Palmer ys. Haight, 2 Barb. 210.) It is not enough 
 to ask the witness whether he has ever said so and so, and 
 whether he has always told the same story, but his attention 
 must be called to the particular conversation in which the con- 
 tradictory statement was made. (1 Greenl. on Ev. § 462.) -The 
 declarations of a witness, after he has left the stand, are ad- 
 missible to impeach him. 
 
 (5.) Re-direct examination. 
 
 After a witness has been cross-examined respecting a former 
 statement made by him, the party who called him has a right 
 to re-examine him as to the same matter. {Phillips & Amos 
 on Ev. 940; 1 Greenl. on Ev.^^ 467.) The object of this ex- 
 ^inina,tion.is, to give the witness an opportunity of showing the 
 
382 NEW TOEK JUSTICE. 
 
 consistency of his statements, and of vindicating his character. 
 The counsel calling the witness has a right, upon such re-exam- 
 ination, to ask all questions which may be proper to draw forth 
 an explanation of the sense and meaning of the expressions 
 use4 by the witness on cross-examination, if they are in them- 
 selves doubtful, and also an explanation of the motives by 
 which the witness was induced to. use those expressions; but 
 he has no right to go farther, and to introduce matter new in 
 itself, and not suited to the purpose of explaining either the 
 expressions or the motives of the witness. The re-examination 
 is to be confined to showing the true color and bearing of the 
 matter elicited by the cross-examination. New facts or new 
 statements, not tending to explain the witness's previous an- 
 swers, ought not to be allowed. {Phillips & Amos on Ev. 940; 
 1 Qreenl. on Ev. § 467.) If the counsel choose to cross-examine 
 a witness as to facts which are not admissible in evidence, the 
 other party has a right to re-examine him as to the evidence so 
 given, {id. § 468.) 
 
 (6.) Sustaining im/peached witnesses. 
 
 For the purpose of corroborating a witness whose veracity 
 has been impeached, it has 'been deemed reasonable to admit 
 general evidence, that he is a man of strict integrity, and of a 
 scrupulous regard for truth. 
 
 The general rule is, that a party can ^ive evidence of the 
 good character of his witness, oialy where impeaching witnesses 
 have been called on the other side — that is, such as have 
 spoken against his general character, and not such as have 
 merely given a diflferent account of the facts, or proved that he 
 has made declarations out of Court inconsistent with his testi- 
 mony. (23 Wend. 50; 3 Hill, 309; 8tarks vs. People, 5 Den. 
 106.) But evidence that the witness has made statements out 
 of Court, consistent Vith his testimony, is inadmissible. {Robb 
 vs. HacJcley, 23 Wend. 50.) And evidence that the reports 
 against a witness, whose general character has been impeached, 
 originated from a particular party or body' of men, and were 
 founded on a particular transaction, which had been intention- 
 ally perverted to injure his character, is also inadmissible. {But 
 see Clapp vs. Wilson, 5 Den. 285.) ^ 
 
 If a witness, called to sustain another, testifies that he ne\er 
 
PUBLIC DOCUMENTS. 383 
 
 heard Ms character for truth and veracity spoken of, but that 
 he knows him, and the persons with whom he has associated, 
 he may be asked whether he would believe him upon oath. 
 {People vs. Davis, 21 Wend. 309.) , 
 
 If a witness is impeached and sustained by an equal number 
 of witnesses, it is proper for the Justice to state to the jury, 
 that the credibility of the witness is a matter for them to 
 decide; (14 id. 105; Bakeman vs. Rose, 18 id. 146;) but it can 
 very rarely be proper for him to state to them that they are 
 not at liberty to believe a witness. {Conrad vs. Williams, 6 
 mil, 444.) 
 
 17. Public Documents. 
 
 Writings are divisible info two classes, namely, public and 
 private. The former consist of the acts of plublic functionaries, 
 in the executive, legislative, and judicial departments of govern- 
 ment. Public wi'itings are either judicial or not judicial; and 
 with respect to the means and mode of proving them, they m^y 
 be classed into those which are of record, and those which are 
 not of record. 
 
 Where writs, or other papers in a cause in a Court of Record, 
 are officially in the custody of an officer of the Court, he may 
 be compelled by a rule of Court to allow an inspection of them; 
 but, in regard to the records of inferior tribunals, the right of 
 inspection is more limited. As all persons have not necessarily 
 an interest in them, it is not necessary that they should be open 
 to the inspection of all, without distinction. The party, there- 
 fore, who wishes to inspect the proceedings of a Justice's Court 
 should apply to the Justice, showing that he has some interest 
 in the document and that he requires it for a proper purpose. 
 
 There are records which partake both of a public and pri- 
 vate character, and are treated as the one or the other, according 
 to the relation in which the applicant stands to them. The 
 books of a corporation are public with respect to its members, 
 but private with respect to strangers. 
 
 We now proceed to consider the mode of proving public 
 dbcuments, beginning with those which are not judicial. 
 
 (1.) Public documents not judicial. 
 The Code, § 426, provides, that printed copies in volumes, 
 of statutes, code, or other written law, enacted by any other 
 
884 NEW YORK JUSTICE. 
 
 State, or Territory, or foreign government, purporting or 
 proved to have been published by the authority thereof, or 
 proved to be commonly admitted as evidence of the existing 
 law in the Courts and judicial tribunals of such State, Territory, 
 or government, shall be admitted by the Coui-ts and officers of 
 this State, on all occasions, as presumptive evidence of such 
 laws. The unwritten or common law of any other State, or 
 Territory, or foreign government, may be .proved as facts by 
 parol evidence; and the books of reports of cases adjudged in 
 their Courts may also be admitted as presumptive evidence of 
 such law. t 
 
 All laws passed by the Legislature of this State may be read 
 in evidence from the volumes printed under the direction of the 
 Secretary of State. {Laivs of 1843, chap. 98, § 82; Wood vs. 
 Je^erson Co. Bh. 9 Cow. 194.) Any person residing in this 
 State may publish the whole or any part of the Revised Statutes; 
 but, to entitle any copy of a law so published, to be read in 
 evidence, there must be contained in the book or pamphlet a 
 printed certificate of the Secretary of State, or of two of the 
 revisers, that the copy is a correct transcript of the text of the 
 Revised Statutes as published, except such typographical errors 
 in the original as may be corrected in such copy, and except 
 such parts as have been altered by acts of the Legislature; and 
 that, with respect to such parts, it conforms to the acts by which 
 such alterations have been made. {Laios of 1830, chap. 259.) 
 
 The Courts of this State take judicial notice of the civil di- 
 visions of this State created by statute, (4 Cow. 345; lid. 429; 
 Chapman vs. Wilher, 6 Hill, 475,) and of the Constitution of 
 the United States, and the acts of Congress in pursuance thereof, 
 (10 Wend. 75; 12 id. 311; 14 «d^07; Bvt see U. S. Bankrs. 
 Steai^ns, 15 Wend. 314.) But they do not take official notice 
 of the laws of other States. {Hosford vs. Nichols, 1 Paige, 220.) 
 It is a general rule that a party seeldng advantage from a foreign 
 law, or from the law of another State of the Union, must prove 
 its existence, as matter of fact, by evidence. (22 Barb. 118; 
 Throop vs. Hatch, 3 Abbott, 23.) The journals of the L'egis- 
 lature may be proved by the copies printed by the authority 
 of either house. {Root vs. King, 7 Cow. 613.) 
 
PUBLIC DOCUMENTS. 385 
 
 (2.) Records and judicial writings. 
 
 Uecords are proved, either by the mere production of them, or 
 by a copy. Copies of records are either exemplifications, or 
 copies made by an authorized ofiicer, or sworn copies. Exem- 
 plifications are either under the great seal, or under the seal of 
 the particular Court where the record remains. (1 Oreenl. on ' 
 Ev. \ 501.) 
 
 In proving a record by^ a copy under seal, the great seal of a 
 State, and the seals of the Supreme Courts of Justice, and of all 
 Courts established by public statutes, are recognized without 
 proof. So, too, no extraneous proof is required of the seal of 
 any Department of State, or public office established by law, 
 and required or known to have a seal. {id. § 503.) 
 , The Constitution of the United States provides, (§1,) tfcat 
 full faith and credit shall be given, in each State, to the public 
 acts, records, and judicial proceedings of every other State, and 
 that Congress may, by general laws, prescribe the manner in 
 which such acts, records, and proceedings shall be proved, and 
 the elFect thereof. It has accordingly been enacted, (1 TJ. S. 
 Statutes at Large, 122,) that the acts of the Legislatures of the 
 several States shall be authenticated by having the seals of their 
 respective States affixed thereto; that the records and judicial 
 proceedings of the Courts of any State, shall be proved or ad- 
 mitted in any other Court within the United States, by the at- 
 testation of the clerk, and the seal of the Court annexed, if l^ere 
 be a seal, together with a certificate of the Judge, Chief Justice, 
 or presiding magistrate, as the case may be, that said attesta- 
 tion is in due form; and that the said records and judicial pro- 
 ceedings, authenticated rs aforesaid, shall have such faith and 
 credit given to them in every Court within the United States, 
 as they have by law or usage in the Courts of the State from 
 whence the said records are or shall be taken. These provi- 
 sions are, by a subsequent act, extended to the Courts of all Ter- 
 ritories subject to the jurisdiction of the United States. (2 id. 
 298.) 
 
 The mode of authentication thus provided by Congi-ess is not 
 exclusive of any other which the States may adopt. The judi- 
 cial proceedings referred to in the act of Congress are under- 
 stood to be the proceedings of Courts of general jurisdiction, 
 25 
 
386 NEW YORK JUSTICE. 
 
 and not those of merely municipal authority. Accordingly it 
 has been held, that the judgments of Justices of the Peace are 
 not within the act or the constitutional provision. (1 Greenl. 
 on Uv. 505.) 
 
 The proof of records by a sworn copy, is by producing a wit- 
 ness who has compared the copy with the original, or with what 
 the officer of the Court, or any other person, read as the con- 
 tents of the record. (1 Greenl. on Ev. \ 508.) 
 
 There are various statutory provisions in regard to the mode 
 of proving records and judicial writings, which may properly 
 ,be given here: 
 
 In cases where by law the affidavit of any person residing in 
 another State of the United States, or in any foreign coimtry, 
 is reauired, or may be received, in judicial proceedings in this 
 State, to entitle the same to be read, it must be authenticated 
 as follows: 1. It must be certified by some Judge of a Court 
 having a seal, to have been subscribed and taken before him, 
 specifying the time and place where taken; 2. The genuineness 
 of the signature of said Judge, the existence of the Court, and 
 the fact that such Judge is a member thereof, must be certified- 
 by the clerk of the Court under the seal thereof. (2 R. 8. 
 396, § 26.) A substantial compliance with the provisions of 
 this statute is all that is requisite. (12 Wend. 225; M. & M. 
 Bank vs. Cowden, 3 Hill, 461.) 
 
 The records and judicial proceedings of any Court in a foreign 
 country may be admitted in evidence in the Courts of this State, 
 upon being authenticated as follows: 1. By the attestation of 
 the clerk of such Court, with the seal of such Court annexed, 
 or of the officer in whose custody such records are legally kept, 
 with the seal of his office annexed; 2. By a cei-tificate of the 
 Chief Justice, or presiding magistrate, of such Court, that the 
 person attesting such record is the clerk of the Court, or that 
 he is the officer in whose custody such record is required by 
 law to be kept; and, in either case, that the signature of such 
 person is genuine; and, 3. By the certificate of the Secretary 
 of State, or other officer of the government under whose au- 
 thority such Court is held, having the custody of the great or 
 principal seal of such government, piu'portiug that such Court 
 is duly constituted, specifying generally the nature of its juris- 
 diction, and verifying the signature of the clerk or other officer 
 
DOCUMENTARY EVIDENCE. 387 
 
 having the custody of such record, and also verifying the sig- 
 nature of the Chief Justice or presiding magistrate. (2 R. 8. 
 396, \ 26.) 
 
 Copies of such records and proceedings in the Courts of a 
 foreign country, may also be admitted in evidence, upon due 
 proof, 1. That the copy offered has been compared by the wit- 
 ness with the original, and is an exact transcript of the whole 
 of such original; 2. That such original was in the custody of 
 the clerk of the Court, or other officer legally having charge 
 of the same; and, 3. That such copy is duly attested by a seal, 
 which shall be proved to be the seal of the Court in which 
 such record or proceeding shall be. (2 R. 8. 397, § 27.) 
 
 The preceding sections do not prevent the proof of any 
 record or judicial proceeding of the Courts of any foreign 
 country, according to the rules of the common law, in any other 
 matter than that herein directed, nor are they to be construed 
 as declaring the effect of any record or judicial proceeding 
 authenticated as therein prescribed, {id. § 28.) 
 
 A transcript of the docket of any Justice of the Peace of 
 any town, city or county in any adjoining State, of any judg- 
 ment had before him; of the proceedings in the cause before 
 such judgment; of his jurisdiction in said cause; of the execu- 
 tion issued thereon, if any; and of the return of said execution, 
 if any; when subscribed by such Justice, and verified in the 
 manner prescribed in the next succeeding section, is deemed 
 presumptive , evidence to prove the facts stated in such tran- 
 script. {Laws of 1836, chap. 439, ^ 1.) To entitle such 
 transcript to be read in evidence, there must be attached there- 
 to a certificate of the said Justice, that the said transcript is in 
 all respects correct, and that he, the said Justice, had jurisdic- 
 tion of the said cause; ^and also, a further certificate of the 
 clerk or prothonotary of the county in which such Justice 
 resided at the time of rendering said judgment, under the seal 
 of the Court of Common Pleas of said county, specifying that 
 the person subscribing such transcript was, at the date of such 
 judgTQont, a Justice of the Peace of said county, and that the 
 signature thereto is in his own proper hand-writing, {id. § 2.) 
 Such judgments and proceedings, and the authority to render 
 such judgment, may also be proved by the Justice who ren- 
 dered such judgment, by producing his docket or a copy of 
 
388 NEW TOEK JUSTICE. 
 
 the said judgment in Court, and appearing, and being sworn 
 and examined as a witness to the truth and correctness thereof, 
 and of his authority to render such judgment. {Laws of 1836, 
 chap. 439, § 3.) Nothing in this statute contained is to be con- 
 strued to prevent the introduction of evidence to controvert 
 any and all parts of the proof in relation to the validity of said 
 judgment so rendered in an adjoining State, {id. § 4.) 
 
 A copy of any record and proceediiig of the District and 
 Circuit Courts of the United States, may be received in evi- 
 den6e in all Courts of this State, when certified by the clerk or 
 officer in whose custody the same is required by law to be, to 
 have been compared by him with the original, and to be a cor- 
 rect transcript therefrom, and of the whole of such original, 
 and attested by the official seal of such officer. {Laws of 1845, 
 chap. 303.) 
 
 A copy of any act, proceeding, record, document, roll, war- 
 rant, order, or other paper or writing, now or hereafter re- 
 maining in any of the Departments of the government of the 
 United States, may, when certified by the head or acting chief 
 officer at the time being of such Department, to have been com- 
 pared by him with the original, and to be a correct transcript 
 therefrom, and of the whole of such original, and attested by 
 the seal of his Department, be given in evidence in all Courts 
 of this State, with the like effisct as the original. {Latos of 
 1846, chap. 240, § 1.) But this does not prevent the proof of 
 such record, act, proceeding, document, roll, warrant, order, or 
 other paper or writing, according to the rules of the common 
 law, or in any other manner, {id. § 2.) 
 
 We shall hereafter give {post, part I., chap. 15) the statutory 
 provisions in regard to the mode of proving judgments and 
 other proceedings had before Justices of the Peace. 
 
 (3.) Documentary Evidence generally. 
 
 The following are statutory provisioiis in regard to docu- 
 mentary evidence : 
 
 Aliens, Depositions q/".] Certified copies of the depositions 
 filed in the office of the Secretary of State by aliens, in order 
 to enable them to hold real estate, are evidence of the facts 
 therein contained. {Latos of 1834, chap. 272.) 
 
 Attorney, Letters of] Every letter of attorney or other in- 
 
DOCtTMBNTART EVIDENCE. 389 
 
 strument, containing a power to convey lands as agent or attor- 
 ney for the owner of such lands, and every executory contract 
 for the sale or purchase of lands, when proved or acknowledged 
 in the manner prescribed in the statute, may be recorded in the 
 clerk's office of any county, in which any real estate, to which 
 such power or contract relates, may be situated ; and, when so 
 proved or acknowledged, and the record thereof when recorded, 
 or the transcript of such record, may be read in evidence, in 
 the same manner and with the like effect as a conveyance re- 
 corded in such county. (1 R. 8. 762, § 39.) 
 
 J Gertificates to documentary evidence, Form q/".] Whenever a 
 certified copy of any affidavit, record, document, or other paper 
 is declared by law to be evidence, such copy must be certified 
 by the clei'k, or officer in whose custody the same is required 
 by law to be, to have been compared by him with the original, 
 and to be a correct transcript therefrom, and of the whole of 
 such original ; and if such officer have any official seal by law, 
 such certificate must be attested by such seal ; aiid if such cer- 
 tificate be given by the clerk of any county, in his official char- 
 acter as such clerk, it must be attested by the seal of the Court 
 of Common Pleas of the county of which he is clerk. (2 id. 
 403, \ 59.) Copies of records in the office of a clerk of a board 
 of supervisors, certified by such clerk, with the seal of the 
 office, are made, by statute, evidence, like the originals. {Laws 
 0/1855, chap. 249.), 
 
 Oanal maps.] A t^'anscript from the original canal maps, or 
 from a copy thereof, certified as correct by the comptroller or 
 county clerk with whom such map or copy may be filed, is to 
 be received as presumptive evidence in all judicial or legal 
 proceedings. (1 R. 8. 218, § 7.) ^ 
 
 The original maps of the canals of this State, which purport 
 to have been made and completed under and in virtue of the 
 first article of title nine, chapter nine, of the first part of the 
 Revised Statutes, which said maps are now filed in the office of 
 the comptroller ; and such maps of said canals as hereafter shall 
 be made, completed, approved, signed, certified and filed under 
 and in virtue of the act referred to, are'by law declared to be 
 presumptive evidence that the lands indicated on said maps as 
 belonging to this State, have been taken and appropriated by 
 the State as and for the canals ; and a transcript from any such 
 
390 ' NEW YOEK JUSTICE. 
 
 maps, certified as required by the act referred to, are of equal 
 effect with the original. {Laws of 1837, chap. 451, § 6.) 
 
 Canal contractors' bonds.^ Actions on canal contractors' bonds 
 may be commenced before Justices of the Peace, when the 
 amount claimed does not exceed their jurisdiction ; and, in such 
 actions, transcripts of such bonds, duly authenticated by the 
 clerk of the county with whom the originals of such bonds are 
 filed, may be used as evidence in such actions. (Laws of 1850, 
 chap. 278, \ 2.) , 
 
 Chattel mortgages, Copies q/l] A copy of any chattel mort- 
 gage, or of a copy there of filed pursuant to the statute, including 
 any statement of the interest of the mortgagee in the property 
 claimed by him by virtue of such mortgage, certified by the 
 clerk or register in whose office the same is filed, is to be re- 
 ceived in evidence, but only of the fact that such mortgage or 
 copy, and statement, was received and filed according to the 
 endorsement of the clerk or register thereon, and of no other 
 fact ; and in all cases the original endorsement by the clerk or 
 register, made in pursuance of the statute, upon such mortgage 
 or copy, is to be received in evidence only of the facts stated in 
 such endorsement. {Laws of 1833, cliap. 279, § 5.) 
 
 Common Council of JSFew York, Proceedings q/".] Every act, 
 ordinance, resolution or proceeding of the common council of 
 the city of New York may be read in evidence in all Courts of 
 Justice in this State, either, 1. From a copy of such act, ordi- 
 nance, resolution or proceeding, certified by the clerk of the 
 common council, with the seal of the corporation afBxed ; or 2. 
 From the volume of ordinances printed by authority of the com- 
 mon council. The charter of the city of New York may be 
 read in evidence from the volume containing such chai'ter, 
 printed by authority of the common council, or from a copy 
 certified by the clerk of the common council. A copy of the 
 proceedings of either chamber of the common council, certified 
 by the clerk thereof, may be read in evidence in all Courts of 
 Justice of this State. A certificate of the Mayor of New York, 
 or of the clerk of the. common council, of the granting or re- 
 newal of any license, may be read in evidence in any Court of 
 Justice in this State, to prove the existence of such license. 
 The proceedings of the board of health may be read in evidcsnce 
 from a copy of such proceedings, certified by the secretary of 
 
DOCUMENTARY EVIDENCE. 391 
 
 the ^oard of health, or the presiding officer of such board. All 
 proclamations by the mayor of the city of New York may be 
 proved in all Courts of Justice, by jDroducing a copy of such 
 proclamation, with the certificate of the mayor that the same is 
 a. copy, and has been published according to law. The evi- 
 dence authorized under the provisions of this act to be consid- 
 ered jp? 7 >waj'r«c«e evidence only. {Laws of 1832, chap. 158.) 
 
 Conveyances, <&c., Certificates of proof and acknowledgment 
 of] Every conveyance, acknowledged or proved and certified 
 in the manner presci-ibed by law, [post, part III. chap. 1), be- 
 fore any of the officers duly authorized by statute, may be read 
 in evidence without further proof thereof, and is entitled to bo 
 recorded. (1 B. 8. 759, § 16.) 
 
 To entitle any conveyance to be recorded or read in evi- 
 dence, it must be acknowledged by the party or parties execu- 
 ting the same, or be proved by a subscribing witness thereto, 
 before some one of the following officers : 1. If acknowledged 
 or proved within this State, the Justice of the Supreme Court, 
 County Judges, mayors and recorders of cities, commissioners 
 of deeds, and Justices of the Peace in towns; (but no County 
 Judge or commissioner of deeds for a city, or Justice of the 
 Peace in a town, can take any such proof or acknowledgment 
 out of the city or county for which he was appointed.) 2. If 
 acknowledged or proved out of this State, and withiii the United 
 States, the Chief Justice and Associate Justices of the Supreme 
 Court of the United States, District Judges of the United States, 
 the Judges or Justices of the Supreme, Superior, or Circuit 
 Court of any State or Territory within the United States, and 
 the Chief Judge or any Associate Judge of the Circuit Court of 
 the United States in the District of Columbia; (but no such offi- 
 cer can take any such proof or acknowledgment out of the place 
 or territory to which the jurisdiction of the Court to which he 
 belongs extends.) (id. 756, § 4.) 
 
 Notaries Public shall also have power to take affidavits and 
 certify to the same, and to take and certify the acknowledgment 
 and proof of deeds and other instruments in writing in all cases 
 where Justices of the Peace or commissioners of deeds may now 
 take and certify the same. (Laios of 1863, chap. 508.) 
 
 If any party or parties executing such conveyance, be, or 
 reside, in any State or Idngdom in Europe, or in North or South 
 
392 NEW YORK JUSTICE. 
 
 America, the same may be acknowledged or proved befor^ any 
 minister plenipotentiary, or any minister extraordinary, or anyi 
 charge des affaires, of the United States, resident and accredited 
 within such State or kingdom. If such parties be, or reside, in 
 I^rance, such conveyance may be acknowledged or proved before 
 the consul of the United States appointed to reside at Paris ; 
 and if such parties be, or reside, ''in Russia, such conveyance 
 may be acknowledged or proved before the consul of the United 
 States appointed to reside at St. Petersburgh. (1 R. 8. 757, § 5.) 
 
 If the party to such conveyance be, or reside, within the 
 United kingdom of Great Britain and Ireland, or the donainions 
 thereunto belonging, the same may be acknowledged or proved 
 before the mayor of the city of London, the mayor or chief 
 magistrate of the city of Dublin, or the provost or chief magis- 
 trate of the city of Edinburgh, or before the mayor or chief 
 magistrate of Liverpool, or before the consul of the United 
 States appointed to reside at London, {id. § 6.) 
 
 Such proof or acknowledgment, duly certified under the hand 
 and seal of office of such consuls or of the said mayors or chief 
 ma,gistrates respectively, or of such minister or charge des affaires', 
 has the^like force and validity as if the same were taken before 
 a Justice of the Supreme Court of this State, {id. § 7.) 
 
 The acknowledgment or proof of a deed or mortgage, made 
 or taken before the mayor of either of the cities of Philadelphia 
 or Baltimore, or before any consul of, the United States resident 
 in any foreign port or country, or before a Judge of the highest 
 Court in Upper Canada, or Lower Canada, and certified by them 
 respectively, is as yaUd and effectual as if taken before one of 
 the Justices of the Supreme Court of this State. {Laws of 1829, 
 chap. 222.) 
 
 Every acknowledgment or proof of a deed or mortgage made 
 or taken before the mayor of any city in the United States, and 
 certified by him, is as valid and efiectual as if taken before one 
 of the Justices of the Supreme Court of this State. {Laws of 
 1843, chap. 109.) 
 
 I'he acknowledgment of any deed, mortgage, or other convey- 
 ance of any real estate within this State, and of any contract in 
 relation to such real estate, and of any power of attorney au- 
 thorizing the conveying, mortgaging, or otherwise disposing of 
 such real estate, or of making any contract in relation thereto^ 
 
DOCTTMENTART EVIDENCE. 393' 
 
 which has been or shall be executed by an officer or soldier of 
 the army of the United States, employed at the time of making 
 such acknowledgment within the territory of the republic of 
 Mexico, may be taken within such territory before, and certified 
 by, any major-general, brigadier-general, or colonel of the said 
 -army, to whom the person making such acknowledgment shall 
 be personally known at the time of maldng the same. The cer- 
 tificate of any acknowledgment, taken and certified by virtue 
 of this act, must state the place at which it is taken, and the 
 fatt that the person making the same is an officer or soldier of 
 the said army, of which fact such acknowledgment shall be pre- 
 sumptive evidence. Every acknowledgment so taken and certi- 
 fied has the same force and efiect in all respects as if the same were 
 taken and certified within this State by an officer authorized by 
 law to take and certify the same. [Laws of 1847, chap. 170.) 
 
 The proof or acknowledgment of any deed or other written 
 instrument required to be proved or acknowledged, in order to 
 entitle the same to be recorded or read in evidence, when made 
 by any person residing out of this State, and within any other 
 State or Territory of the United States, may be made before any 
 officer of such State or Territory, authorized by the laws thereof 
 to take the proof and acknowledgment of deeds; and when so 
 taken and certified as herein provided, is entitled to be recorded 
 In any county in this State, and may be read in evidence in 
 any Court in this State, in the same manner and with like 
 efiect as proofs and acknowledgments taken before any of the 
 officers now authorized bylaw to take such proofs and acknowl- 
 edgments. But it is provided, that no such acknowledgment 
 shall be valid unless the officer taking the same knows or has 
 satisfactory evidence that the person making such acknowledg- 
 ment is the individual described in and who executed the said 
 deed or instrument. {Laws of 1848, chap. 195, § 1.) To en- 
 title any conveyance or other written instrument, acknowledged 
 or proved under the preceding section, to be read in evidence 
 or recorded in this State, there must be subjoined or attached 
 to the certificate of proof or acknowledgment, signed by such 
 officer, a certificate under the name and official seal of the clerk, 
 register, recorder, or prothonotary of the coiuity in which such 
 officer resides, or of the County or District Court, or Court of 
 Common Pleas, Ihereof, specifying that such officer was, at the 
 
394 NEW YOEK JUSTICE. 
 
 time of taking such proof oi' acknowledgment, duly authorizecl 
 to take the same, aud that such clerk, register, recorder, or pro- 
 thonotary is well acquainted with the hand-writing of such 
 officer, and verily believes that the signature to such certificate 
 of proof and aclmowledgment is genuine. {Laws of 1848, 
 chap. 195, § 2; Laws of 1856, chap. 61.) 
 
 Commissioners appointed by the Governor of this State in 
 other States and Territories of the United States, and in the 
 District of Columbia, are authorized to take the acknowledg- 
 ment and- proof of the execution of any deed, mortgage, lease 
 or other conveyance of any lands lying in this State, or of any 
 contract, assignment, transfer, letter of attorney, satisfaction of 
 a judgment, or of a mortgage, or of any other writing or in- 
 strument under seal, to be used or recorded in this State, also 
 to administer an oath or affirmation to any person or persons 
 who may desire to make such oath or affiimation. (Laws of 
 1850, chap. 270, § 1.) Any acknowledgment or proof taken 
 in the manner directed by law with respect to the taking of the 
 same within this State, and certified by any such commissioner 
 by whom the same is taken, under his hand and official seal, 
 such certificate to be endorsed on the instrument, is, when au- 
 thenticated as hereafter provi4ed, entitled to be recorded in 
 any county in this State, and has the same force and effect, and 
 is as good and available in law for all purposes, as if taken 
 before an authorized officer residing in this State; and any affi^ 
 davit or affirmation made before any such commissioner, certified 
 and authenticated as aforesaid, may be read in evidence, and is 
 as good and effectual to all intents and purposes, as if taken 
 and certified by an authorized officer residing in this State. 
 {id. § 2.) Before any such deed, instrument, oath, or affii-ma- 
 tion, is entitled to be used, recorded, or read in evidence, there 
 must be subjoined or affixed to the certificate of the commis- 
 sioner, a certificate under the hand and official seal of the 
 Secretary of State of this State, certifying that such commis- 
 sioner was, at the time of taking such proof or acknowledg- 
 ment, or of administering such oath or affirmation, duly 
 authorized to take the same, and that the Secretary is ac- 
 quainted with the hand-writing of such commissioner, or has 
 compared the signature to such certificate with the signature 
 of such commissioner deposited in his office, and has also qom- 
 
DOCUMENTARY EVIDENCE. 395 
 
 pared the impression of the seal alBSxed to such certificate, "with 
 the impression of the seal of such commissioner deposited in 
 his office, and that he verily believes thp signature and the 
 impression of the seal of the said certificate to be genuine. 
 (Laws of 1850, c/iap. 270, ^§ 4, 5.) No such commissioner can 
 'take any proof or acknowledgment, or administer any oath or 
 affirmation, at any place other than within the city and county 
 within which he resides at the time of his appointment, (1 R. S. 
 756, § 4,) and every certificate of such commissioner must spe- 
 cify the day on which, and the city or town and county within 
 which, the proof or acknowledgment was taken, or the oath 
 or affirmation administered, and without such specification the 
 certificate is void. (Laws of 1850, chap. 270, § 4.) 
 
 When any married woman, not residing in this State, joins 
 with her husband in any conveyance of real estate situated 
 within this State, the conveyance has the same effect as if she 
 were sole; and the acknowledgment or proof of the execution 
 of such conveyance by her may be the same as if she were 
 sole. (1 a. S. 758, § 11.) So where a resident wife conveys 
 her property since 1848. (Blood vs. Humphrey, 17 Barb. 660.) 
 
 The record of a conveyance duly recorded, or a transcript 
 thereof, duly certified, may also be read in evidence, with the 
 like force and efifect as the original conveyance. Neither the 
 certificate of the acknowledgment, or of the proof, of any con- 
 veyance, nor the record, or the transcript of the record, of such 
 conveyance, is conclusive, but may be rebutted, and the force 
 and effect thereof may be contested by any party affected 
 thereby. If the party contesting the proof of a conveyance, 
 niakes it appear that such proof was taken upon the oath of 
 an interested or incompetent witness, neither such conveyance, 
 nor the record thereof, can be received in evidence, until estab- 
 lished by other competent proof (id. 759, § 17.) 
 
 Where any conveyance is proved or acknowledged before 
 any Judge of the county courts, not of the degree of counsellor 
 at law in the Supreme Court, or before any commissioner of 
 deeds appointed for any city, or before any Justice of the 
 Peace in a town, it is not entitled to be read in evidence, or to 
 be recorded, in any other county than that in which such Judge, 
 or commissioner, or Justice resides, unless, in addition to the 
 other requisites prescribed by la^v, there is subjoined to the 
 
I 
 
 3-96 NEW YORK JUSTICE. 
 
 certificate of proof or acknowledgment signed by such Judge, 
 commissioner, or Justice, a certificate under the hand and official 
 seal of the clerk of the county in which such Judge, or commis- 
 sioner, or Justice resides, specifying that such Judge, or com- 
 missioner, or Justice was, at the time of taking such proof or 
 acknowledgment, duly authorized to take the same, and that the 
 said clerk is well acquainted with the hand- writing of such 
 Judge, or commissioner, or Justice, and verily believes that the 
 signature to the said certificate! of proof or acknowledgment is 
 genuine. (1 II. S. 759, § 18.) The certificate of the proof or 
 acknowledgment of every conveyance, and the certificate of the 
 genuineness of the signature of any Judge, or commissioner, or 
 Justice, in the cases in which such last mentioned certificate is 
 required, must be recorded together with the conveyance so 
 proved or acknowledged; and unless the said certificate be so 
 recorded, neither the record of such conveyance, nor the tran- 
 script thereof, can be read or received in evidence, (id. § 20.) 
 
 To entitle the transcript of any ]-ecord of any conveyance 
 which has been recorded, and of the certificate of the acknowl- 
 edgment or proof thereof and of the genuineness of any signar 
 ture to such certificate, to be read in evidence, the same must 
 be certified to be a true copy of such record, by the clerk of the 
 county in whose custody the same is, under the seal of the coimly- 
 court of the county of which he is clerk, or by the register of 
 the city and comity of New York, when such record is in his 
 custody, (id. 761, § 26.) 
 
 Every conveyance of real estate situated without this State, 
 and which is acknowledged or proved in the manner prescribed 
 by the laws of this State in relation to conveyances of lands 
 within this State, may be read in evidence in any Court without 
 further proof thereof, in the same manner and with the same 
 efiiect as if such conveyance related to real estate within this 
 State; but this section cannot be construed to prevent the read- 
 ing in evidence of any conveyance of lands within any other of 
 the United States, which has been duly authenticated according 
 to the laws of such State, so as to be read in evidence in the 
 Courts thereof, (id. 761, § 27.) 
 
 A copy of any deed, conveyance, or other instrument in writ- 
 ing, relating to, or in any manner afiecting, the title to any real 
 estate, which is or may be recorded or filed in the office of the 
 
DOCUMENTARY EVIDENCE. 89J 
 
 Secretary of ^tate, upon being certified by the said Secretary 
 in the manner required by law to entitle the same to be read in 
 evidence, may be recorded in the office of the clerk of any county 
 in this State, or in the office of the register of deeds in the city 
 of New York, with the Secretary's certificate; and such record, 
 and a duly certified copy thereof, may be read in evidence, in 
 the same manner and with the like efiect as the record of a 
 conveyance of real estate situate in such county, originally 
 recorded in the said clerk's office, or in the office of said 
 register. {Laws of 1839, chap. 295, § 5.) 
 
 The copy of any record, or of any recorded deed or instru- 
 ment, attested and authenticated in such manner as would by 
 law entitle it to be read in evidence, may, on proof of the loss 
 of the original and of the record, be again recorded, and such 
 record will have the same effect as the original record. (Laws 
 of 1843, chap. -210, § 5.) 
 
 Any will duly proved, with the proofs, and certificate of proof, 
 may be recorded in any county clerk's office, or in the register's 
 office of the city and county of New York, and so may any 
 exemplification of the record of any such will from any office 
 where the same may be recorded. The record of such will or 
 exemplification, and the exemplifications of such record, may be 
 received in evidence, and will be as effectual in all cases as the 
 original will would be if produced and proved, and may in like 
 manner be repelled by contrary proof. {Laws of 1846, chap. 
 182, § 1; Laws of 1851, chap. 277.) 
 
 An exemplification of a judgment record or decree in parti- 
 tion may be d'ecorded in any county clerk's office, or in the 
 riegister's office of the city and county of New Yorb, according 
 to the situation of the lands described therein; and such record, 
 or an exemplification thereof, is entitled to be received in 
 evidence, and is as effectual in all cases as the original exempli- 
 fication would be if produced, and is open to the same objections. 
 {Laws'of 1848, chap. 182, § 2; Laws of 1851, chap. 277.) 
 
 A recent act, {Laws of 1858, chap. 259,) further provides as 
 follows: Any deed, or conveyance, or other written instrument, 
 affecting real estate within this State, proved or acknowledged 
 in any other State or Territory of the United States, where the 
 grantor or grantors of such deed or conveyance, and the officer 
 before whom the same shall be proved or acknowledged shall 
 
398 NEW YORK JUSTICE. 
 
 be dead; and whei'e such proof or acknowledgment shall be 
 certified as herein provided, may be recorded in any county of 
 the State and may be read in evidence iu any Court of this 
 State, in the same manner and with the like effect, as though 
 the same had been proved or acknowledged as required by the 
 laws of this State, provided that the death of the grantor or 
 grantors and of- the ofiicer before whom the same shall be proved 
 or acknowledged, shall be proved by the affidavit of one or more 
 persons, sworn to before some officer authorized by law to ad- 
 minister oaths in each State or Territory and certified as herein 
 provided. 
 
 To entitle such deed or conveyance or other written instru- 
 ment, to be read in evidence or recorded in this State, there 
 shafll be annexed to the certificate of proof or acknowledgment,' 
 signed by such officer, a certificate under the name and official 
 seal of the clerk or register of the county in which such officer 
 resided, specifying that such officer was at the time of taking 
 such proof or acknowledgment, duly authorized to take the 
 same, and that such clerk or register is well acquainted with 
 the hand-writing of such officer, and verily believes that the 
 signature to said certificate of proof or acknowledgment is gemi- 
 ine, and that such deed or conveyance or written instrument is 
 proved or acknowledged in all respects, as required by the laws 
 of such State or Territory. There shall also be a like certificate 
 of such clerk or register, attached to the jurat or affidavit prov- 
 ing the death of the grantor or grantors, and of the officer before 
 whom the deed or written instrument was proved or acknowl- 
 edged, certifying that such officer was, at the time of taking ^uch 
 affidavit or affidavits duly authorized to take the same, and that 
 such clerk or register is well acquainted with the hand-writing 
 of such officer, and verily believes that the signature of such 
 jurat or affidavit is genuine. Such affidavit or affidavits shall be 
 recorded with such deed or other written instrument, and he 
 presumptive evidence of the facts therein stated. 
 
 Corporations, Certificates of incorporation o/".] Certified copies 
 of the certificates of incorporation of building-associations, 
 {Laws of 1858, chap. 122, \ 21,) gas-compames, (Laws of 1848, 
 cJiap. 37, § 9,) and manufacturing, mining, mechanical, or chemi- 
 cal-companies, (id. chap. 40, §9,) from the office of a county 
 clerk, are presumptive legal evidence of the facts therein stated. 
 
DOCUMENTAET EVIDENCE. 399 
 
 Certified copies of the certificates of incorporation of banking- 
 associations, (Zaws o/" 1838, chap. 260, § 17,) and telegraph- 
 colnpanies, {Laws of 1848, chap. 265, § 3,) from the office of the 
 Secretary ^f State, or of a county clerk, are presumptive legal 
 evidence of the facts therein stated. 
 
 A copy from the office of the State engineer and surveyor, or 
 of a county clerk, of the articles of association of any bridge- 
 company, filed in pursuance of the act authorizing the incorpor- 
 ation of such company, with a copy of the affidavit of three of 
 the directors of such company, endorsed thereon, or annexed 
 thereto, expressing that the amount of stock required by said 
 act has been subscribed, and that five per cent, on the amount 
 has been actually paid, certified to be a copy by the proper offi- 
 cer, is, in all Courts and places, presumptive evidence of the 
 facts therein contained. {Laws of 1848, chap. 259, ^ 4.) 
 
 A copy of the articles of association of any plank or turnpike- 
 road company, formed under the general statute authorizing 
 the formation of such companies, which have been filed in pur- 
 suance of the terms of that statute, with a copy of the affidavit 
 of three of the directors of such company, certifying that the 
 amount of capital stock required by the said statute has been 
 subscribed, and that five per cent, on the amount has been ac- 
 tually paid in, certified to be a copy by the Secretary of this 
 State, or his deputy, is, in all Courts and places, presumptive 
 evidence of the incorporation of such company, and of the facts 
 therein stated. (Laws of 1847, chap. 210, § 3.) 
 
 A copy of the articles of association of any rail-road company 
 formed under the general rail-road statute, which have been 
 filed and recorded in pursuance of the terms of that statute, 
 with a copy of the affidavit. of three of the directors of such 
 campany, endorsed thereon, or annexed thereto, expressing that 
 the amount of stock required by the act has been subscribed, 
 and ten per cent, paid in cash thereon, and that it is intended, 
 in good faith, to construct, or to maintain and operate, the road 
 mentioned in the said articles, certified to be a copy by the 
 Secretary of this State, or his deputy, is presumptive evidence 
 of the incorporation of such company, and of the facts therein 
 stated. (Laws of 1850, chap. 140, § 3.) 
 
 In suits brought by (or against) a corporation created by, or 
 under, any statute of this State, it shall not be necessary to 
 
400 NEW TOKK JUSTICE. 
 
 prove, on the trial of the cause, the existence of such corpora- 
 tion, unless the defendant shall have alleged, in the answer in 
 the action, that the plaintiffs, (or defendants; as the case may 
 be,) are not a corporation. {Laws of 1864, chap. 422, ^ 1.) 
 
 Corporations, Seals o/".] In all cases, when a seal of any cor- 
 poration is authorized or required by law, the same may be 
 affixed by ms^king an impression directly on the paper, which is 
 as valid as if made on a wafer or on wax. {Laws of 1848, chap. 
 195, § 1.) 
 
 County Clerics, Papers certified by.\ Copies of all papers 
 duly filed in the office of a county clerk, and transcripts from 
 the boolcs of records kept therein, certified by such clerk, with 
 the seal of his office affixed, are evidence in all Courts in like 
 manner as if the originals were produced. (1 R. 8. 377, § 65.) 
 
 DepositioTis in perpetuam rei memoriam.] Depositions taken 
 in perpetuam rei memoriam, or certified copies thereof, may be 
 given in evidence in case of a trial between the persons named 
 as parties in the original affidavits upon which the order to take 
 such depositions was granted, or in case of a trial between the 
 persons named in such affidavits as expected parties, or between 
 any parties claiming under such persons or either of ihssm, 
 upon due proof of the death or insanity of the witness exam- 
 ined, or of his inability to attend the trial by reason of old 
 age, sickness, or settled infirmity. (2 R. 8. 399, § 39; Jackson 
 vs. Rice, 3 Wend. 180.) 
 
 Evidence that a woman is in an advanced state of pregnancy, 
 so that it would not be safe for her to attend the trial, is suffi- 
 cient evidence of sickness to justify the reading of her deposi- 
 tion taken conditionally. '{Clark vs. Dibble, 16 id. 601.) 
 
 The depositions so taken and read in evidence, have the same 
 effect, and no other, as the oral testimony of the witness would 
 have, if given on such trial; and every objection to the compe- 
 tency or credibility of siich witness, or to the relevancy of any 
 question put to him, or of any answer given by him, may be 
 made in the same manner as if such witness were personally 
 examined on such trial (2 R. 8. 399, § 40.) 
 
 Firemen, Certificates a^ to service of] The certificate of the 
 president of the board of trustees in any incorporated village, 
 specifying the fire company or companies in which any fireman 
 
DOCUMENTARY EVIDENCE. 401 
 
 has served for ten years, is presumptive evidence of such serv- 
 ice. {Laws of 1847, chap. 151, § 3.) 
 
 Insolvent's discharge.] The recitals in an insolvent's discharge 
 granted under the fwo-thirds act, (2 B. S. 38, § 19,) are con- 
 ,clusive evidence of the facts recited, except as to those neces- 
 sary to give the officer jurisdiction; as to such facts they are 
 prima facie evidence, but no more. {Stanton vs. Ellis, 2 Kern. 
 575.) 
 
 Legislative papers.] All petitions and papers presented to 
 the senate or assembly, must be kept on file in each of the 
 houses where they were originally presented; and copies of 
 said petitions or papers, certified by the clerk of the house in 
 which they were presented and filed, are prima facie evidence 
 thereof, wherever the same may be required within this State. 
 {Laws of 1837, chap. 140.) 
 
 Land-Oompanies, Papers and field-notes of] Copies of 
 papers received from the Holland Land-Company, and which 
 have been recorded and put on file in the clerk's offices of the 
 counties of Genesee, Orleans, Niagara, Erie, Chautauque, and 
 Allegany, or any exemplification thereof, are, in the absence of 
 the originals, as high evidence in any Court or proceeding, as 
 the originals would be. {Laws of 1836, chap. 329.) 
 . The original and copies of the field-notes of the Holland 
 Land-Company and the Ogden Company, when, proved before 
 or certified by a Justice of the Supreme Court, are entitled to 
 be received in e^ddence in all Courts of Justice in this State, as 
 presumptive evidence of the facts therein contained and stated. 
 {Laws of 1850, chap. 221.) 
 
 Loan-Oommissioners, Certificates of] Statements made by 
 the commissioners of loans and loan-officers, (under the loans of 
 1786, 1792, and 1808,) of the county of Ontario, of all mort- 
 gages taken by them, recorded or registered with them, and 
 which are a lien on lands situated in the countils of Yates, 
 Monroe, Orleans, Livingston, and Wayne, containing the dates 
 of such mortgages, the names of the mortgagors, a description 
 of the premises mortgaged, and the amount of moneys secured 
 to be paid by such mortgages, certified and signed by such 
 commissioners of loans or loan-officers, and filed in the offices 
 of the clerks of said counties, are deemed matters of record, 
 and the same, or certified copies thereof, are, iu all Courts and 
 26 
 
 &' 
 
402 NEW YORK JUSTICE. 
 
 places, evidence of the facts therein contained, in the same 
 manner as the registry of any mortgage duly registered and 
 recorded is evidence; and such transcripts, so filed, of the said 
 mortgages, have the Jike force and efiect aS a registry or record 
 of the said mortgages under the law for the registering and 
 recordii^ of mortgages. {Laws of 1829, c/iap. 91, § 5.)- 
 
 The mortgages taken by the loan-commissioners of the United 
 States d(ifposit fund, must be executed in the presence of two or 
 more witnesses, and be subscribed by them as such witnesses, 
 and the substance thereof must be minuted in a book to be kept 
 by the said commissioners ;. which mortgages and minutes, are 
 matters of record ; and an attested copy of any mortgage, if in 
 being, or of any minute, in case the mortgage is lost, under the 
 hands and seals of the commissioners, is good evidence of the 
 mortgage in any court within this State. {Laws of 1837, chap. 
 150, § 27.) 
 
 "Whenever any mortgaged premises are bid in by the loan- 
 commissioners of the United States deposit fund, for an amount 
 less than the principal, interest, and costs due, the comptroller 
 is required to credit such commissioners with the full amount 
 due on the mortgage at the time of the sale, on their delivering 
 to him the original mortgage, and all other securities for the 
 mortgage debt; (id. § 54;) and it is the duty, of the comptroller, 
 upon the application of any person interested therein, to fur- 
 nish a certified copy, under his seal of oiBce, of any original 
 mortgage-so delivered to him ; and such certified copy must, if 
 required by the holders thereof, be recorded, together with the 
 certificate of the comptroller, in the office of the register or 
 clerk of the county in which the lands described in the said 
 mortgage are situated ; and every such certified cot^j, and such 
 record thereof, or a transcript of such record, may be read in 
 evidence in Miy Court of this State, without any further proof 
 thereof, witn the like force and efiect as the said original mort- 
 gage. {Laws of 1844, chap. 326, ^ 2.) 
 
 The loan-commissioners of the United States deposit fund, 
 when required by any person interested in any lands sold under 
 the foreclosure of any mortgage made to them, are authorized 
 and directed to furnish a brief certificate of all or any of the 
 proceedings of the commissioners under the said act, and of the 
 proofs of such proceedings, as the same appear from the minute- 
 
DOCUMENTARY EVIDENCE. 403 
 
 books, entries, and records kept by the said commissioners, in 
 relation to any such foreclosure and sale, so far as the same 
 may affect such lands ; and every such certificate under the 
 hands and seals of the said commissioners, or under the hand 
 and seal of any one of them, duly acknowledged or proved in 
 the manner required by law to entitle a deed of real estate to 
 be recorded, may be recorded in the office of the register or 
 clerk of the county in which the said lands are situated ; and 
 every such certificate so acknowledged or proved, and the 
 record thereof, or a transcript of such record, is 'prima facie 
 evidence of the facts therein stated, and may be read in evi- 
 dence in any Court in this State. (Laws of 1844, chap. 326, 
 §3.) ' 
 
 Lost papers, Certificate as <o.J "Whenever any officer to whom 
 the legal custody of any document or paper belongs, certifies, 
 under his official seal, that he has made diligent examination in 
 his office for such paper, and that it camiot be found, such cer- 
 tificate is presumptive evidence of the facts so certified, in all 
 causes, matters and proceedings, in the same manner and vnth 
 the like effect as if such officer had personally testified to the 
 same, in the Court, or before the officer before whom such 
 cause, matter, or proceeding mav be pending. (2 R. 8. 552, 
 
 h 12.) 
 
 Marriage Certificates.^ Every' original marriage certificate, 
 and the original entry thereof, made in compliance with the 
 requirements of the statute^ ( j90s<, part III. chap. 18,) and a 
 copy of such certificate, or of such entry, duly certified, {id.) 
 must be received in all Courts and places as presumptive evi- 
 dence of the fact of such marriage. (2 R. 8. 141, § 17.) 
 
 Notary's Certificates. The dishonor of a promissory note, 
 payabife at a place within a foreign State, cannot be proved by 
 the certificate of a notary. It is only in relation to foreign bills 
 of exchange that the protest of a foreign notary can be admitted 
 in evidence; and a note is not rendered a bill of exchange by 
 being made payable in a foreign place. The provisions of our 
 own statute only apply to protests made within this State, and 
 by our own notaries. And even a statute of the State within 
 which the note is made payable, declaring the notary's certifi- 
 cate of protest legal evidence, does not justify its admission in 
 the Courts of this State. {Kirtland vs. Wanzer, 2 Duer, 278,) 
 
404 NEW YORK JUSTICE. 
 
 Offices of the State Government, Papers deposited in the.^ 
 Copies of papers in the office of the superintendent of the 
 banking department, duly certified by him under his official 
 seal, are evidence in all cases, equally and in like manner as 
 the original* of said papers; and an impression . of such seal 
 directly on paper is as valid as if made on wafer or wax. 
 {Laws of 1851, chap. 164, § 4.) 
 
 A copy of any resolution of the board of canal commis- 
 sioners, authorizing the erection of a building on any dam, 
 pier, mole, or other work, certified by the secretary of the 
 board, is, in all cases, evidence equally and in the same man- 
 ner as the original. {Laws of 1840, chap. 292, § 3.) 
 
 Copies of all books and papers pertaining to the duties of 
 the auditor of the canal department, or to the duties of the 
 commissioners of the canal fund, or of the canal board, and 
 transcripts from the minutes of the proceedings of the com- 
 missioners of the canal fund and of the canal board, certified 
 by the said auditor, under his official seal, are evidence equally 
 and in like manner as the originals. {Laws of 1848, chap. 162, 
 
 kk 4, 5.) 
 
 Copies of palpers,de^osited or filed in the offices of the comp- 
 troller and surveyor-general, certified by the officer in whose 
 office they are deposited, are, in all cases, evidence equally and 
 in like manner as the originals. (1 B. S. 187, § 17.) 
 
 Every certificate or conveyance executed by the comptroller, 
 in pursuance of the provisions off the chapter of the Eevised 
 Statutes entitled, " Of the assessment and collection of taxes," 
 may be recorded in the same manner and with the like effect as 
 a deed regularly acknowledged or proved before any officer 
 authorized by law to take the proof and acknowledgment of 
 deeds, {id. 420, ^ 10.) 
 
 Copies of accounts against persons who have balances of the 
 public money in their hands unaccounted for, duly certified by 
 the comptroller, are sufficient evidence to support an action for 
 the balances therein stated, subject to the right of the defend; 
 ants to plead and give in evidence, all such matters as shall be 
 legal and proper for their defence or discharge, {id. 173, 
 ^§ 24, 28.) 
 
 The comptroller is authorized to insert at the head of each 
 column on the first page of each of the several books of sales 
 
DOCUMENTARY EVIDENCE. 405 
 
 of lands for/taxes in his office, a brief statement of what the 
 words or abbreviations or figures contained in the several col- 
 uoins are intended to represent. (Laws of 1849, chap. 180, 
 § 1.) He is also authorized to insert in any certified copy given 
 by him from any part of the books aforesaid, at the head of the 
 respective columns therein, the statement at the head of the 
 corresponding column in the book from which it was made, 
 with the same effect as if the column from which such copy was 
 talien were headed in like manner, {id. § 2.) He is also au- 
 thorized to furnish extracts from the returns of his department 
 of unpaid taxes, and from the tax books therein in reference to 
 any lot or piece of land, certifying that such extract contains 
 all that is stated in such return or book relating to stich lot or 
 piece of land, and such certified extract may be read in evi- 
 dence in all Courts and proceedings with the same effect as the 
 original return or book. (id. § 3.) 
 
 , AH copies of records and papers in the office of the Secre- 
 tary of State, certified by him, and authenticated by the seal 
 of his office, are, in all cases, evidence equally and in like man- 
 ner as the originals. (1 H. S. 166, § 4.) 
 
 Plank and twnipike-roads, Transfer books q/.] The transfer 
 books of plank and turnpike-road companies formed under the 
 general law, are presumptive evidence of the facts therein 
 stated, in favor of the plaintiff, in any suit or proceeding 
 against such company, or against any one or more stockhold- 
 ers, or against such company and one or more stockholders 
 jointly. {Laics of 1847, cliap. 210, § 43.) The appropriate 
 evidence of the completion of a plank road, or of a sufficient 
 portion thereof to justify the erection of toll-gates and the 
 exaction of toll, is the inspector's certificate. Certificates, un- 
 certain in respect to the portion of the road to which they are 
 intended to apply, or as to the fact of the three miles required 
 being consecutive miles, are fatally defective, and parol evi- 
 dence is inadmissible to help them. {li. & B. P. R. Co. vs. 
 Brundage, 13 How. 448.) 
 
 Printers' affidavits. The affidavit of the printer, or foreman 
 of such printer, of any public newspaper published in this State, 
 of the publication of any notice or advertisement which, by any 
 law of this State, is required to be published in such newspaper, 
 is entitled to be read in evidence in all Courts of Justice in this 
 
406 NEW YOKK JUSTICE. 
 
 State, and in all proceedings before any officer, body, or board, 
 in which it shall be deemed necessary to refer thereto, and will 
 be prima, facie evidence of such publication, and of the facts 
 stated therein. {Laws of 1835, chap. 159.) 
 
 Redemption of real estate, Certificates of] Whenever any 
 redemption of real estate sold on execution is made, it is the 
 duty of the officer making the sale, and of every other person 
 lawfully acting on his behalf, to execute to the person making 
 such redemption, his certificate, truly stating all the facts trans- 
 piring before Mm at the making of such redemption, as shall be 
 sufficient to show the fact of such redemption. {Laws of 1847, 
 chap. 410, § 5.) Such certificate may be proved or acknowl- 
 edged as deeds are required to be, and, being recorded in the 
 clerk's office of the county where the real estate Ues, has the 
 same effect, as against subsequent purchasers and incumbrancers, 
 as deeds and conveyances duly proved and recorded; and such 
 certificate, or the record thereof, or a duly authenticated copy 
 of such record, must be received in all Courts and places as 
 pj-ima facte eiridence of the facts therein stated, (id. § 6.) 
 
 Statutes of this State.] A certificate by the revisers of the 
 Eevised Statutes, or by any two of them, certifying the same to 
 have been examined and compared by them with the original 
 acts, and with the acts amending such originals, and deposited, 
 with a copy of such Statutes, in the office of the Secretary *of 
 State, is conclusive evidence of such statutes. {Laws of 1828, 
 chap. 20, § 25.) Such certificate must be printed in each copy 
 of the Revised Statutes published under the direction of the 
 revisers; and every copy so printed by the printers employed 
 for that purpose, in which such certificate shall be inserted, may 
 be read in evidence in all Courts of Justice, and in all proceed- 
 ings before any officer, board, or body, in this State, {id. § 26.) 
 
 Each volume of the laws hereafter printed for the State, must 
 contain the certificate of the Secretary of State, to the effect that 
 the said volume was printed under his direction. {Laws of 
 1843, chap. 98, \ 1.) All laws passed "by the Legislature may 
 be read in evidence from the volumes printed under the direc- 
 tion of the Secretary of State, pursuant to the sixth section of 
 the act entitled, "An act to provide for the public printing," 
 passed January 21, 1843, in the same manner and with the like 
 
BOCUMENTARV EVIDENCE. 407 
 
 effect as laws heretofore published by the State printer. {^Laws 
 0/1843, chap. 98, ^ 2.) ', 
 
 : Taxes unpaid, Certificate of. J Certificates given by county 
 treasurers, of the amount of taxes on lajids, with their receipts 
 endorsed for the amount paid thereon, are presumptive evidence 
 of such payment, and of the facts stated therein. (^Laws of 
 
 1850, cAop. 298, § 34.) 
 
 Town-Clerks, Papers in office q/".] Copies of all papers duly 
 filed in the office of a town-clerk, including those filed with him 
 as clerk of the town superintendent of common schools,^ and 
 transcripts from the book of records certified by him, are 
 eyidence in all Courts, in like manner as if the originab were 
 produced. (1 R. 8. 350, § 16.) 
 
 Trustees of ahsconditig debtor.^ The appointment of trustees, 
 and the report of the ofBcer making the same in proceedings 
 under the Eevised Statutes against an absconding, concealed or 
 non-resident debtor, are, by force of the statute, (2 id. 13, §§ 62, 
 68,) evidence in favor of a party deriving title from the trustees, 
 tl^at the proceedings stated therein were had. {Wogd vs. Cha- 
 rpin, 3 Ker. 509.) 
 
 Villages, Certificates of incorporation and proceedings of] 
 Certificates of the incorporation of villages, or transcripts from 
 the record thereof, certified by the county clerk with whom the 
 same shall have been filed, are presumptive evidence of the facts 
 therein stated. (Taics of 184:7, chap. 426, § 16.) 
 
 The leases for mipaid taxes, executed by the trustees of incor- 
 porated villages, are presumptive evidence that all proceedings 
 which terminated in making such leases, from and including the 
 voting of the tax, or the directing of the side-walk to be made 
 or repaired, to and including such leasing, were legal, {id. § 54.) 
 : , • The certificates of the clerks of such villages are evidence of 
 , the publication of the village ordinances or by-laws. {Laios of 
 
 1851, chap. 519, § 4.) 
 
 Wills.'] Every will of real estate, duly proved, must ha^-e a 
 certificate of such proof endorsed thereon, signed by the surro- 
 gate, and attested by his seal of office, and may be read in evi- 
 dence, without further proof thereof. The record of such will, 
 made by the surrogate before whom the same was proved, and 
 the exemplification of such record by the surrogate. in whose 
 custody the same may be, may be received in evidencci and will 
 
408 NEW YORK JUSTICE. 
 
 be as effectual, in all cases, as the original will would be, if pro- 
 duced and proved, and may in like manner be repelled by con- 
 trary proof. (2 R. 8. 58, § 15.) ■ 
 
 Written: instruments generally, Proof or aohnowledgment of.^ 
 Every written instrument, except promissory notes and bills 
 of exchange, and except the last wills of deceased persons, may 
 be proved or acknowledged in the manner now provided by 
 law for taking the proof or acknowledgment of conveyances of 
 real estate; and the certificate of the proper officer, endorsed 
 thereon, will entitle such instrument to be received in evidence 
 on the trial of 'any action, with the same effect, and in the same 
 manner, as if such instrument were a conveyance of real estate. 
 {Laws of 1833, chap. 271, § 9.) 
 
 18. Pkivatb "Writings. 
 
 The last class of written evidence which we propose to con- 
 sider, is that of private writings. i 
 
 (1.) Production of private iJoritings. 
 
 In general, all private writings given in evidence, must be 
 produced,, and the executi(5n of them be proved; or their ab- 
 sence must be duly accounted for, and their loss supplied by 
 secondary evidence. (1 Greenl. on Ev. § 557.) 
 
 If the instrument is lost, the pai'ty is required to give evi- 
 dence that such a paper once existed, and that a bona fide and 
 diligent search has been unsuccessfully made for it in the place 
 where it was most likely to be found, if the nature of the case 
 admits of such proof, {id. § 558.) The testimony of the party 
 is admissible to prove those facts. (16 Johns. 193; 20 id. 14^- 
 Vedder vs. Wilkins, 5 Den. 64.) The statute provides, that 
 whenever a party to an action shall have been permitted to prove 
 by his own oath the loss of any instrument, in order to admit 
 other proof of the contents thereof, the adverse party may also 
 be examined by the Court on oath, to disprove such loss, and to 
 account for such instrument; (2 R. 8. 406, § 74;) but the evi- 
 dence of the parties in such case is to be confined to the question 
 of the loss. {Woodworth vs. Barker, 1 Hill, 172.) 
 
 When a foundation is thus laid for the admission of secondary 
 evidence of the execution and contents of an instrumeat, parol 
 
PRIVATE WRITINGS.. 409 
 
 evidence is admissible to show what the instrument contained. 
 (1 Caines, 27; 2 id. 363; 2 Johns. Cases, 488; 6 Gow. 404; 
 Peck vs. Ouerney, 2 i327^, 605.) 
 
 But the party oflFering the secondary evidence must still com- 
 ply with the rule requiring the best evidence. Thus, to prove 
 the contents of a lost or destroyed paper by a copy, proof that 
 it is in the hand- writing of one who was requested to make a' 
 copy, and that it is substantially the same as the original, is not 
 the best evidence; the copyist himself should be produced. 
 {Brewster vs. Countryman, 12 Wend. 446.) , 
 
 Where the instrument or writing is in the hands or power of 
 an adverse party, the Code, (§ 388,) makes this provision for 
 obtaining an inspection of it: The Court before which an action 
 is pending, or a Judge or Justice thereof, may, in their discre- 
 tion, and upon due notice, order either party to give to the 
 other, within a specified time, an inspection and copy, or per- 
 mission to take a copy, of any books, papers, and documents in 
 his possession, or under his control, containing evidence relating 
 to the merits of the action, or the defence therein. If compliance 
 with the order be refused, the Court, on motion, may exclude 
 the paper from being given in evidence, or punish the party re- 
 fusing or both. 
 
 Besides the mode thus pointed out by the Code, in which to 
 obtain an inspection of an instrument in the hands of an adverse 
 party, there is another mode which obtains in practice, of com- 
 pelling such party to produce original papers, namely, by 
 serving on him* or his attorney a wi'itten notice to produce them; 
 not that, pn proof of such notice, he is compellable to give evi- 
 dence against himself, but to lay a foundation for the introduc- 
 tion of secondary evidence of the contents of the document or 
 writing, by showing that the other party has done all in his 
 power to produce the original. (1 Greenl. on Ev. ^ 560.) A 
 party is not bound to produce a paper, imless the opposite party 
 has given him notice for that purpose; {Waring vs. Warren, 1 
 Johns. 340;) and where the paper on which the action is 
 founded is in possession of the adverse party, and the other 
 party has not given notice to produce it, whereby to entitle 
 himself to prove its contents, he will be nonsuited. {Rogers 
 vs. VanHbesen, 12 Johns. 221.) 
 
 Where the notice to produce has been regularly sei"ved, and 
 
410 NEW YOKK JUSTICE. 
 
 the instrument is not produced, parol evidence may be given 
 of its contents. (7 Johns. 19; 11 id. 446; 13 id. 539; 18 id.lbl; 
 Thallhimer vs. Brinckerhoff, 6 Cowen, 90.) But before such 
 evidence is admitted, it should be shown that the instrument is 
 in existence, and iu the possession or power of thp other party, 
 and that it is genuine. If the paper is produced, and the party 
 producing it claims an interest under it, its execution need not 
 be proved. (12 Johns. 233; 17 id. 158^ McPherson vs. Raih- 
 ione, 7 Wend. 216.) But where the party producing the in- 
 strument claims no interest under it, it must be regularly 
 proved. {Jackson vs. Kingsley, 17 John. 158.) If the party 
 refuses to produce the paper, the refusal does not afford any 
 presumptive evidence of its contents, or any inference as to the 
 truth of the fact to prove which it is called for. (i. & F. Ins. 
 Co. vs. M. F. Ins. Co. 7 Weiid. 31.) 
 
 There are three cases in which a notice to produce is not 
 necessary: 1st. Where the instrument to be produced and thai; 
 to be proved are duplicate originals; for, in such case, the origi- 
 nal being in the hands of the other party, it is in his power to 
 contradict the duplicate original, by producing the other, if 
 they vary; (1 Greenl. on Fv. § 561; Hvhard vs. Russell, 24 
 Barb. 404;) 2d. Where the instrument to be proved is itself a 
 notice, such as a notice to quit or notice of the dishonor of a 
 bill of exchange; (Johnson vs. Haight, 13 Johns. 470;) 3d. 
 Where the form of the pleadings, or of the action, gives a party 
 notice that the plaintiff intends to ctarge him with the posses- 
 sion of the instrument, (id. 90; 17 id. 293; 20 id. 63; 3 Wend. 
 486; 13 id. 505; Fdwards ys. Bonneau, 1 Sandf. 610.) 
 
 The notice may be directed to the party, or to his attorney, 
 and may be served on either It must describe the writing de- 
 manded, so, as to leave no doubt what particular instrument is 
 intended to be called for. (1 Greenl. on Fv. \ 562.) What is 
 a reasonable notice must depend upon the circumstances of the 
 case. Where the paper is in Court, or near at hand, a notice 
 after the trial has commenced may be sufficient. (3 Wend. 296; 
 7 «d!. 216; Hammond vs. Hopping, 13 id. 505.) But where the 
 paper is at a distance, the party or his attorney is not bound, 
 upon receiving notice, to leave the Court to procure it. (id,; 
 Gorham vs. Gale, 7 Cow, 739.) 
 
 If the paper is iu the possession of the attorney for the ad- 
 
PKIVATE WRITINGS. 411 
 
 verse party, the party desiring it must give notice to produce 
 it; he cannot have the benefit of the evidence by subpoenaing 
 the attorney to produce it, and compelling Mm to testify, if it 
 ■was delivered to Mm by his client as supporting the action or 
 defence. (4 Wend. 558; McPherson ys. JRathbone, 7 id. 216.) 
 
 (2.) Mode of proving private writings. 
 
 The Code,. § 388, makes the following provision in regard to 
 the proof of private writings: Either party may exhibit to the 
 other, or to' his attorney, at any time before the trial, any paper 
 material to the action, and request an admission in writing of 
 its genuineness. If the adverse party or his attorney fail to 
 give the admission, within four days after the request, and if 
 the party exhibiting the paper be afterwards put to expense in 
 order to prove its genuineness, and the same be finally proved 
 or admitted on the trial, such expense, to be ascertained at the 
 trial, shall be paid by the party refusing the admission, unless 
 it appears to the satisfaction of the C6urt that there were good 
 reasons for the refusal. 
 
 If the adverse party or his attorney refuses to give the admis- 
 sion, the instrument, being produced in Court, must be proved 
 in one of the following ways: 
 
 1st. If it is not attested by a subscribing witness, it will be 
 sufficiently proved by competent proof that the signature of 
 the person, whose name is subscribed thereto, is genuine. After 
 proof that the signature is genuine, the law presumes that the 
 instrument is genuine throughout, when there are ho indications 
 to be found upon it to rebut such a presumption. (12 8hepley, 
 254.) If the instrument appears to have been altered, it is 
 incumbent on the party offering it in evidence, to explain this 
 appearance. (1 Greenl. on Ev. \ 565.) 
 
 2d. If the instrument has been attested by one or more sub- 
 scribing witnesses, it must be proved by them or one of them. 
 {id. § 569.) The subscribing witness must be called, for the 
 reason that he is the person selected and agreed on by the par- 
 ties as the witness of their act in making the instrument, and 
 because he may be able to state the time of the execution, and 
 ^ other material facts attending the transaction, which may not 
 be within the knowledge of any other person. {Hollenback vs. 
 Fleming,' 6 Mill, SOS,) This rule is of universal application, 
 
412 NEW YOEK JUSTICE. 
 
 and is extended to every species of writing attested by a wit- 
 ness. (2 Starhie N. P. 180; 6 Binney, 16; 3 Johns. All; 
 Henry vs. ^ishoj), 2 Wend. 575.) The subscribing witness must 
 have been present when the instrument was executed, and must 
 then have subscribed his name to it as a witness of its execu- 
 tion, (id.) He need not, liowever, have been present at the 
 very moment of its execution; for, if he is called in by the par- 
 ties immediately afterwards, and told that it is their deed or 
 agreement, and requested to subscribe his name as a witness, 
 that will be enough. The execution by the parties, and the 
 subscribing by the witness, are then considered as parts of the 
 same transaction. (1 Espinasse, 97; 3 id. 171; 3 Washington's 
 O. O. It. 31, 42.) But, although the witness was present at 
 the execution, if he did not subscribe the instrument at that 
 time, but did it afterwards, without the request of the parties, 
 he is not a good subscribing witness. He may prove the instru- 
 ment, if there was no attesting witness, because he saw it exe- 
 cuted, and there is no better evidence of the execution. But, 
 if there was a subscribing witness at the time, he must be 
 called. (2 Wend, bib, supra; 3 Campbell, 232.) Proof of the 
 confession or acknowledgment of the party, that he executed 
 the instrument, will not be received as a substitute for the tes- 
 timony of the subscribing witness. (2 East, 183; 3 Johns. 47; 
 6 Hill, 303, supra; 1 E. Z), Smith's, 153; King ys.- Smith, 21 
 Barb. 15,8.) 
 
 To the rule which requires the production of the subscribing 
 witness, there are several exceptions. The first is, where the. 
 instrument is thirty years old, in which case it is said to prove 
 itself. (3 Johns. Oases, 283; 5 Oow. 221; 4 WmU. 277; 7 id. 
 371; 11 id. 603; Troup vs. Hurlbvt, 10 Barb. 354.) 
 
 A second exception is, where the instrument is produced 
 pursuant to notice, by an adverse party who claims an interest 
 under it, or is a party to it. In such case, the party producing 
 the instrument is not permitted to call on the other for proof 
 of its execution; for, by claiming an interest under it? he ad- 
 mits its execution. (12 Johns. 233; 17 id. 158; McPherson 
 vs. Rathbone, 7 Wend. 216.) 
 
 A third exception arises where a party, either from physical 
 or legal causes, is unable to produce the subscribing witness. 
 Thus, if the witness is proved or presumed to be dead, (1 
 
PRIVATE WRITINGS. 413 
 
 Johns. Cases, 230; 9 Oow. 140; Van Rensselaer vs. Jones, 
 
 2 Barb. 644,) or cannot be found, after diligent inquiry, 
 (8 Johns. 121; 11 id. 64; 9 Wend. 162,) or is out of the 
 jurisdiction of the Court, (4 id. 313; People vs. Rowland, 5 
 Barb. 449,) the instrument may be proved by proving his 
 hand-writing. (4 Johns. 461; Lush vs. Druse, 4 Wend. 313.) 
 Where there are two witnesses to a deed, both of whom are 
 dead, proof of the hand-writing of either entitles it to be read 
 in evidence. (9 Cow. 140; 2 Barb. 644, swpra.) The declara- 
 tions of the witness are admissible, to show that he is beyond 
 the jurisdiction of the Court, (5 id. 449, supra,) and his death 
 may be proved by a party in interest, or a party to the record. 
 [Jackson vs. Davis, 5 Cow. 123.) 
 
 If the subscribing witness denies the execution of the instru- 
 ment, it majr be established by other evidence. [Douglas, 216; 
 
 3 Bspinasse, 173, note; Hall vs. Rhelps, 2 Johns. 451.) If the 
 hand-writing of the witness cannot be proved, then proof of the 
 hand- writing of the parties will be sufficient to authorize the 
 reception of the instrument. [McJPherson vs. Rathbojie. 11 
 Wend. 96.) 
 
 The hand-writing of the party, or of the attesting witness, 
 may be proved by a witness who has had previous knowledge 
 of it, derived either from having seen the person write, or from 
 authentic papers received in the course of business. (2 Johns. 
 Cases, 211; 5 Johns. 144; Johnson vs. Duverne, 19 id. 134.) 
 But, if the witness has had no previous knowledge of the hand- 
 writing, he cannot be permitted to decide on it in Court, from 
 a comparison of hands. (9 Cow. 94; 5 Hill, 182; People vs. 
 Shooner, 1 Den. 343.) The testimony of experts, or of per- 
 sons supposed to be skilled in detecting forgeries, as to the 
 - genuineness of an instrument, based upon a mere inspection 
 of the instrument itself, is not admissible, (id.; Phoenix F. 
 Ins. Co. vs. Philip, 13 Wend. 81.) 
 
 (3.) Admissibility of shop-books. 
 
 "We come now to the consideration of the admissibility of a 
 party's shop-books in his own favor. The enti-ies in such books 
 may be divided into entries made by the clerk of the party, 
 and entries made by the party himself. 
 
 In the former case, to render the entries made by the clerk 
 
414 NEW YORK JUSTICE. 
 
 admissible as evidence of goods sold, they must have been 
 made by him in the course of his duty, in books kept for the 
 purpose, and contemporaneously with the delivery of the 
 goods, (1 Greenl. on Ev. § 117,) and the clerk must be dead. 
 {Brewster \8. Doane, 2 Hill, 537; 2 8alkeld, 690.) If he is 
 living, though out of the State, he must be called, or examined 
 on commission; otherwise, his entry or memorandum cannot 
 be received. (6 Oow. 162; 1(5 Wend. 586; 2 Hill, 537, supra.) 
 If the clerk is called, his evidence must be governed by the 
 same rules as those before stated in respect to refreshing the 
 memory of witnesses by permitting them to inspect wi'ittea 
 memoranda made by them. {Ante p. 375.) 
 
 In the latter case, with respect to the admission of books kept 
 by the party himself, the true rule is well stated in the case of 
 Voshurgh vs. Thayer, (12. Johns. 461,) where the Court remark, 
 in speaking of the admissibility of the plaintiff's books, as 
 evidence of his demand: "In a case like the present, it is 
 believed that the usage and the necessity of admitting such 
 proof, has been so long sanctioned and felt in our Courts of 
 Justice, that it is now too late to question its admissibility. The 
 admission of books of accoimt in evidence, under proper limita- 
 tions and restrictions, is not calculated to excite alarm, or to 
 produce injurious consequences. They are not evidespce of 
 money lent; because such a transaction is not, in the usual 
 course of business, a matter of book account. {Case vs. Potter, 
 8 id. 212.) They are not evidence in the case of a single charge; 
 because there exists, in such case, no regular dealing between 
 the parties. {Corning vs. Ashley, 4 Den. 354.) They ought 
 not to be admitted where there are several charges, unless a 
 foundation is first laid for their admission, by proving that the 
 party had no clerk, that some of the articles charged have been 
 delivered, {id,) that the books produced axe the account-books 
 of the party, and that he keeps fair and honest accounts; (11 
 Wend. 568, 7 Barh. 107; Foster vs. Coleman, 1 E. D. Smith, 
 85;) and this by those who have dealt and settled with him. 
 Under these restrictions, from the necessity of the case, and 
 from the consideration that the party debited is shown to have 
 reposed coniidence, by dealing with and being trusted by the 
 other party, they are evidence for the consideration of the jury." 
 In addition to the requisites thus stated, there must also have 
 
PRIVATE WRITINGS. 415 
 
 existed, to render the books admissible, a right to charge, at the 
 time when the service was rendered, or the goods delivered. 
 {Merrill vs. J. & 0. B. R. Co. 16 Wend. 586.) The oath of 
 the party, is not allowed. {Sickles vs. Mather, 20 id. 72.) 
 
 If a party oifers his books, he must produce all of them, and 
 must allow the opposite party the benefit of all the entries they 
 contain; (15 Johns. 409; 7 Barb. 107, suprd;) and if the books 
 are offered to establish certain matters, with the qualification 
 that they shall not be I'eceived to prove other matters, to show 
 which' they are equally competent, they should be rejected. 
 (Winants vs. Sherman, 3 Hill, 74.) After books of account 
 have been introduced in evidence, they become the property of 
 both parties as evideiice, and the party producing them cannot 
 be allowed to withdraw them from the consideration of the jury, 
 without the consent of the opposite party. {Olinton vs. Row- 
 land, 24 Barb. 634. X 
 
 The party against whom the books are offered may prove any 
 circumstances which affect their credit, and thus render them 
 incompetent. Thus, he may show that gross or material altera- 
 tions have been made, or that entries have bben made since the 
 controversy arose, and even that they were not made at or near 
 the time of the transaction. In short, anything may be proved 
 which will show that the books are unworthy of credit; and, if 
 the proof sustains the objection, it is the duty of the Court to 
 reject the evidence as incompetent, and leave the party to his 
 common law proof. (7 id. 107, supra; 2 Massachusetts^ Rep. 
 217.) It is not an invariable rule that a party is required to 
 produce two witnesses who have dealt and settled accounts with 
 him, to testify that he keeps fair and honest accounts, before he 
 can introduce his books as evidence. If the proof is in ^ther 
 respects sufficient, a single witness is enough to prove the cor- 
 rectness- of the book so far as to render it competent. In 
 general more witnesses are required, because it rarely happens 
 that one witness, alone, knows all the facts which constitute the 
 preliminary proof. The credit of the book may be greatly 
 weakened', where it rests upon the testimony of a single witness, 
 but it is competent, if the witness testifies to all the requisite 
 preliminary facts. (Beattie vs. Qua, 15 Barb. 132.) 
 
416 NEW yOEK JUSTICE. 
 
 19. Evidence in Particular Actions. 
 
 Having thus considered the general rules of evidence, we 
 propose now to consider the particular evidence applicable to 
 some of the actions, and subjects and incidents of actions, which 
 most usually arise in Justices' Courts. 
 
 (1.) Agency. 
 
 It may be stated as a general rule, that the authority of an 
 agent may be proved by words spoken, or by any writing, - 
 under seal or not, or by acts and implications. {Story on 
 Agency, § 47.) Thus, an authority to sign promissory notes 
 may be proved by verbal communications, or by implication. 
 [id. § 50.) But where the act to be done is required to be done 
 by a writing under seal, there the authority to do it must also 
 be under seal, and be produced. (HanforcL vs. McWair, 9 
 Wend. 54.) The authority of agents of corporations may be 
 proved by parol evidence, and their appointment, and the ex- 
 tent of their authority, may be established by circumstances. 
 {Perkins vs. Wash. Ins. Co., 4 Coio. 645.) If the authority 
 of the agent was verbally conferred, the agent himself is a 
 competent witness to prove it. (1 Greenl. on Ev. \ 416.) 
 
 If the relation of principal and agent did not exist at the 
 time of the transaction, it may be shown to have arisen after- 
 wards, by evidence of a subsequent ratification by.the principal; 
 (8 Gow. 60; 4 Wend. 465; 5 Hill, 107; Farmers Loan and 
 Trust Go. vs. Walworth, 1 Goms. 403;) though, if the action 
 is against the agent, on the ground that he had no authority to 
 use the name of his principal, he caimot set up in defence a 
 subsequent ratification, but must show that he had authority at 
 the time the act was done. {Rossiter vs. Hossiterj 8 Wend. 
 494.) The understanding of the mutual agent of the buyer and 
 seller of chattels as to the terms of sale, unless communicated 
 by him to one party, and acceded to or not objected to, by the 
 other, is not evidence of a contract which will bind both. 
 {Fiedler vs. Tucker, 13 IJow. 9.) 
 
 (2.) Assumpsit. 
 The Code having abolished all forms of actions, the action 
 of assumpsit, eo nomine, no longer remains; but, though its 
 
ASSUMPSIT. 417 
 
 distinctive appellation is taken away, the action, and the rules 
 of evidence applicable to it, will endure as long as right and 
 remedy have any jjlace in a Court of Justice. The action is 
 now called an action arising on contract for the recovery of 
 money only, {Code, § 53,) and is founded upon a promise or 
 undertaking of the defendant, not under seal; the plaintiff 
 always averring substantially that the defendant undertook and 
 promised to pay the money sued for, or to do the act men- 
 tioned. 
 
 We have before spoken of express and implied contracts. 
 {Ante, p. 38.) One great difference between them is in the mode 
 of proof. In an action on an express contract, the evidence 
 of the promise is direct, the contract being produced; while in 
 an action on an implied contract it may be circumstantial, to 
 be considered and weighed by, the jury. Thus, in an action 
 for work and labor, under a written contract, the production 
 of the conti-act evidences the promise. If the contract was 
 verbal, proof of the services rendered, and of a request, war- 
 rant the legal implication of a promise to pay for them, and, 
 after verdict, the promise is presumed to have been made. 
 {Hicks vs. Burhans, 10 Johns. 243.) 
 
 In all actions upon contracts not under seal, except actions 
 by endorsees upon bills and notes, the plaintiff must prove a 
 consideration for the alleged promise of the defendant, {Bailey 
 vs. Freemani^^ id. 280,) and all the other material facts alleged, 
 such as, performance of conditions precedent, (14 Wend. 257; 
 16 id. 622; Paige vs. Ott, 5 Den. 406,) notice and demand, 
 when necessary, &c. ; and, if the action is for the non-delivery 
 of goods at a particular time and place, he must prove readi- 
 ness and willingness to receive and pay for the goods. (12 
 Johns. 209; 5 Cow. 404; 13 Wend. 285; Coonley vs. Anderson, 
 1 Hill, 519.) So, also, in actions for goods sold and delivered, 
 money lent or paid, or materials furnished, where there is no 
 written evidence of the contract, a request by the defendant 
 should be proved; (3 Johns. 434; 8 id. 436; Beach vs. Van- 
 denburgh, 10 id. 361;) for, generally, no man can make himself 
 a creditor of another, unsolicited and unasked. Where there 
 has been a subsequent express promise, or a subsequent assent, 
 the. jury may find a previous request; and the assent may bo 
 .27 
 
418 NEW YORK JUSTICE. 
 
 inferred from the defendant's knowledge of, and silent acquies- 
 cence in, the plaintiff's act. (2 Greenl. on JSv.^i^ 107, 108.) 
 
 Where there are several plaintiffs, it must be shown that the 
 contract was made with them all; and, where the plaintiff sues 
 in a particular character, as guardian, or receiver, he must show 
 how he was apj)ointed. (17 Wend. 197; 4 Den. 80; White vs. 
 Low, 7 Barb. 204; 8 Cow. 235.) 
 
 , In an action for money lent, the loan must be proved; 
 (4 De'/t: 108; Bogert vs. Morse, 1 Corns. 377;) and, in an 
 ■action for money paid, it must appear that money, or its equi- 
 valent, was actually advanced. (7 Johns. 132; 8 id. 202; 11 
 id. 464; Van Ostrand vs. Reed, 1 Wend. 424.) In the latter 
 case, where no express order or request has been given, it will 
 ordinarily be sufficient for the plaintiff to show, that he has 
 paid money for the defendant for a reasonable cause, and not 
 officiously. (4 Taunton, 190.) 
 
 In an action for money had and received, the plaintiff's claim 
 may be sustained by any legal evidence which shows 'that the 
 defendant has received or obtained possession of the money of 
 ■the plaintiff, and ought, in equity and good conscience, to pay 
 it over to him. (2 Greenl. on Ev. § 117.) Thus, evidence of 
 the rescision of a contract is admissible to sustain ao action to 
 recover back money paid upon it. (5 Johns. 85; Raymond vs. 
 Brainard, 12 id. 274.) Positive evidence that the defendant 
 has received money belonging to the plaintiff, is npt in all cases 
 necessary; but where, from the facts proved, it may be fairly 
 presumed that he has received the plaintiff's money, the plain- 
 tiff is entitled to recover. (Tvttle vs. Mayo, 7 Johns. 132.) 
 
 (3.) Common Carriers. 
 
 In an action against a common carrier, it is necessary for the 
 plaintiff to establish, first, the contract; secondly, the delivery 
 of the goods, or the presence of the passenger in the convey- 
 ance; and thirdly, the defendant's breach of his contract. 
 
 Whatever may be the character of the demand against the 
 defendant, whether it be for the wrongful conversion of goods, 
 or for their non-delivery, or for misfeasance or malfeasance 
 while in charge of them, the contract, as averred in the com- 
 plaint, must be proved. (1 Bingham's JSf. C. 162.) 
 
 If the defendant is shown to be a common carrier, the law 
 
COMMON CARRIERS. 419 
 
 supplies proof of the contract, so far as regai^ds the extent and 
 degree of his liability. (2 Oreenl. on Ev. \ 210.) But, if he 
 is not a common carrier, the terms of his undertaking must be 
 proved. And, in either case, if there w^as an express contract, 
 that alone must be relied on, and no other can be implied. (3 
 Bosanquet & Puller, 416.) The defendant is proved to be a 
 common carrier, by evidence that he undertakes to carry for 
 persons generally, exercising the business as a public employ- 
 ment, and holding himself out as ready to engage in the' trans- 
 portation of money or goods for hire, as a business, and not as 
 a casual occupation. {Story on Bailments, § 495; 2 Gh'eenl. on 
 Ev. \ 211; Orange Bank vs. Brown, 3 Wend. 158.) 
 
 The contract must also appear to have been made with the 
 plaintiff, and by the defendant. . When, therefore, goods are 
 sent by the vendor to the vendee, at the risk of the latter, the 
 contract of the carrier is with the vendee, whose agent he be- 
 comes by receiving the goods, and who alone is entitled to sue; 
 unless the vendor expressly contracts with the carrier, in his 
 own behalf, for the payment of the- freight, or unless the prop- 
 erty was not to pass to the vendee until the goods reached his 
 hands, m which case the vendor is the proper plaintiff. (1 
 Term Rep. 659; 8 id. 330.) 
 
 If a receipt was given for the goods it should be produced; 
 and notice should be given to the defendant to produce his 
 book of entries and way-bill, if any, in order to show a delivery 
 of the goods to him., (2 Oreenl. on Ev. \ 213.) The plaintiff 
 must also |)rove what orders were given at the time of delivery, 
 as to carriage of the goods, and what direction was upon the 
 package. (2 Starkie on Ev. 331.) It has been held that, in 
 an action to recover the value of a trunk and contents lost on 
 the defendants' railroad, the fact that plaintiff had possession 
 of a baggage-check, coupled with the testimony of the baggage- 
 master as to the custom of giving checks, was sufficient proof 
 that plaintiff was a passenger and that defendant took his bag- 
 gage. {Davis vs. Cayuga & 8. B. JR. Co. 10 How. 330.) 
 
 To support an averment of the loss of goods, it is enough for 
 the plaintiff to show that the goods have not in fact arrived. 
 (2 StarJde on Ev. 335.) 
 
 A carrier may avoid the charge of the plaintiff, by evidence 
 .of an (express contract limiting his common law liability; {^orr 
 
420 
 
 NEW YORK JUSTICE. 
 
 VS. JV. J. Steam JSf. Co. 4 Sandf. 136;) or by evidence that the 
 loss resulted from the negligence of the plaintiff in the packing 
 or deliveiy of the goods, or was occasioned by the act of God, 
 or of the public enemy; but in all such cases the burden of 
 proof is upon the carrier. (2 Greenl. on Ev. \ 220.) 
 
 (4.) Damages. 
 
 In the proof of damages, the plaintiff is not confined to the 
 precise number, sum, or value laid in his complaint, nor is he 
 bound to prove the breach of contract to the full extent alleged. 
 {id. \ 260.) Though he cannot recover greater damages than 
 he has claimed, yet the jury may find -damages for the value of 
 goods wrongfully taken, beyond the \^lue alleged. (1 Ware, 
 147.) So, where the plaintiff has claimed damages for a total 
 loss of his property or goods, it is sufficient for him to show a 
 partial loss. (2 Burrow, 905.) So, also, in covenant or assump- 
 sit, proof of part of the breach alleged is sufficient to entitle the 
 plaintiff to recover. 
 
 It is frequently said, that in actions for a wrong, evidence is 
 admissible in aggravation or in mitigation of damages. But this 
 means nothing more, than that evidence is admissible of facts 
 and circumstances which go in aggravation or mitigation of the 
 injury itself The circumstances thus proved ought to be those 
 only which belong to the act complained of. The plaintiff is 
 not justly entitled to receive compensation beyond the extent 
 of his injury; nor ought the defendant to pay to the plaintiff 
 more than the plaintiff is entitled to receive. (2 Greenl. on Ev. 
 % 266.) 
 
 In giving evidence of damages, both parties must be confined 
 to the pirincipal transaction complained of, and to its attendant 
 circumstances and natural results, for these alone are put in 
 issue. The results include all the damages to the plaintiff of 
 which the act of the defendant was the efficient cause, {id. 
 \ 268.) 
 
 Whether evidence of intention is admissible to affect the 
 amount of damages, depends upon its materiality to the issue. 
 Where an evil intent has manifested, itself in acts and circum- 
 stances accompanying the principal transaction, they constitute 
 part of the injury, and, if properly alleged, may be proved, 
 like any other facts matei-ial to the issue. Thus, in trespass 
 
INFANCY. ' 421 
 
 for taking goods, besides proof of their value, the inconvenience 
 and injury occasioned to the plaintiff by taking them away 
 under the particular circumstances of the case, and the abusive 
 language and conduct of the defendant at the time, are admissible 
 in evidence. (2 Greenl. on, Uv. § 272; 2 Day, 259; 5 id. 140.) 
 
 And generally, whenever the wrongful act of the defendant 
 was accompanied by aggravating circumstances of indignity and 
 insult, whether in the time, place, or manner, though they may 
 not form a separate ground of action, yet, if properly alleged, 
 they may be given in evidence, to show the, whole extent and 
 degree of the injury. (3 Wilson, 19.) Thus, in an action for 
 beating the plaintiif 's horse to death, evidence is admissible to 
 show the defendant's wantonness and cruelty. ( Wo7'( vs. Jenk- 
 ins, 14 Johns. 352.) 
 
 The defendant, on the other hand, may show any other cir- 
 cumstances of the transaction in mitigation of the injury done 
 by his trespass. Thus, where the defendant shot the plaintiff's 
 dog soon after he had been worrying the defendant's sheep, this 
 fact, and the habits of the animal, were held to be competent 
 evidence for the defendant, in the estimation of damages. (4 
 Garrington & Payne, 568.) And, in trespass for carrying away 
 the plaintiff's goods, the defendant may show that the goods did 
 not belong to the plaintiff, and that they have gone to the use 
 of their owner. (9 Pickering, 551.) 
 
 (5.) Infancy. 
 
 Infancy is a personal privilege, of which no one but the in- 
 fant can avail himself; (2 Johns. 279; Hartness vs. Tliompson, 
 5 id. 160;) and the burden of proof rests on him, to show his 
 infancy, even though the issue is upon a ratification of his con- 
 tract after he became of age. (1 Term Re]p. 648.) The in- 
 fant's age may be proved by the testimony of persons acquainted 
 with him from his birth. (2 Greenl. on Ev. § 363.) The in- 
 fant's admissions are competent evidence against him, both in 
 civil and criminal cases. {Haile vs. Lillie, 3 Hill, 149.) 
 
 The defence of infancy may be avoided, by showing that the 
 contract which forms the subject matter of the action was for 
 necessaries furnished, and that the infant had no means of ob- 
 taining them except by the pledge of his personal credit; or by 
 showing a ratification of the contract, by a new promise, after 
 
422 NEW YORK JUSTICE. 
 
 he became of age. (2 Paige, 419; 1 Den. 460; Smith vs. Oli- 
 phant, 2 Sand/. 306.) But, in the latter case, the promise must 
 have been to a party in interest, or to his agent; or there must 
 have been an explicit admission of an existing liability, from 
 which a promise may be implied. A mere admission to a 
 stranger, that such a contract existed, is not a ratification. (3 
 Wend. 479; Bigelow vs. Grannis, 2 Hill, 120.) Evidence that 
 articles furnished were necessaries, may be rebutted by proof 
 that the infant lived under the roof of his parent, who provided 
 him with such things as in his judgment appeared proper. (2 
 Gfreenl. on Ev. \ 366; 9 Johns. 141; Kline vs. L'Amoureux, 2 
 Paige, 419.) 
 
 (6.) Limitations. 
 
 Where the statute of limitations is set up in defence, by a 
 plea that the cause of action did not accrue within the period 
 prescribed by law prior to the commencement of the action, and 
 that is denied, the burden of proof is on the plaintiff to show 
 both a cause of action, ,and that the action was commenced with- 
 in the period prescribed. (2 Greenl. on Ev. \ 431.) We have 
 heretofore stated the rules as to when an action is commenced, 
 and as to when the attempt to commence an action is equivalent 
 to its commencement, within the meaning of the statute of liftii- 
 tations. {Ante,'p]). 140, 156.) 
 
 The plea of the statute may be avoided, by showing that the 
 plaintiff was, at the time the cause of action accrued, under 
 some one of the disabilities mentioned in the Code; (§ 101;) 
 or, that the defendant was out of the State when the cause of 
 action accrued, and the action was commenced within the pre- 
 scribed time after his return; {id. \ 100;) or that, after it 
 accrued, he departed from and resided out of the State; (ed.;) 
 or that the claim has been recognized by him as valid, by an 
 acknowledgment or a new promise within the statute period! 
 (2 Greenl. on Ev. \\ 436, 440.) 
 
 No acknowledgment or promise is sufficient evidence of a 
 new or continuing contract, whereby to take the case out of 
 the operation of the statute in regard to the time of commenc- 
 ing civil actions, unless the same be contained in some writing 
 signed by the party to be charged thereby; but that provision 
 does not alter the effept of any pajrment of principal or inte- 
 
PABTNEESHIP. 423 
 
 rest. (Code, § 110.) The payment of principal or interest is 
 considered to be a sufficient acknowledgment that the whole 
 debt is still due, to authorize the presumption of a promise to 
 pay the remainder. (2 Gremil. on Ev. \ 444.) 
 
 The acknowledgment, in order to take the case out of the 
 statute, must be such as raises an implication of a promise to 
 pay, and its terms must all be taken togetlier, so that it may be 
 seen whether, upon the whole, the party intended distinctly to 
 admit a present debt or duty. {Sands vs. Gelston, 15 Johns. 
 511.) If the acknowledgment admits the indebtedness, but 
 asserts an intention to rely upon the statute of 'limitations as a 
 defence, it is not sufficient as evidence of a new promise. 
 (Danforth vs. Culver, 11 zd. 146.) 
 
 (7.) Partnership. 
 
 The question of partnership arises ifi actions between part- 
 ners themselves, or between them and third persons. When 
 they are plaintiffs, they must prove either an express contract 
 by the defendant with them all, or the joint interest of all in 
 the subject of the suit; and they must show that all who sue 
 were partners at the time the contract was made. (2 Greenl. 
 on Ev. § 476; 3 Campb. 239.) 
 
 The evidence of a partnership usually consists in the oral 
 testimony of clerks, or other agents, or of persons who know 
 that the alleged partners have actually carried on business in 
 partnership. But it is unnecessary, even in criminal cases, to 
 produce any deed or other agreement by which the copartner- 
 ship has been constituted. {McGregor vs. Cleveland, 5 Wend. 
 475.) - General reputation, however, uncorroborated by facts, 
 is not sufficient evidence of a partnership. (20 id. 81; 22 id. 
 264; Smith vs. Griffith, 3 Hill, 333.) » 
 
 In an action against' partners, upon a contract, it is essential 
 that tJie evidence of partnership should extend to all the 
 defendants; (4 Taunt. 582;) otherwise the plaintiff will be 
 nonsuited. It is sufficient, however, for the plaintiff to show 
 that the defendants have acted as partners, and that, by their 
 habit and course of dealing, conduct, and declarations, they 
 have induced those with whom they dealt to consider them as 
 partners. (2 StarMe JST. P 585, 586.) And, even though the 
 partnership was established- by a written agreernent, yet, as 
 
424 NEW YORK JUSTICE. 
 
 . 1 
 
 against the parties themselves, it may be proved by Oral evidence 
 of partnership transactions. (1 Starlde N. P. 405.) A partner- 
 ship may also be proved against the parties by their respective 
 declarations and admissions, whetHer verbal, or in letters or 
 other writings; (2 Oreenl. on Ev. \ 484;) but the act, declara- 
 tion or admission of one person, is not competent evidence as 
 against others, to establish the fact that they are his partners, 
 though it is ordinarily sufficient to prove it as against himself. 
 (10 Johns. 66; McPherson vs. Rathbone, 7 Wend. 216.) But 
 if, in an actipn against three as partners, two have acknow- 
 ledged the existence of articles of copai^nership, which the 
 third, on due notice, refuses to produce at the trial, ,the jury 
 will be warranted in finding the fact of partnership upon this 
 evidence alone. (Whitney vs. Stirling, 14 Johns. 515.) 
 
 Proof of partnership may be answered by evidence of an 
 arrangement between the partners, by which either the power 
 of the acting partner to bind the firm, or the liability of certain 
 of the partners on the contracts of the firm, was limited, pro- 
 vided the plaintiff had express notice of the limitation. (1 
 Campb. 404.) 
 
 (8.) Payment. 
 
 When a defendant, in answer to the complaint of the plaintiff, 
 pleads payment of the demand therein made, the burden of proof 
 lies upon him to prove the pajonent of the money, or of some- 
 thing accepted in its stead, to the plaintiff, or to some person 
 authorized in his behalf to receive it. 
 
 If a receipt was given for the money, it is proper and expe- 
 dient to produce it; but it is not necessary; parol evidence of 
 the payment being admissible, notwithstanding the written 
 rdbeipt, and without accounting for its absence. (7 Campbell, 
 334.) If it is produced, it is not conclusive against the plaintiff, 
 but may be disproved and contradicted by parol evidence. 
 {Ante, p. 352.) If the payment was made to a third person, as 
 the agent of the plaintiff, the agency may be shown by parol 
 evidence, in the mode already pointed out. {id. p. 416.) 
 
 As to the mode of payment, it may be by any lawful method 
 agreed upon between the parties, and fully executed. It may 
 be in genuine bank notes, (5 Paige, 48; Hull vs. Fisher, 9 
 Barb. 17,) or in negotiable instruments, such as promissory 
 
PROMISSORY NOTES. 425 
 
 notes. But. if the payment has been made by giving the note 
 of a third person, it is incumbent upon the defendant to prove 
 that it was accepted in payment of the precedent debt; (2 John. 
 Cases, 438; 5 Johns. 68; 9 id. 310; 5 Wend. 85; 1 Hill, 516; 
 St. John vs. Purdy, 1 8 and. 9;) and whether such note was 
 taten absolutely as payment, or not, is a question for the jury. . 
 {Johnson vs. Weed, 9 Johns. 310.) But proof of the giving of 
 the note of the debtor, and of its acceptance by the creditor, in 
 satisfaction of the precedent indebtedness, will not support a 
 plea of payment, unless it is also shown that the note was paid. 
 And a creditor, although he has accepted the note of his debtor 
 in payment, can maintain an action upon the original indebted- 
 ness; (15 id. 247; 1 Hill, 5J.6; 5 id. 448; Elwood vs. Deifen- 
 dorf, 5 Barb. 398. Bid see 3 Den. 410;) but he cannot recover 
 in such action, unless he shows that the note has been lost, or 
 produces and cancels it on the trial. (1 Johns. 34; 10 id. 104; 
 15 id. 247; 8ole vs. 8ac]cett, 1 Hill, 516.) 
 
 Payment may also be presumed or inferred by the jury, from 
 sufficient circumstances. Thus, where, in the ordinary course 
 of dealing, a security is, when paid, given up to the painty who 
 pays it, the possession of the security by the debtor, after the 
 day of payment, is prima facie evidence that he paid it. 
 (1 Starkie JST. P 374.) But payment will not be presumed 
 from the circumstances of the defendant's having drawn a check 
 on a bank, payable to the plaintiff or bearer, without proof that 
 the money has been paid thereon to the plaintiff ; and of this, 
 the plaintiff's name on the back of the check will be sufficient 
 evidence. (3 Espinasse, 196.) 
 
 (9.) Promissory notes. 
 In an action upon a promissory note, the plaintiff must prove, 
 1. The existence of the note; 2. How the c^efendant became a 
 party to it, and his subsequent contract; 3. The mode by which 
 the plaintiff derived his interest in and right of action upon it; 
 and, 4. The bi:each of contract by the defendant. {Qhitty on 
 Bills, chap. 5.) In ordinary cases, the plaintiff is not required 
 to prove a consideration for the note. (3 Johns. Oases, 5, 359; 
 d Wend. 273; 13 id. 557; 6 Hill, 336; Bank of Orleans vs. 
 Barry, 1 Ben. 116.) 
 1, The existence of the note.] The -first step on the part of 
 
426 NEW YORK JUSTICE. 
 
 the plaintiff is, to prove the existence of the note as describ/ed 
 in his complaint, and this is done by producing it. 
 
 If the instrument has been lost while it belonged to the plain- 
 tiff, he himself may be a witness to prove that fact. (2 R. 8. 
 244, § 106.) But in such case the adverse party may also be 
 exa'mmed on oath by the Justice, to disprove the loss, or to 
 account for the note. {id. 406, § 74.) t 
 
 If the lost note was not negotiable, which fact is presumed 
 until the contrary is shown, (5 Wend. 344; Blade vs. JVbland, 
 12 id. 173,) the plaintiff should be permitted to recover upon 
 the usual secondary evidence of its contents. {Mutard vs. 
 Tackingrton, 10 Johns. 104.) But the loss or destruction must 
 be accounted for, in such a manner as to repel all inferences of 
 fraud, before the secondary evidence is admissible. (12 Wend. 
 173; supra.) 
 
 If the note was negotiable, the following provisions of thp 
 statute apply: In any suit founded upon any negotiable promis- 
 sory note, or bill of exchange, or in which such note, if pro- 
 duced, might be allowed as a set-off in the defence of any suit, 
 if it appear, oji the trial, that such note or bill was lost while it 
 belonged to the party claiming the amount due thereon, parol 
 or other evidence of the contents thereof may be given on such 
 trial, and, notwithstanding such note or bill was negotiable, such 
 party will be entitled to recover the amount due thereon, as if 
 such note or bill had been produced. (2 M. S. 406, § 75.) But, 
 to entitle the party to such recovery, he must execute a bond 
 to the adverse party, in a penalty of at least double the amount 
 of such note or bill, Avith two sureties, to be approved by the 
 Justice, conditioned to indemnify the adverse party, his heirs 
 and personal representatives, against all claims by any other 
 person on account of such bill or note, and against all costs and 
 expenses by reason of such claim, {id. § 76.) These provi- 
 sions do not extend to non-negotiable instruments, {/Smith ys. 
 Rockwell, 12 Wend. 173, supra,) nor do they affect any of the 
 rights or liabilities of the parties, arising out of the proceed- 
 ings to charge the drawer or endorser. (2 Hill, 482.) And 
 an action may be maintained upon a promissory note which has 
 been accidentally destroyed, without the plaintiff's, giving the 
 indemnity required in an action upon a lost note. {Des Arts 
 vs. Le^gett, 16 JSr. 7.682.) 
 
PROMISSORY NOTES. 427 
 
 •After the note is produced, the next step is to prove the sig- 
 nature of the defendant, where, by the nature of the action or 
 the state of the pleadings, this proof may be required. The 
 usual mode of proof is, by evidence of the person's hand-writ- 
 ing, or of his admission of the fact. If the note is negotiable, 
 proof of the admission of its execution by the party making it, 
 or proof of his hand-writing, is sufficient, even though there 
 was a subscribing witness to the note, and he is neither pro- 
 duced nor accounted for. (2 Johns. 451; 3 id. 477; Shaver 
 vs. JEhle, 16 id. 201.) If the note is not negotiable, and there 
 is a subscribing witness, he must be called. {Ante, pp. 331, 
 412.) If the note was executed by an agent, his authority and 
 hand-writing must be proved. {Ante, p. 416.) 
 
 If there are several signatures, they must all be proved; and 
 an admission by one will not in general bind the others. {Ante, 
 p. 345; Thorn vs. Wright, 21 Wend. 365; 1 Espinasse, 135.) 
 If the note is signed by a partnership firm, evidence of the 
 partnership, and of the hand- writing of the partner who signed 
 the note, will be sufficient. (2 Greenl. on Ev. § 159.) 
 
 2. The relation of the defendant to the note.] The contract of 
 the defendant is generally evidenced by producing the note. He 
 will necessarily stand in the position of maker, endorser, or 
 guarantor; and where the performance by the plaintifi" of any 
 condition precedent to the liability of the defendant was neces- 
 sary, as, where the defendant was endorser, demand of payment 
 of the maker, and notice to the defendant, then the plaintiff 
 must show that he has performed the condition. The evidence 
 of such performance will be considered hereafter. 
 
 3. The interest of the plaintiff in the note.] The plaintiff 
 must also prove his interest in the note, or his title to sue there- 
 on. Where the action is betAveen the immediate parties to the 
 contract, as the payee and maker of the note, the plaintiff ordi- 
 narily has only to produce the note and prove the maker's sig- 
 nature. Where, however, the plaintiff was not a party to the 
 note, but has derived his title by means of some immediate 
 transfer, the steps of this transfer become, to some extent, 
 material to be proved. The extent to which the pi-oof must be 
 carried will generally depend upon the extent of the allega- 
 tions in the complaint. Thus, if a note made payable to A B, 
 or bearer, is-endorsed in blank by the payee, and the holder, in 
 
428 NEW YORK JUSTICE. 
 
 an action upon it against the maker, declares upon the endorse- 
 ment, he must prove it; although the allegation of the endorse- 
 ment was unnecessary, for he might have sued as bearer only, 
 in which case the endorsement need not have been proved. 
 (2 ijamph. 5; 5 Pick. 556; 2 Oreenl. on Ev. \ 163.) 
 
 The plaintiff is not bound to allege or prove any endorse- 
 ments but such as are necessary to convey title to himself. (2 
 Greenl. on Ev. % 166.) Thus, if the plaintiff is the endorsee of 
 a note which purports to be endorsed in blank by the payee 
 and by several others, it will be sufficient for the plaintiff, in an 
 action against the maker, to prove the endorsement by the 
 payee. (Pentz vs. Winterbottom, 5 Denio, 51.) All the other 
 endorsements may be stricken out, even after the bill has been 
 read in evidence. {Mottram vs. Mills, 1 Sandf. 37.) 
 
 If the plaintiff formerly held the note and parted with it, and 
 his endorsement appears upon it, still the presumption of title 
 arising from possession entitles him to recover upon it, without 
 proving that it was subsequently re-transferred to him,, and 
 without cancelling any endorsements subsequent to his own. 
 {id; 3 Wheaion, 172.) 
 
 If the note was made payable to the order of a fictitious per- 
 son, and the party sued knew that fact when he became a party 
 to it, or before he transferred it, this will dispense with proof 
 of the hand-writing of the fictitious endorser; (3 Term Rep. 
 481; 1 H. Blacks. 569;) and the note may be treated as though 
 it were payable to bearer. (1 R. 8. 768, § 5; 3 Hill, 112; 
 Coggill vs. Am. Ex. Bank, 1 Corns. 113.) 
 
 If the plaintiffs sue as endorsees of a note endorsed in blank 
 they need not prove their partnership; (3 Camp. 239;) but if 
 the note was endorsed to them specially by then- fiim name, 
 and they sue thereon, strict, proof must be given that the part- 
 nership consists of the persons who sue. {id. 240, note.) 
 
 4. The breach of contract by the defendant.'\ The engage- 
 ment of the defendant is either direct and absolute, or condi- 
 tional. In the former case, as in an action against the maker 
 ■of the note, it is not necessary for the plaintiff to show that a 
 demand of payment was made at the place where the note was 
 payable. (4 Johns. 183; 17 id. 248; 3 Cow. 147; 8 id. 271; 
 3 Wend. 13; Oreen vs. Goings, 7 Barb. 652.) In the latter 
 case, as in,an action against an endorser, or a guarantor of the 
 
PKOMISSOKY NOTES. 429 
 
 collection of a note, the undertaking of the defendant being 
 conditional, that is, to pay in case the party primarily liable 
 does not, the default of such party must be proved, unless the 
 proof is in some way dispensed with. 
 
 The party who receives a promissory note is understood 
 thereby to contract with every other party who would be enti- 
 , tied to bring an action on paying it, that he will present it in 
 proper time to the maker, or at the place where it is made pay- 
 able, for paj'ment; to. allow no extra time to the maker for 
 payment; and to give notice in a reasonable time, and without 
 delay, to every such person, of a failure in the attempt to pro- 
 cure its payment. Any default or neglect in any of these re- 
 spects will discharge every such person from responsibility on : 
 account of the non-payment of the note, and will operate, gen- ' 
 erally, as a satisfaction of any debt, demand, or value for which 
 it was given. (2 Greenl. on Ev. § 175.) In an action, there- j 
 fore, against the endorser of a promissory note, it is necessary 
 to prove a presentment of the note, and a demand of its pay- 
 ment, at the place where it was made payable; {Berry vs. 
 Robinson, 9 Johns. 121;) or, if the note was not made payable 
 at any particular place, then a demand at the residence of the 
 maker. • (14 id. 114; 19 id. 391; 3 Den. 145; 1 Barb. 158; 
 Spies vs. Gilmore, 1 Corns. 321.) And the demand must be 
 shown to have T^een ;made on the proper day, that is, the day 
 when the note fell due, or, if it fell due on a Sunday or holi- 
 day, the day before. {Laws of 1849, chap. 261.) A demand 
 of payment may be made by a notary pul^lic, or by a person 
 having a parol authority for that purpose, or by any one having 
 lawful possession of the note. {Bank of TJtica vs. Smith, 18 
 Johns. S30.) 
 
 The plaintiff must also prove that notice of the demand, and 
 of the non-payment of the liote, was given to the endorser 
 within a reasonable time. {Cayuga Co. Bank vs. Warden, 1 
 Corns. 413.) The notice may be given by a notary public, or 
 by any person duly authorized by the owner of the note; (18 
 Johns. 230, supra;) but a notice from a mere stranger will not 
 enure to the benefit of the holder. {Chanoine vs. Fowler, 3 
 Wend.nZ.) The law does not prescribe any form of notice. 
 It may be verbal, {Cuyler vs. Stephens, 4 id. 566,) or in writing. 
 All that is necessary is, that it should* be sufficient to put the 
 
480 NEW YORK JUSTICE. 
 
 endorser on inquiry, and to prepare him to pay or defend. (9 
 Wend. 279;> 21 id. 10, 1 Corns. 413, supra.) If the notice was 
 given by any other jjerson than a notary, he should be called 
 as a witness. 
 
 , Tlie statute makes the following provision in regard to giving 
 evidence of the official acts of a notary public, in protesting a 
 note for non-payment, and giving notice thereof: In case of the 
 death or insanity of any notary public, or of his absence or re- 
 moval, so that his personal attendance or testimony cannot be 
 procured in any mode provided by law, the oi-iginal protest of 
 such notary, under his official seal, upon such seal and his signar 
 ture being duly jjroved, shall be presumptive evidence of the 
 fact of any demand of acceptance or of payment, therein stated. 
 (2 a. S. 283, § 46.) Any note or memorandum made by a no- 
 tary public in his own hand-writing, or signed by him at the 
 foot of any protest,, or in a regular register of official acts kept 
 by him, shall, in the cases specified in the last section, be pre- 
 sumptive evidence of the fact of any notice of non-acceptance or 
 of non-payment having been sent or delivered, (id. § 47.) It 
 is further provided by a subsequent statute, as follows: In all 
 actions at law, the certificate of a notary, under his seal of office, 
 of the presentment by him of any promissory note or bill of 
 exchange for acceptance or payment, and of any protest of such 
 bill or note for non-acceptance or non-paymeift, and of the ser- 
 vice of notice thereof on any or all of the parties to such bill 
 of exchange or promissory note, and specifjdng the modk of 
 giving such notice, and the reputed place of residence of the 
 party to whom the same was given, and the post-office nearest 
 thereto, shall be presumptive evidence of the facts contained in 
 such certificate; but this section shall not apply to an^ case in 
 which the defendant shall annex to his plea an affidavit denying 
 the fact of having received notice of non-acceptance or of non- 
 payment of such note or bill. (Laws of 1833, chap. 271, ^ 8.) 
 If such an affidavit is made, the plaintifi" must call the notary 
 and prove the facts by him. If the attendance or testimony of 
 the notary cannot be procured, or he is dead or insane, the 
 plaintiff may give the original protest in evidence, as above pro- 
 vided for, notwithstanding the defendant has denied by affidavit 
 the receipt of any notice. (^McKnigJit vs. Lewis, 5 Barb. 681.) 
 The contents of a nt)tice of protest may be proved, without 
 
PEOMISSORY NOTES. 431 
 
 notice to produce it, either by a copy made by the witness at 
 the Same time with the original, or by parol. {Johnson vs. 
 Haight, 13 Johns. 470.) 
 
 The plaintiff need not prove that notice of the dishonor of the 
 note was»> given, if the defendant has waived his right to such 
 notice; {Coddington vs. Davis, 1 Ooms. 186; 3 Den. 17;) nor 
 need he prove a demand of payment, if that also has been waived. 
 {id.) But the burden of proof is upon the plaintiff to show a 
 waiver; and a waiver of demand will not be inferred from a 
 waiver of notice. {Backus vs. Shipherd, 11 ,Wend. 629.) 
 
 If the action is against a defendant as guarantor of the collec- 
 tion of a note, the plaintiff must give evidence of an attempt to 
 collect the money from the principal debtor. Of this attempt, 
 a judgment and execution against such dehtov are prima facie 
 evidence. {11 Wend. 622, supra.) If there has been negligence 
 or omission on the part of the holder of the note to sue the 
 principal debtor, whereby a loss has ensued, the burden of 
 proving such loss rests upon the defendant, {id.) 
 
 There are some defences, peculiar to actions on promissory 
 notes, which will now be considered. 
 
 The consideration of a note, as between the original parties 
 to it, may always be inquired into, and the want or failure of 
 consideration may be set up in bar of the action. (4 Johns. 
 296) 7 id. 26; '11 id. 50; 17 id. 301; 7 Cow. 322; 9 Wend. 
 273; 12 id. 470; Payne vs. Cutler, 13 id. 605.) Thus, such a 
 defence may be insisted on by the maker against the payee, and 
 by the payee against his endorsee. The same rule applies to 
 purchasers of paper overdue, (2 Johns. 300; 8 id. 454; 3 Cow. 
 252; 5 Wend. 600; 24. id. 97; 5 Paige, 650; DeMott vs. Star- 
 Jet/, 3 Parb. Ch. R. 403,) to purchasers with notice, {White \s. 
 Kibling, 11 Johns. 128,) and to purchasers who have given no 
 value for it. (23 Wend. 311; 1 Den. 583; Manhat. Co. vs. 
 Reynolds, 2 Hill, 140.) But on the other hand, as a general 
 rule, no defect or iniirmity of consideration, either in the crea- 
 tion or transfer of a negotiable security, can be given in evidence 
 against a bona fide holder of it, who received it for a valuable 
 consideration, before it became due, and without notice of any 
 infirmity attaching to it. (3 Caines, 279; 1 Johns. Cases, 169; 
 13 Johns. 52; Ooggill vs. Am. Ex. Bank, 1 Corns. 113.) 
 
 If the consideration has only partially failed, that may be 
 
\ 
 432 NEW YORK JUSTICE. 
 
 shown in defence 'prb tanto, where it can be inquired into at all. 
 (12 Wmd. 246; Payne vs. Cutler, 13 id. 60$,) But, in order 
 to take advantage of such partial failure, the defendant must set 
 it up in his own answer, {id.) 
 
 Promissory notes and bills of exchange enjoy the^rivilege, 
 conceded to no unsealed instrument not negotiable, of being 
 presumed to be founded upon a valid and valuable considera- 
 " tion. (9 id. 273; Bank of Troy vs. Topping, 13 id. 557.) 
 Hence it is generally unnecessary for the plaintiff to establish 
 in the first instance that a note was given for such a considera- 
 tion; {id.;) the burden of proof resting upon the defendant to 
 establish the contrary. And where a chattel mortgage given to 
 secure a note is impeached, production of the note is prima 
 facie evidence of a just debt. {Dunham vs. Whitehead, 3 Abb. 
 207.) In an action by an endorsee of a note against the maker, 
 if there are equities existing between the niaker and the payee, 
 the plaintiff's title must first be impeached before they can be 
 given in evidence. {Nelson vs. Corning, 6 Hill, 336.) 
 
 If the note was usurious in its inception, the maker may giye 
 evidence of the fact against any party who sues upon it; {Laws 
 of 1837, chap. 430, § 1;) and, if he has verified his answer, may 
 call the plaintiff to prove the usury, (id. 2.) And, generally, 
 he may call any one whose name appears upon the note, to 
 prove that it was void in its inception, for usury or other cause. 
 (5 CoTb. 23, 153; Williams vs. Walbridge, 3 Wend. 415.) 
 
 (10.) Tender. 
 
 To support the issue of a tender of money, ii is necessary 
 for the defendant to show, that the precise sum, or more, was 
 actually produced in current money, and offered to the plaintiff. 
 {Baheman vs. Pooler, 15 Wend. 637.) It is sufficient to show 
 a tender in bank notes, unless the creditor objected to the tender 
 for that reason* (3 Wheat. 333; Warren vs. Mains, 7 Johns. 
 476.) It must also be shovm that the tender was absolute; for, 
 if it was coupled with a condition, as that the holder of a note 
 should strike out an endorsement upon it, in compi-omise of 
 another matter, {Eddy vs. CHarra, 14 Wend. 221,) or that the 
 creditor should accept the amount -tendered as the whole balance 
 due, {Wood vs. Hitckcock, 20 id. 47,) or if any other terms 
 were added which the acceptance of the amount tendered would 
 
TRESPASS. 433 
 
 cause the other party to admit, it was not a good tender. The 
 tender must also be shown to have been made to the creditor 
 himself, or to his agent, or to some person who had authority 
 to receive the money for him. (1 Ganypb. 477; Smith vs. Smith, 
 2 mU, 351.) 
 
 The plaintiff may avoid a plea of tender, by showing a subse- 
 quent demand of the money, and a refusal; the burden of prov- 
 ing which, if it is denied, lies upon him. And he must also 
 prove that such demand was made by some one who was author- 
 ized to give the debtor a discharge (1 Campb. 478, note; Sort- 
 right vs. Cady, 23 Barb. 490.) 
 
 If the contract was for the delivery of specific articles, of a 
 cumbrous nature, and a breach of it is alleged, it will be suffi- 
 cient for the defendant to show that he oflFered to deliver them 
 as the jDlaintiff should direct. (3 Johns. Cases, 243; 8 Johns. 
 474; M/e>-s vs. Davis, 26 Ba^-b. 367.) And the plaintiff may 
 avoid the evidence of a readiness and offer to deliver, by show- 
 ing that the articles offered were defective in quality. {Gould 
 Vs. Banks, 8 Wend. 562.) Where a tender is an act in pais and 
 no part of the contract, evidence of the waiver of a tender by 
 the opposite party is competent and sufficient to support the 
 averment of a tender. {Holmes vs. Holmes, 5 Seld. 525.) 
 
 (11.) Trespass. 
 The substance of the complaint in an action of trespass is, 
 that the defendant has forcibly and wrongfully injured property 
 in the possession of the plaintiff. If the answer of the defend- 
 ant contains, as it probably will, a general denial of the com- 
 plaint, it will be necessary for the plaintiff to prove, 1. That 
 the property was in his possession at the time of the injury, 
 and this rightfully as against the defendant; and, 2. That the 
 injury was committed by the defendant with force. The pos- 
 session of the plaintiff may be either actual, or constructive; 
 but it must be the one or the other. {Putnam vs. Wilei/, 8 
 Johns. 432.) He must have such a right, as to be entitled to 
 reduce the property to actual possession whenever he chooses. 
 Possession of property by the agent or servant of the plaintiff, 
 is a sufficient possession by the plaintiff, to enable him to main- 
 tain an action of trespass against a third person for taking it 
 away. {AiMn ads. Buck, 1 Wend. 466.) Bare possession of 
 28 
 
434 NEW YORK JUSTICE. 
 
 a chattel is sufficient to maintain an action for the taking of it 
 by a wrongdoer. (13 Johns. 141, 561; Hoyt vs. Van Alshjne, 
 15 JBarb. 568.) Thus, the finder of goods has a sufficient pos- 
 session to maintain an action against every person but the true 
 owner. (2 Saund. 47, d.) 
 
 The plaintiff must also prove, that the injury was committed 
 by the defendant with force. And the defendant will be charge- 
 able, if it appear that the act was done by his direction or com- 
 mand; or by his servant, in the course of his master's business, 
 or while executing his orders with ordinary care; or by his 
 domestic or reclaimed animals. If the action is for injuries 
 done by a domestic animal, it is also necessary for the plaintiff 
 to show that the owner had notice that it was accustomed 
 to do mischief. (13 Johns. 339; 4 Den. 127; Van Leuven vs. 
 LyJce, 1 Corns. 515.) But the rule is otherwise where the mis- 
 chief is done by such an animal while committing a trespass 
 upon the close of another, (id.) 
 
 It is not necessary for the plaintiff to show that the act was 
 done with any unlawful or wrongful intent. It is enough if it 
 was done without justifiable cause or motive, though it may 
 have been done accidentally and by mistake. (19 Johns. 381; 
 Vandenburgh vs. Truax, 4 Den. 464.) 
 
 The allegation of the time when the trespass was committed 
 is not ordinarily material to be proved. (2 Green, on Ev. % 624.) 
 The answer of the defendant in an action of trespass usually 
 contains a general denial of the allegations in the complaint, 
 under which he may give evidence of any facts tending to dis- 
 prove either of the propositions which the plaintiff is obliged 
 to make out in orderrto maintain the action. Thus, under such 
 issue it may be proved, that the plaintiff had no property in the 
 goods in question, and that the defendant did not talce them. 
 {id. \ 625.) But every defence which admits the defendant to 
 have \)&%u prima facie a trespasser, and seeks to avoid the tres- 
 pass, must be specially set forth. (Code, § 64; 11 Johns. 132; 
 Newberry vs. Lee, 3 Ilill, 523; Simpson vs. Watrus, id. 619.) 
 
 If the defendant justifies a destruction of the plaintiff's pro- 
 perty on the ground that such destruction was necessary to the 
 preservation of his own, he must aver and prove that he could 
 not otherwise have preserved his own. (2 Oreen. on Ev. § 630.) 
 
 If the trespass is justified under civil or criminal process, that 
 
TRESPASS. 435 
 
 defence must be specially pleaded; (3 Hill, 523, 619; Ooats 
 YS., Darby, 2 Corns. 517;) and the party must prove every 
 material fact of the authority under which he justifies. If a 
 constable is sued for trespass in levying upon the ■ plaintiflF's 
 property under an execution against him, and pleads accordingly, 
 the execution must be produced, and, if regular on its face, will 
 protect the officer; (12 Johns. 257; 6 Wend. 367; Sheldon vs. 
 Van BushirTc, 2 Corns. 477;) and it is not necessary for him to 
 produce the judgment on which the execution was issued, {id. 
 475; Holmes vs. JSTuncaster, 12 Johns. 395.) But, if the officer 
 is sued by A for taking his property under an execution against 
 B, the question to be tried is whether the property belonged 
 to A or to B. If it belonged to A, the execution, with or with- 
 out the judgment, is no protection, for it does not command 
 the officer to take A's property. But if A claims title to the 
 property by virtue of a sale from B to him, which is alleged to 
 be fraudulent against B's judgment creditor, then it is necessary 
 for the officer to produce the judgment on which the execution 
 issued against B. But this for the purpose of proving, in con- 
 nection with other testimony, that the pretended sale from B to 
 A was fraudulent and void, and that the property, therefore, 
 still belongs to B, and not to A. The judgment in such case is 
 given in evidence, because it affects the title to the property in 
 question, and not because it is for any other purpose necessary 
 to protect the officer. (5 Hill, 194; 2 Coins. 447, supra.) 
 
 If the plaintifi" in a judgment is sued for trespass in taking 
 property by virtue of an execution issued on such judgment, he 
 must produce and prove the judgment. {Simpson vs. Watrus, 
 3 Hill, 619.) 
 
 If there are several defendants in an- action of trespass, the 
 plaintiff must show that they acted in concert in committing the 
 ti'espass, in order to entitle him to a verdict against them as 
 joint trespassers. {Williams vs. Sheldon, 10 Wend. 654.) 
 
 (12.) Trespass on the Case. 
 
 The distinction between an action of trespass, and one of tres- 
 pass on the case, at common law, was, that by the former redress 
 was sought for an injury accompanied by actual force, and by 
 the latter for a wrong without force, (2 Greenl. on Ev. % 224.) 
 The distinction was often very subtle and perplexing, and of 
 
436 NEW YORK JUSTICE. 
 
 course no longer exists, since the abolition by the Code of all 
 forms of action. Almost all, however, of the rules of evidence 
 applicable to those causes of action which formerly fell under 
 the head of trespass on the case, are still applicable to the same 
 causes of action when brought into a Court of Justice. 
 
 In tliis action, if there are several plaintiffs, they must prove 
 a joint cause of action, such as damage to their joint property, 
 and the like. (2 Greenl. on Ev. § 227.) If their interests are 
 several, but the damage is joint, that is sufficient to maintain a 
 joint action. (2 Sound. 115; 2 Wilson, 114.) 
 
 If the action is founded in tort, it is not necessary tb prove 
 all the defendants guilty; for, as torts are several in their 
 nature, the jury or the Justice may find some guilty and others 
 not. (^Lansing vs. Montgomery, 2 Johns. 382.) 
 
 The particular day on which the injury is alleged to ^have 
 been committed, is not material to be proved; (2 Greenl. on Ev. 
 \ 229; 16 Massachusetts Rep. 472;) nor is it necessary to prove 
 both malice and negligence on the part of the defendant in 
 doing the act complained of, even though both have been 
 averred. The action may b» maintained on proof of negligence 
 only. {Panton vs. Holland, 17 Johns. 92.) 
 
 The defendant may give in evidence, under a general denial, 
 any matters which go to defeat the plaintiff's right to recoverj 
 as a release, satisfaction, or former recovery; (3 Burrow, 1353;) 
 and he may show that the plaintiff's negligence contributed to 
 produce the injury complained of. (21 Wend. 188, 615; Bronvn 
 rs. -Maxwell, 6 Hill, 592.) The statute of limitations must, 
 however as we have seep already, be specially pleaded. {Ante, 
 p. 136.) 
 
 (13.) Trover. 
 
 This action is in substance an action to recover the value of 
 personal chattels wi'ongfully converted by another to his own 
 use. To entitle the plaintiff to recover, two points are essential 
 to be proved: 1. Property in the plaintiff, (1 Caines, 14; 12 
 Johns. 403;^ 14 id. 352; Tuthill vs. Wheeler, 6 Barb. 362,) 
 and a right of possession at the time of conversion; and, 2. A 
 conversion .of the thing by the defendant to his own use. 
 Whether the defendant originally came to the possession of the 
 thing rightfully or wrongfully, is not material. (2 Greenl. on 
 Ev. \ 636.) The plaintiff should also be prepared to prove the 
 
TROVEE. 437 
 
 value of the goods at the time and place of the conversion; 
 though this is not essential to the maintenance of the action. 
 [i Oreenl. on Ev. \ 636.) 
 
 The property in the plaintiff may be either general or special. 
 {HotchJciss vs. McVicJcar, 12 Johns. 403; 2 8aund. 47 a.) 
 Where he has a special property, he may maintain his action 
 against even the general owner-, if he wrongfully deprives him 
 of the possession; but, in such case, the plaiutiflF is entitled to 
 recover only the value of his special interest. (7 Cow. 670; 
 Spoor vs. Holland, 8 Wend. 445; 2 Taun. 268.) Special prop- 
 erty, in a strict sense, consists in the lawful custody of goods, 
 with a right to detain them against the general owner. (2 
 Oreenl. on Ev. § 637.) As against a stranger, a carrier or bailee 
 has a sufficient property to enable him to maintain this action. 
 (12 Johns. 453; Faulkner vs. Brown, 13 Wend. 63.) 
 
 Where the plaintiff claims title to goods under a> sale, and a 
 question is made as to the time when the property passed, it is 
 material for him to prove that everything the seller had to do 
 was already done, and4;hat nothing remained to be doile on his 
 own part, but to take away the specific goods. {Bai-newell & 
 Gresswell, 360.) If he claims title to the property as a pur- 
 chaser under an execution, he must prove the judgment as well 
 as the execution; {Yates vs. 8t. John, 12 Wend. 74;) and the 
 articles must have been sold specifically and separately. {Sheldon 
 vs. Bonier, 14 Johns. 352.) 
 
 The plaintiff must also show a right in himself to the present 
 possession of the goods. If he has only a special property, 
 there must ordinarily be evidence of actual possession ; (4 East, 
 211; Hotchkiss vs. McVickar, 12 Johns. 403;) but the general 
 property has possession annexed to it by construction of law. 
 (2 Saund. 47 a.) If the general owner has parted with the 
 right of possession, as, for instance, to a lessee, he cannot main- 
 tain an action of trover for a conversion by a third person during 
 the existence of the lease. (7 Term Rep. 9.) But if the general 
 owner delivers goods to his agent to keep for him, and they are 
 taken out of the possession of the agent by third persons, the 
 general owner, having the general property, which draws after 
 it the possession, may maintain trespass ot trover for the goods. 
 {Thorp vs. Burling, 11 Johns. 285.) So, in an action brought 
 for conversion by plaintiff, a mechanic, seeking to avail himself 
 
438 . NEW YORK JUSTICE. 
 
 of the benefit of the exemption act, against defendant for levy- 
 ing on and selling under execution one of the plaintiff's neces- 
 sary implements of trade, the burden lies on him of proving 
 that the value of all his tools, including the one in question, 
 does not exceed the amount specified in the exemption act. The 
 same principle applies if plaintiff claims exemption as head of a 
 family for which he provides. ("M7Z (& Denio, Swpp. 384.) 
 
 The plaintiff must in the next place show, that there has been 
 a conversion of the goods by the defendant to his own use. 
 {Storm vs. Livingston, 6 Johns. 44.) To constitute a conversion, 
 it is not necessary to show a manual taking of the thing in 
 question, nor that the defendant has applied it to his own use; 
 but the assuming a right to dispose of it, or the exercising 
 dominion over it, to the exclusion of the plaintiff's right, is a 
 conversion. (7 id. 254; 10 id. 172; Reynolds vs. 8hul&r, 5 
 Cow. 323.) Every linlawful taking is, of itself, a conver- 
 sion; {Farrington vs. Payne, 15 Johns. 431;) and so is the 
 abuse of a possession originally lawful, or the breach of a trust 
 under which the property was placed in the defendant's hands. 
 It is- not necessary, to support the action, that the defendant's 
 possession should originally have been illegal. (Murray vs. 
 Burling, 10 id. 172.) It is sufficient for the plaintiff to show 
 that the defendant has taken the property into his own hands, 
 or disposed of it to others, or exercised some dominion over it, 
 without the right to do so. [Cohh vs. Dows, 9 Barb. 230.) 
 
 Where the circumstances do not, of themselves, amount to an 
 actual conversion, it is incumbent on the plaintiff to give evi- 
 dence of a demand and refusal at some time prior to the com- 
 mencement of the action, (6 Johns. 44,) the time not being 
 material; and also to show that the defendant had it in his 
 power to give up the goods. If he has put it out of his power 
 to deliver the goods, a demand before suit is unnecessary. 
 I (1 Cow. 75; Everitt vs. Coffin, 6 Wend. 603.) >< If there has 
 / been no actual conversion, no demand and refusal can lay the 
 foundation for an action, unless the party has the property in his 
 possession, so that he can comply with the demand. (6 Barb. 
 436; Hall vs. "Robinson, 2 Corns. 293.) But a demand and 
 refusal are only evidence of a prior com'-ersion, not in itself 
 conclusive, but liable to be explained and rebutted by evidence 
 to the contrai-y, (2 Sound. 47 e.) or by showing that a oompli- 
 
DAMAGi^S. 439 
 
 ance with the demand was impossible. {Hill vs. Oovell, 1 Oom»^ 
 522.) If the original taking was tortious, the plaintiff need 
 not give evjdence of a demand and refusal. (6 Johns. 44, 
 swpra.) 
 
 c The defendant, in reply to the evidence of the plaintiff, may- 
 show that the title to the goods was -in himself, either abso- 
 lutely, as general o^s^ier or joint owner with the plaintiff, or 
 specially, as bailee or by way of lien; (2 Greenl. on Ev. \ 648; 
 Everett vs. Coffin, 6 Wend. 603;) or he may show a paramount 
 title in a stranger, (11 id. 54; 8chermerhorn vs. Van Valken- 
 hurgh, 11 Johns. 529,) with which he is connected by some title 
 or interest in himself, {id.) Any lien, however, which a de- 
 fendant may claim upon the property, for services rendered, 
 will be considered as waived, if, at the time a demand is made, 
 he places his refusal to deliver up the property upon some 
 other ground. (2 Johns. Cases, 411; Everett vs. Coffin, 6 Wend. 
 603.) The plaintiff may avoid evidence of the defendant's lien, 
 by showing that at the time the demand was made, he offered 
 to discharge the defendant's claim, and made a formal tender 
 
 of satisfaction, {id.) 
 
 CHAPTER XIV. 
 
 OF DAMAGES. 
 
 The general rule of law is, that whoever does an injury to 
 another, is liable in damages to the extent of that injury; and 
 it matters not whether the injury is to the property, or the per- 
 son, or the rights, or the reputation of another. This compen- 
 sation is generally awarded according to certain rules of law, 
 which neither the Court nor the jury are at liberty to disre- 
 gard, but which will equally control the conduct of both. 
 {Sedgwick on Damages, 30.) 
 
 In cases growing out of the non-performance of contracts, or 
 the infringement of rights, or the non-performante of duties 
 created or imposed by law, in which there is no element of 
 
440 
 
 NEW YORK JUSTICE. 
 
 fraud, willful negligence or malice, the compensation recovered 
 in damages consists generally of the direct pecuniary loss suf- 
 fered; and, in mere money demands, this includes interest for 
 the detention of the amount claimed. 
 
 We propose to consider first, some of the various grades of 
 damages, and then to speak of the rules of damages applicable 
 to particular actions. 
 
 1. Liquidated Damages. 
 
 Parties who enter into an agreement, may, for the purpose 
 of avoiding any question as to the amount of damages which 
 the party who violates the contract shall pay, agree upon a 
 definite sum, to be paid as liquidated or stipulated damages. 
 Such sum will, prima facie, be treated as damages, and not as 
 a penalty. (12 Barb. 366; Homier vs. True, 19 Barb. 106.) 
 
 The distinction between what is merely & penalty, and what 
 is liquidated dainages, has given rise to many and somewhat 
 conflicting decisions. A penalty in a bond is only a security 
 for the sum actually due; and in a contract, for the damages 
 actually sustained. Whether a sum agreed upon by the parties 
 to a contract as the measure of damages for its breach, shall be 
 considered as liquidated damages, or only as a penalty, depends 
 upon the intent of the parties, and the peculiar circumstances 
 of the subject matter of the contract. If the damages must 
 necessarily be wholly uncertain, and incapable of estimation, 
 the party failing to perform will be held to pay the stipulated 
 sum as liquidated damages. Accordingly, where the plaintiff 
 gave $3,000 for the patronage and good-wdll of a newspaper 
 establishment, and $500 for the type and printing apparatus, 
 and the defendant covenanted that Ke w6uld not publish, nor 
 aid or assist in publishing, a rival paper, and fixed the measure 
 of damages at $3,000, and did subsequently aid and assist in 
 the publication of such paper, it was held that the plaintiff was 
 entitled to recover the whole sum of $3,000, as liquidated dam- 
 ages. (17 Wend. 447; Bagley vs. JPeddie, 16 yew York JR. 
 469.) 
 
 It seems to be settled, that, if the word penalty or penal is 
 used, the agreement cannot be construed as one for liquidated 
 damages; but where both penalty and liquidated damages are 
 used, the construction must be governed by the intent of the 
 
VINMCTIVE DAMAGES. 441 
 
 parties. In most of the cases where the question of liquidated 
 damages has arisen, there was an absolute agreement to do or 
 not to do a particular act, followed by a stipulation in relation 
 to. the amount of damages in cfise of a breach. Where, in con- 
 sideration of the conveyance to him of certain city lots for the 
 price of $21,000 only^ the defendant covenanted that he would, 
 within a certain time, erect two brick houses thereon, or, in de- 
 fault thereof, pay to the vendor $4,000 on demand, the $4,000 
 were held to be liquidated damages; and mainly on the ground, 
 that the defendant had his election not to build, but instead 
 thereof to pay the $4,000 as damages for the breach of his 
 agreement. {Pear son' ys. Williams, 26 Wend. 630.) 
 
 Where a physician, on the sale of his business, gave his bond 
 conditioned that he would not practice within certain limits, 
 and that, in case he did, he would pay a certain sum per month, 
 that was held to be liquidated damages. (4 id. 468; Mott vs. 
 Mott, 11 Barb. 127.) So, also, whei-e a physician sold out to 
 his partner, and bound himself in the sum of $500, liquidated 
 damages, not to practice medicine in a certain village for five 
 years. (11 Barb. 127, supra.) An agreement for stipulated 
 damages necessarily implies that they are to be received as a 
 full satisfaction and compensation for a breach of the agree- 
 ment. (Shiell vs. McNitt, 9 Paige, 101.) A sum specifically 
 named in an agreement as liquidated damages, must neverthe- 
 less be construed as a penalty, where it appears upon the face 
 of the instrument that such sum will necessarily be an inade- 
 quate compensation for the breach of some of the provisions, 
 and inore than enough for the breach of others. {Lampinan vs. 
 Cochran, 16 New York R. 275; 5 Sandf. 640.) 
 
 2. Vindictive Damages. 
 
 Vindictive damages, or smart money, as it is frequently 
 termed, may be given in actions for wrongs, and the jury may 
 take into consideration the evil example of the defendant's con- 
 duct, and increase the damages. (3 Johns. 5G; 8edg, on Dam. 
 chap. 17, and cases cited.) 
 
 In an action for beating a horse to death, the jury may give 
 damages beyond the value of the horse, there being proof of 
 great and wanton cruelty; [Wort vs. Jenkins, 14 Johns. 352;) 
 and a jury may give smart money, though the defendant has 
 
442 NEW YORK JUSTICE. 
 
 been convicted a,iid fined for the same transaction. (Coo^ vs. 
 Ellis, 6 Hill, 466.) 
 
 In an action by a parent for an injury to his child, by which 
 he lost his services, the jury can give damages only for the loss 
 of service; (24 Wend. 429; Pack ys. Mayor of N. y. 3 Oovw. 
 489;) and this though the action be for an aggravated assault 
 upon a daughter. (Whitney vs. Hitchcock, 4 Denio, 461.) 
 
 A lunatic, though responsible for an injury inflicted by him, 
 is not liable in vindictive damages. {lirom vs. Schoonmaker, 3 
 Barb. 647.) 
 
 3. General and Consequential Damages. 
 
 General damages are such as necessarily result from the in- 
 jury complained of; and they may be recovered without any 
 averment of special damages in the complaint. Such damages, 
 however, as are the natural but not the necessary result of the 
 injury are special, and must be stated in the complaint. (12 
 Wend. 64; 13 id. 390; Vanderlice vs. Newton, 4 Corns. 130.) 
 So, also, where the damages sustained are not implied by law 
 from the breach of the contract, the particular damage must, in 
 general, be stated, or it cannot be recovered. (Bogert vs. Brok- 
 halter, 2 Barb. 525.) 
 
 In all cases where one person has received personal injury 
 and mutilation by tne careless or negligent act of another, the 
 bodily pain and suffering are part and parcel of the actual in- 
 jury, for which the injured party is as much entitled to compen- 
 sation in damages, as he is for the loss of time or the outlay of 
 money. It is not necessary for the injured person to wait until 
 all the consequences of the injury have become, fully developed. 
 He is entitled to recover for both past and future pain of body, 
 as well as for past and future deprivation of health, or of any of 
 his bodily powers. But all these subjects for damages must be 
 the legal, direct and necessary results of the injury; and those 
 which at the time of the trial are prospective, must not be con- 
 jectural. {Curtis vs. Roch. & 8. R. R. Co., 20 Barb. 282; S. 
 C. 18 JSf. Y. 534.) It is decided that a dealer in drugs and medi- 
 cines who carelesslv labels a deadly jjoison as a harmless medi- 
 cine, and sends it so labelled into the market, is liable to all 
 persons who, without fault on their part, are injured by using 
 it as such medicine, in consequence of the false label. And this 
 
GENEKAL AND CONSEQUENTIAL DAMAGES. 443 
 
 liability arises, not out of any contract or direct privity between 
 the dealer and the person injured, but out of the duty which 
 the law imposes upon him to avoid acts in their nature danger- 
 ous to the lives of others. (^Thomas vs. Winchester, 2 8 eld. 
 397.) Damages for bodily pain and suffering, arising from 
 physical injury, and connected with actual loss of time and 
 money, are not exemplary or punitory in their character in any 
 strict or proper sense of those terms. {Morse vs. Auburn <& 8. 
 R. R. Co. 10 Barb. 621.) 
 
 Where, in an action for a wrong, excessive damages have 
 been given, the Court may, instead of setting aside the verdict, 
 give the plaintiff the option of reducing his verdict to a reason- 
 able sum. (Ttiblin vs. Murphy, & Sandf. 19; id. 734.) 
 
 Where exemplary or vindictive damages are not recoverable, 
 the principle upon which damages are to be given for wrong- 
 fully taking or detaining personal property, whether by force, by 
 fraud, or by process of law, is, that the owner to whom compen- 
 sation is due, must be fully indemnified, and that the wrong- 
 doer must not be permitted to derive any benefit or advantage 
 whatever from his wrongful act. {8uydam vs. Jenkins, 3 
 8andf. 614.) 
 
 Where, in a contract by one party to pay for certain 
 machinerj^ to be made by the other party, the former refuses to 
 pay, whereby the latter is disabled from performing, the dama- 
 ges recoverable by the latter are only his actual expenditures 
 and losses. («S'ee 8hannon vs. OomstocJc, 21 Wend. 457, and 
 Bement vs. 8niith, 15 Wend. 493.) In case of failure to com- 
 plete machinery of a mill by the time set in the contract, the 
 injured party may recover the fair ordinary earnings of the mill 
 during the period of delay, deducting the expenses of running 
 the mill meantime. {Davis vs. Talcott, 14 Barb. 611.) Con- 
 tingent profits, which might have been realized from the fulfil- 
 ment of a contract, are not recoverable as damages for its 
 breach. (17 Wend. 71; 21 id. 322; 3 Barb. 424; Giles vs. 
 G'Toole, 4 id. 261.) It is only uncertain and contingent profits, 
 however, which the law excludes; not such^as being the imme- 
 diate and • necessary result of the breach of contract may be 
 fairly, supposed to have entered into the contemplation of the 
 parties when they made it, and are capable of being definitely 
 
444 NEW YORK JUSTICE. 
 
 ascertained by reference to established market prices. (Oriffin 
 vs. Colver, 16 New York R. 489.) 
 
 In actions for wrongs, the value of property wrongfully takenj 
 is, in estimating damages, not to be determined always by its 
 market price. In some cases, as of family pictures, plate, and 
 the like, its value to the owner, by reason of personal or family 
 considerations, ought to be considered by the jury, exefcising 
 both a sound discretion and a reasonable sympathy with the 
 feelings of the owner. (3 Sandf. 614, supra.) 
 
 In an action for the recovery of damages for injuries to the 
 person, the jury must be satisfied from the evidence, not only 
 that the defendant was guilty of negligence, but that the plain^ 
 tilf was free from fault. {Collins vs. A. <& 8. R. R. Co. 12 
 Barb. 492.) 
 
 4. Damages for Breach of Contract Generally. 
 
 Where a contract to perform work and labor is abandoned 
 by the parties, and entii-ely departed from in the doing of the 
 work, the party doing it is entitled to recover according to the 
 actual value of the work; as,, where a carpenter agrees to build 
 a house according to a certain plan, and for a specific sum, and 
 the plan is abandoned, so that it is impossible to trace the con- 
 tract in the work done. {Hollinsead vs. Mactier, 13 Wend. 
 276.) But where there is, by consent, a deviation from the 
 plan, on a contract to perform the work at estimated prices, the 
 estimates are the rule of payment, so far as the special contract 
 can be traced, and, for the extra labor, the party is entitled to what 
 it is worth. {Dubois vs. The Del. & Hvd. Canal Co. 4 id. 285.) 
 
 Where one employed another to raft logs to market at a 
 specified price, and put an end to the contract before any work 
 was done, the measure of damages, in an action by the latter, 
 was held to be the f)rofit he could have made by the fulfilment 
 of the contract, and the immediate loss he sustained in making 
 preparation. {Durkee vs. Mott, 8 Barb. 423.) * 
 
 ' Where, by the terms of a contract for work and labor, the full 
 price is not to be paid until the work is completed, and a com- 
 plete performance becomes impossible by the act of the law, a 
 contractor may recover for the woi'k actually done, at the full 
 prices agreed on; but, where the completion of a job is arrested 
 by the act or omission of the party for whom the work is done, 
 
' DAMAGES FOR BREACH OF CONTRACT GENERALLY. 445 
 
 the contractor has an election to treat the contract as rescinded, 
 and recover the value of his labor, or he may sue upon the 
 agreement, and recover for the work completed, at the stipulated 
 price, and for the loss in profits, or otherwise, sustained by the 
 interruption. (Jones vs. Judd, 4 Ooms. 411.) 
 
 If parties deviate from the terms of a special contract to per- 
 form work and labor, the contract price will, generally, in an 
 action for the work done, be, so far as applicable, the rule of 
 damages; but where the contract is terminated by the employer, 
 against the will of the contractor, the latter is not confined to 
 the contract price of the work done, but may bring his action 
 for a breach of the agreement, and recover as damages the pro- 
 fits he would have made, if allowed to complete the work; or 
 he may bring his action for work and labor generally, and 
 recover what the work done is actually worth. But if the con- 
 tractor elects to consider the contract as rescinded, and brings 
 his action for work and labor generally, he cannot recover for 
 profits upon the unexecuted part of the Ivork; and, in such case, 
 the rule of damages is the actual value of what has been done 
 under the contract. {Clark vs. Mayor of JV. Y. 4= Corns. 338.) 
 
 If one who hires another, declines his services, it is the duty 
 of the latter to seek employment, and he can recover only his 
 actual loss. Thus, if A engages to furnish B's canal-boat with 
 cargo, and fails to do so, B must take what is ofiered by others, 
 and can reeover only for the deficiency in quantity and price. 
 {Shannon vs. CoTnstoch, 21 Wend. 457.) 
 
 Where personal services are contracted for, and the party 
 hired is dismissed without cause, he is jprima facie entitled to 
 the contract compensation for the whole term, upon proof of 
 willingness and ofier to perform; but it seems that, if he has 
 worked for others during the time, his earnings should be 
 deducted, and that, if he is bfiered similar employment in the 
 same region, during the contract time, he is bound to accept it. 
 {Costiyan vs. MohaivJc & H. R. B. Co. 2 Den. 609.) Where a 
 party under contract to perfoi;m labor has refused to perform, 
 the measure of damages is the difference between the wages 
 agreed to be paid to him, and the price the plaintiff was obliged 
 to pay for labor to supply his place. {Peters vs. Whitney, 23 
 Ba^'b. 24.) 
 
 Where a party, who is entitled to the performance of a con- 
 
446 NEW YORK JUSTICE. 
 
 tract for the delivery of certain articles, can himself, on the 
 failure of the other party, procure them within a reasonable time, 
 he is entitled only to a compensation for the additional expense 
 and price, and for the injury resulting from tlie necessary delay 
 in procuring them; for, if he can protect himself from a loss, by 
 reasonable exertions or common prudence, and fails to do so, he 
 will not be permitted to throw the loss, which has arisen from 
 such neglect, upon the other contractinir party. (Taylor vs. 
 Read, 4 Paige, 561.) 
 
 Where property is sold by one person for another, and there 
 is no proof of the price obtained, the measure of damages is the 
 highest market price, for which according to the evidence, the 
 property could have been sold. (Clark vs. Miller, 4 Wend. 628.) 
 
 If one who has contracted for board, leaves without just cause, 
 the other party will not be entitled to recover the stipulated 
 price as damages, but only the actual damages sustained by the 
 breach of the contract. (Wilson vs. Martin, 1 Den. 602; 
 8p&ncer vs. Halstead, id. 606; 8. C< id. 610.) 
 
 A recent statute of this State contains a provision in the fol- 
 lowing terms: 
 
 That any endorser or other surety, and any assignee, executor, 
 administrator, or other trustee, shall be entitled to, and allowed, 
 to recover from his principal or cestui que trust, all necessary and 
 reasonable costs and expenses paid or incurred by him in good 
 faith as surety or trustee in the prosecution or defence in good 
 faith of any action by or against any assignee, executor, admin- 
 istrator, or other trustee as such. (Laivs of 1858, chap. 314, § 3.) 
 
 5. Damages on a Breach of Wab,ranty. 
 
 The measure of damages on a breach of the jvarranty of the 
 title to a chattel, is as a general rule, the price paid, with 
 interest, together with the costs adjudged against the vendee in 
 a suit against him by the true owner, but not the vendee's 
 expenses in defending that suit. (Armstrong vs. Fercy, 5 
 Wend. 505.) 
 
 In an action for a breach of the warranty of the quality of im 
 article sold, where there is no fraud, the measure of damages 
 is the diflference between the value of the article sold, as it was, 
 and what its value would have been at the time of the sale, if it 
 had been such as it was warranted to be; (Voorhees vs. Earl, 
 
DAMAGES FOR NOT DELIVERING GOODS SOLD. 447 
 
 2 Hill, 288;) or, on a warranty of soundness, the difference 
 between the value of the thing, as it was in fact, and what it 
 would have been worth if it had been sound. {Gary vs. Gru- 
 man, 4 id. 625.) The price agreed upon is, however, strong 
 evidence of the actual value, and should never be departed 
 from, unless upon clear proof, (ed.) 
 
 In an action for a breach of warranty of soundess on the 
 sale of a horse, the proper measure of damages is the difference 
 between the value of the horse at the time of the sale, consider- 
 fng ' him sound, and his value with the defect complained of. 
 And, where the Court at the trial charged the jury, that if 
 there was a breach of the warranty, the jilaintiff was entitled 
 to recover the difference between the price he paid for the 
 horse, and the amount he realized on a resale thereof, it was 
 held erroneous. (Gomstock vs. Hutchins, 10 Barb. 211.) 
 
 6. Damages for not Delivering Goods Sold. 
 
 Where a contract is made for the sale and delivery of goods, 
 and the price or consideration is paid at the time of making 
 the contract, or at any time before that fixed for the delivery, 
 and the vendor fails to deliver, the vendee is entitled to recover 
 as damages, the highest price of the goods at any time between 
 the day when they should have been delivered and the day of 
 trial. (3 Gow. 82; GlarJc vs. Pinney, 7 id. 681.) This rule, 
 however, is applicable only when the vendee brings his action 
 immediately after the breach. If he delays, he is entitled only 
 to the value of the goods at the time of the commencement 
 of the suit, {id.) 
 
 But where, on a sale of goods, the contract price is not to be 
 paid at the time of maldng the contract, but is to be paid upon 
 the delivery of the goods, the measure of damages f6r the non- 
 delivery of the goods, is their value at the day appointed for 
 the delivery, less the contract price; (7 id. 681; 9 Wend. 129; 
 24 id'. 322; Beals vs. Terry, 2 Sand. 127;) and this, without 
 reference to the price at which the vendee may have agreed to 
 sell the goods to others in the meantime. {Davis vs. Shields, 
 24 Wend. 322.) 
 
 The measure of damages for the non-performance of a con- 
 tract to deliver an article of merchandise at a fixed place and 
 on a specified day, is the difference with interest between the 
 
448 NEW YOEIC JUSTICE. 
 
 market value of an article contracted for on the day when it 
 should have been delivered and the price which, by agreement, 
 was to have been paid for it. (ijRna vs. Fiedler, 2 Kern. 41, 
 aff'g 1 E. D. Smith, 463.) The " market value" which this 
 rule fixes as the test, requires the investigation of the actual 
 condition of the market, and does not warrant the considera- 
 tion of the conjectural consequences of a state of things which 
 did not exist, e. g., a probable fall in the price of the article 
 in question, which would have resulted had the defendant deli- 
 vered the quantity specified in the contract to the plaintiff, and 
 had the plaintiif ofiered it for sale in the market. The value 
 in the market on the day forms the readiest and most direct 
 method of ascertaining the measure of tliis indemnity in both 
 cases; and, accordingly, where a market value for the article 
 exists, the law has adopted that standard. (2 Kern. 41; 1 8eM. 
 537; Billings vs. Vanderbeck, 23 Barb. 546; Hill & Denio, 
 Supp. 9.) Evidence of the value of the goods at neighbbriiig 
 places, or at distant places, in connection with proof of the 
 expense of transportation to them, may be received if there is 
 no ascertainable value at the place of delivery; but only in 
 such case. (22 Barb. Ibi; SWend. iSb; Diefenddrfys. Gage, 
 7 Barb. 18.) Evidence of the market value at other places is 
 inadmissible, where a market value at the place of delivery is 
 clearly proved; but evidence of value at a market three miles 
 from the place of delivery has been held to be good. (8 Wend. 
 435; 7 Barb. 18, supra.) 
 
 7. Damages against Common Carriers and Factors. 
 The measure of damages for the non-delivery of goods pur- 
 suant to a contract of transportation, is the value of the goods 
 at the place of destination at the time Avhen they should have 
 been delivered. (8 Johns. 213; 14 id. 270; Amory vs. Mo- 
 Gregon, 15 id. 24.) This is the measure of damages against 
 common carriers. {Smith vs. Griffith, 3 Hill, 333.) Interest 
 is not recoverable as a matter of law. It is, however, m the 
 discretion of the jury to give or withhold it, according to cir- 
 cumstances; but generally, it ought not to be allowed, unless 
 there has been fraud, or gross misconduct. (15 Johns. 24; 
 Richmond vs. Branson, 5 Den. 55.) "Where the goods are only 
 delayed and are offered to the owner after the time at which, 
 
DAMAGES AGAINST COMMON CARRIERS AND FACTORS. 449 
 
 by the contract, the carrier was bound to deliver, the owner is 
 not entitled to refuse them and sue for their full value; he can 
 only recover an indemnitytfor his actual loss; [Scovill vs. Grif- 
 fitfh, 2 Keiii. 509;) which includes, however, a loss by fall in 
 the market between the time when the property should have 
 been delivered by the carrier, and the time when it actually 
 was. {Kent vs. Hudson Riv. R. R. Oo. 22 Barb. 278; but see 
 19 id. 36.) 
 
 "Where goods are consigned to a factor for sale, with specific 
 ingtructions as to the price, he has no right to sell below the 
 price named, to cover his advances, without calling on his prin- 
 cipal for repayment. But, where he sells- below the price 
 named in the instructions, the measure of damages, in an action 
 brought by the principal, on account of the wrongful sale, is 
 only the amount of injury actually sustained. It is, therefore, 
 competent for the factor, in such a case, to show, in reduction 
 of the damages, that the goods, at. the time of the, sale, and 
 down to the time of the trial, were worth no more than the 
 price at which they were sold. If the factor sells below his 
 instructions, although at the then market value, he takes the 
 peril of a rise in the value of the goods at any time before the 
 action is brought, and perhaps down to the time- of trial. 
 Where the consignment is of articles which have no market 
 value, such as paintings, statues, or vases, the principal may 
 insist upon the prices named in the instructions, without regard 
 to the market. (Blot vs. Boiceau. 3 Corns. 78.) And where a 
 principal consigns property to his factor with instructions to 
 sell it upon its arrival, the latter is bound to do so, and to sell 
 for the price it will then command; and if he does not, he will 
 become liable for the damage his pfrincipal may sustain in case 
 of a fall in the market. {Evans vs. Root, 3 8eld. 186.) 
 
 29 
 
450 
 
 NEW YOKK JUSTICE. 
 
 CHAPTER XV, 
 
 OF JUDGMENTS, DOCKETS, AM) TRANSCRIPTS. 
 
 1. Judgments Generally. 
 
 Judgments are of four sorts: 
 
 1. Where the facts are confessed by the parties, and the law 
 determined by the Court; as in case of judgment upon de- 
 murrer; 
 
 2. Where the law is admitted by the parties, and the facts 
 are disputed; as in case of judgment upon a yerdict; 
 
 3. Where both the facts and the law arising thereon are ad- 
 mitted by the defendant; which is the. case of judgments by 
 confession or default; 
 
 4. Where the plaintiff is convinced that facts, or law, or both, 
 are insufficient to support his action, and therefore abandons or 
 withdraws his prosecution; which is the case in judgments upon 
 nonsuits. 
 
 The judgment, though pronounced or awarded by the judges, 
 is not • their determination or sentence, but the detemnnation 
 and sentence of the law. It is the conclusion that natm-ally 
 follows from the premises of law and fact. It is the remedy 
 prescribed by law for the redress of injuries, and the suit or 
 action is the vehicle or means of administerinof it. 
 
 Judgments are either interlocutory or final. Interlocutory 
 judgments are such as are given in the middle of a cause upon 
 some plea, proceeding, or default, which is only intermediate, 
 and does not finally determine or complete the suit. Final 
 judgments are such as at once put an end to the action, by de- 
 claring that the plaintiff has either entitled himself, or has not, 
 to recover the remedy he sues for. (Jacob's Law Dictionary, 
 Judgment.) 
 
 The Code, § 245, defines a judgment to be the final determi- 
 nation of the rights of the parties in the action. 
 
judgment by confession. 451 
 
 2. Judgment by Confession. 
 
 A Justice of the Peace may enter a judgment, by confession 
 of the defendant, in any case where the debt or damages con- 
 fessed do not exceed five hundred dollars, with such stay of 
 execution as may be agreed on by the parties interested in such 
 judgment. {Code, \ 53, suM. 8; 2 7?. /S. 245, § 113.) 
 
 No confession can be taken, or judgment rendered thereon, 
 unless the following requisites be complied with: 
 
 1. The defendant must personally appear before the Justice; 
 
 2. The confession must be in writing, signed by the defendant, 
 and filed with the Justice; 
 
 3. If the judgment be confessed for a sum exceeding fifty 
 dollars, the confession must be accompanied by the affidavit of 
 the defendant and plaintifi", stating that such defendant is 
 honestly and justly indebted to the plaintiff in the sum named 
 in such affidavit, over and above all just demands which he has 
 against him, and that such confession is not made or taken with 
 a view to defraud any creditor, (id. \ 114.) 
 
 Every judgment confessed without a compliance with the 
 above provisions, is void as against all persons, except a pur- 
 chaser in good faith of any goods or chattels, lands or tenements, 
 under such judgment, and except the defendant making such 
 confession, {id. 246, \ 115.) 
 
 A judgment cannot legally be entered on confessiom, unless 
 the defendant is brought in by summons, or voluntarily appears 
 in Court and confesses judgment; and verbal authority given to 
 the Justice at a casual meeting in the street is not sufficient to 
 enter judgment. {Tenny vs. Filer, 8 Wend. 569.) A Justice 
 cannot enter judgment against a party on his written request, 
 without process, or further proof, and where the party does not 
 appear in Court in person, even where the Justice has personal 
 knowledge that such writing is in the hand-writing of the party. 
 {Martin vs. Moss, 6 Johns. 126.) Nor can a Justice in any case 
 take a judgment by confessioii from a party, unless on his ap- 
 pearance in Court, either in person or by attorney, even though 
 the party authorizes the Justice to enter judgment against him 
 by a writing under seal, and his signature is proved before the 
 Justice by the subscribing witness, {^romaghim vs. Thorp, 15 
 Johns. 476.) 
 
452 NEW TOKK JUSTICE. 
 
 Where a cause in a Justice's Court, having been adjourned, 
 became discontinued by the non-appearance of the plaintiff at 
 the adjourned day, and, more than a month afterwards, a person 
 who had been authorized by the defendant to appear for him at 
 the adjourned day and confess judgment, came before the Jus- 
 tice, and, without the Itnowledge of the defendant, confessed a 
 judgment in favor of the plaintiff, as of the day to which the 
 cause was adjourned, it was held that the judgment was void, 
 and that the defendant might avail himself of the irregularity, 
 in an action brought upon it. {Hvbbard vs. 8pencer, 15 Johns. 
 244.) 
 
 The parties to a demand exceeding the jurisdiction of the 
 Justice, may divide it into several demands, so as to bring them 
 within the jurisdiction of the Justice, and judgment may be 
 confessed for each. {Cornell vs. Cook, 7 Cow. 310.) 
 
 ^ 46. Confession of judgment, and affidavit. 
 
 In Justice's Court. 
 John Doe, ") 
 against \ Confession of judgment for $40. 
 
 Eichard Roe. J 
 In the presence of Allen Thomas, Justice of the Peace, I do 
 hereby confess judgment in favor of John Doe, for forty dollars 
 on a demand, arising on \state the nature and particulars of the 
 demand^ and consent that the said Justice enter the same against 
 me accordingly. Dated the day of , 1853. 
 
 RlCHAItD EOE. 
 
 Where the confession is for a sum exceeding fifty dollars, the 
 folowing affidavit must be made, and annexed to the confession 
 and filed with the Justice: 
 
 County, ss: We, John Doe and Richard Roe, the par- 
 ties named in the foregoing [or, annexed] confession of judg- 
 ment, being duly sworn, severally say, that the said Richard 
 Roe is justly indebted to the said John Doe, in the sum of 
 dollars, upon the demand named in said confession, over and 
 above all just demands which the said Eichard Roe has against 
 the said John Doe; and that the said confession is not made or 
 taken with a view to defraud any creditor. 
 
 Sworn to this day of , 18 , before me, 
 
 Allen Thomas, Justice of the Peace. ' 
 John Doe, 
 Richard Roe. 
 
judgment after a trial. 453 
 
 3. Judgment of Nonsuit. 
 It is provided by statute, (2 R. 8. 246, § 119,) that judgment 
 of nonsuit, with costs, shall be rendered against a plaintiff prose- 
 cuting a suit before a Justice of the Peace, in the following cases: 
 
 1. If he discontinue or withdraw his action; 
 
 2. If he fail to appear on the return of any process, within one 
 hour after the same was returnable; 
 
 ,3. If, after an adjournment, he fail to appear within one 
 hour after the time to which the adj6urnment shall have been 
 made; 
 
 4. If he become nonsuited on the trial; • 
 
 • 5. If he shall not appear, on the coming in of the jury, to 
 hear their verdict. 
 
 4. Judgment After a Trial. 
 
 Judgment for the" defendant, with costs, must be rendered 
 whenever a trial has been had, and it be found by verdict, or by 
 the decision of the Justice, tliat the plaintiff has no cause of 
 action against the defendant. (2 R. S. 246, § 120.) 
 
 If, upon the trial of the cause, or upon an ex parte hearing, in 
 those cases where it may be had on the defendant's failing to 
 appear, a sum, in debt or damages, is found in favor of the 
 plaintiff, judgment must be rendered against the defendant for 
 such debt or damages, and the costs, {id. 247, \ 121.) 
 
 If process has issued against two or more persons jointly 
 indebted, and has been personally served upon either of the 
 defendants,' the defendant who has been served witli process must 
 answer to the plaintiff; and the judgment in such case, if ren- 
 dered in favor of the plaintiff, must be against all the defendants, 
 in the same manner as if all had been served with process; but 
 execution can issue only in the manner hereinafter directed. 
 {id. § 122.) {See post, chap. 17.) 
 
 Such judgment is conclusive evidence of the liability of the 
 defendant who was personally served with process in the suit, or 
 who appeared therein; but against every other defendant, it is 
 evidence only of the extent of the plaintiff's demand, after the 
 liability of such defendant shall have been established by other i 
 eviden,ce. {id. § 123, McDoel ys. QooTc, 2 Corns. 113.) 
 
 A' judgment obtained before any Justice, in any suit com- 
 
454 NEW YORK JUSTICE. 
 
 menced by attachment, when the defendant is not personally 
 served with the attachnaent or summons, and does not appear, 
 is only presumptive evidence of indebtedness, in any suit that 
 may be brought thereon, and may l^e repelled by the defendant. 
 {Laws of 1831, chap. 300, % 39.) 
 
 When a balance is found in favor of a party, either by the 
 verdict of a jury, or upon a hearing before the Justice, exceed- 
 ing the sum for which the Justice is authorized to give judg- 
 ment, such party may remit and release the excess, and may 
 take judgment for the residue. (2 JR. 8. 247, \ 125; Olarlc ts. 
 Denure, 3 Den. 319.) 
 
 Incases where a plaintiff is nonsuited, or discontinues or 
 withdraws bisection, and where judgment is confessed, and in 
 all cases where a verdict is rendered, or the defendant is in cus- 
 tody at the time of hearing the cause, the Justice must forth- 
 with render judgment, and enter the same in his docket. In all 
 other cases, he must render judgment, and enter the same in his 
 docket, within four days after the cause has been submitted to 
 him for his final decision. (2 R. S. § 124.) 
 
 If the Justice, when the cause is tried before him, does not 
 enter judgment in his docket within four days after the cause 
 is finally submitted to him, his power is gone, and the cause is 
 discontinued; and a judgment rendered by him after the four 
 days will be reversed for' error. (19 Wend. 371; Foung vs. 
 Rummell, 5 Hill, 60; S. C. 7 id. 503.) But, where a Justice 
 decided a cause, and made a memorandum of the judgment upon 
 the papers in the cause, within four days after its final submis- 
 sion to him, it was held that the judgment was regulai', although 
 no entry of it in his docket was made until after the expiration 
 of four daysi (Walrod vs. Shuler, 2 Cow. 134.) 
 
 Though a suit be tried on its merits, and submitted to the 
 decision of a Justice, yet if he omits to render judgment, the 
 proceeding will form no bar in a second action for the same 
 cause. (7 Hill, 503, supra.) 
 
 On receiving the verdict of a jury, it is the duty of a Justice 
 forthwith to render judgment, and enter the same in his docket, 
 and, as a part of the act of rendering judgment, he must tax 
 and enter the prevailing pai'ty's costs; and, where a Justice 
 omitted-to enter the coste for eight days, the judgment was re- 
 versed. {Sibley vs. Howard, 3 Den. 72.) 
 
TRANSCRIPT OF JUDGMENi;. , 455 
 
 A Justice must enter judgment upon the verdict of a jury 
 immediately upon its being rendered, and, if he omits to do so 
 until the next day, no judgment can be given by him. {^Sib- 
 ley vs. Howard, 3 Den. 72.) But where the Justice, after the 
 jury had pronounced their verdict, rendered judgment imme- 
 diately, and noted it in his minutes of the trial, but omitted 
 to enter it upon his docket until tviro or three days after, the 
 omission was not considered cause for reversing the judgment. 
 {Hall vs. Tuttle, 6 Hill, 38.) And where a cause was tried be- 
 .fpre a Justice and a jury, on the 11th of March, and the Justice 
 jeturned that when the jury had agreed upon their verdict they 
 returned into Court and delivered the same to the Justice; 
 whereupon the Justice rendered a judgment in favor of the 
 plaintiff for the amount of the verdict, on the 12th of March, it 
 was held that it might fairly be inferred that the judgment was 
 given on receiving the verdict, and that though the trial was 
 commenced on the 11th it was to be presumed that the verdict 
 ■ was not rendered until the 12th. [Beattie vs. Qua, 15 Barb. 132.) 
 
 After the Justice bas regularly entered his judgment, he has 
 no authority to alter it, not even tc correct an error of calcular 
 tion in computing the amount of items which he intends to 
 allow. {People vs. Delaware C. P 18 Wend. 558.) 
 
 A judgment by default cannot be taken, but if the defendant 
 fails to appear and answer, the plaintiff must prove his demand, 
 as if the defendant had appeared and denied it. {Cvdner vs. 
 Dixon, 10 Johns. 106; Code, § 64, subd. 8.) 
 
 5. Transcript of Judgment. 
 A Justice of the Peace, on the demand of a party in whose 
 faA or he shall have rendered a judgment, must give a transcript 
 thereof, which may be filed and docketed in the office of the 
 clerk of the county where the judgment was rendered. The 
 time of the receipt of the transcript by the clerk must be^ndted 
 thereon, and entered in the docket; and, from, that time, the 
 judgment will be a judgment of the County Court. A certified 
 transcript of such judgment may be filed and docketed in the 
 clerk's office of any other county, and with the like effect, in 
 ey€ry respect, as in the county where the judgment was ren- 
 dered;, except that it will be a lien only from the time of filing 
 and docketing, the transcript. But no such judgment for a less 
 
456 
 
 NEW YORK JUSTICE. 
 
 sum than' twenty-five dollars, exclusive of costs, can be a lien 
 upon or enforced against real \property. {Code, § 63.) 
 
 This provision supersedes former provisions on the same sub- 
 ject. (2 B. S. 247, 248, §§ 127 to 129; Laws of 1845, chapi. 
 242, §§ 1, 2.) The substance of the former provisions was, 
 that when the transcript of the Justice's judgment was filed, 
 and the judgment entered and docketed in the county clerk's 
 office, the judgment should then "be a lien on the real estate 
 of the defendant within the county, in the same manner and 
 with the like effect as if such judgment had been rendered in 
 the Court of Common Pleas." There was no provision as to 
 the time during which the judgment thus docketed should con- 
 tinue to be a lien on the real estate of the defendant, as against 
 purchasers in good faith, and as against subsequent incum- 
 brances. And in the case of Ymmg vs. liemer, (4 Barb. 442,) 
 which arose under these former provisions, it was held that the 
 statute, (2 B. 8. 359, W 3, 4,) making judgments a lien on such 
 real estate, as against such purchasers and incumbrances, for 
 ten years from the' time of docketing them, was limited to 
 judgments rendered in Courts of Bacord; that such lien of 
 Justices' judgments so docketed was regulated by the former 
 provision of law, (2 B. 8. 396, ^ 18, subd. 2,) that "all actions: 
 upon judgments rendered in any Court not being a Court of 
 Record," should be '•' commenced within six years next after 
 the cause of such action accrued, and not after;" that it was 
 not the intention of the Legislature to put judgments rendered 
 in courts of record, and those rendered by a Justice of the 
 Peace, where a transcript was filed and the judgment .docketed 
 in the county clerk's office, upon the same footing, as to the 
 time they should remain such lien; and that such lien of a Jus- 
 tice's judgment, so docketed, ceased with the right of the plain- 
 tiff to maintain a suit upon it, that is, in six years. 
 
 The Code, in its provision, before quoted, as to filing and 
 docketing transcripts, makes no direct provision, any more than 
 the former statutes did, as to the duration of the lien of a Jus- 
 tice's judgment docketed in the county clerk's office. What, 
 then, is the duration of such lien? The Code provides, (^§ 84, 
 79, 90,) that an action upon a judgment of -ani/ Court of any 
 State within the United States may be commenced within twenty 
 years after the <pause of aCtion shall have accrued. The 
 
TBANSCEIPT OF JUDGMENT. 457 
 
 limitation of an action on a Justice's judgment is, therefore, 
 changed from six years to iiventy years. (See Ji'trst Report of 
 Oommissioners on Practice and Pleading, pages 96 to 99.) If, 
 therefore, according to the case of Young vs. Hemer, before 
 cited, the lien on real estate, of a Justice's judgment docketed 
 in the county clerk's ofcce, endures as long as the right to 
 maintain a suit upon the judgment endures, then, as that right 
 is extended by the Code to twenty years, it would seem that 
 the lien now exists for twenty years. But that would present 
 the iticongruity of a judgment rendered in a Court of Record 
 existing as a lien on real estate, as against purchasers and sub- 
 sequent incumbrances, for only ten years, and of a Justice's 
 judgment, when docketed in the county clerk's office, existing 
 as such lien for twenty years. It is to be noticed, however, 
 that the section of the Code before cited (§ 63,) says that, from 
 the time of the entry in the docket in the office of a county clerk, 
 of the transcript of a Justice's judgment, such judgment shall 
 be a judgment of the County Court. This language would seem 
 to have a different meaning and intent from the language of the 
 former law on the subject, which was merely that the judgment, 
 when docketed, should be a lien on real estate in the same man- 
 ner and with the like effect as if it had been rendered in the 
 County Court. 
 
 It is also to be remarked in this connection, that* the Code, 
 when first enacted, in 1848, contained (§ 56) a provision for the 
 filing and docketing of a transcript in the county clerk's office, 
 and then went on to say, that "from that time the judgment 
 shall have the same effect as a lien, and be enforced in the same 
 manner, as a judgment of a County Court;" thus using very 
 much the same language as the Eevised Statutes on the same 
 subject. But in the Code as re-enacted in 1849 (§ 63,) the lan- 
 guage was changed to what it is now: " shall be a judgment of 
 the County Court." If, according to the present Code, the judg- 
 ment now, after being docketed, is a judgment of the County 
 Court, it would seem that it must in all respects, and ad to the 
 time of its enduring as a lien, as well ajs to its manner of opera- 
 tion and effect as, a lien while so enduring, be a judgment of a 
 County Court, as much as if rendered in that Court. If so, 
 then its lien on real estate, as against purchasers and subsequent 
 il^umbraoces, ceases when the lien of a judgment rendered in 
 
458 NEW YORK JUSTICE. 
 
 a County Court ceases, that is, from and after ten years from. 
 the time of docketing in the county clerk's • office. (2 Hi S. 
 359, §§ 3, 4.) 
 
 Under the provisions of the Kevised Statutes relative to the 
 lien of a judgment of a Justice docketed by a county clerk, and 
 to the limitation of actions on Justices'' judgments, it has been 
 decided that filing a transcript of such judgment and docketing 
 it, rendered it a lien on real estate coextensive in time with a 
 judgment of the Common Pleas; that is, for ten years. (Wal- 
 termire vs. Westov&r, 4 Kern. 17.) ) 
 
 In the city and county of New York, a judgment for twenty- 
 five dollars or over, exclusive of costs, the transcript whereof is 
 docketed in the office of the clerk of that county, has the same 
 effect as a lien, and is enforced in the same manner as, and is 
 deemed, a judgment of the Court of Common Pleas for the city 
 and county of New York. (Code, § 68.) 
 
 A Justice's transcript must correspond with the judgment, as 
 respects the names and the number of the plaintiffs and defend- 
 ants. {Simpkins vs. JPaiffe, 1 Oode Rep. 107.) 
 
 In an action of ejectment to recover laud, the title to which 
 is claimed under an execution issued on a Justice's judgment, a 
 transcript of which has been filed in the county clerk's office, a 
 certified copy from such office of such transcript is prima fade 
 evidence O'f the rendition of such judgment. (9 Cow. 182, 233; 
 TuttleYS. Jackson, 6 Wend, 213.) And it is not necessary that 
 the transcript should contain a copy of all the proceedings in 
 the action as entered in the Justice's docket; it is sufficient for 
 it to show the rendition of the judgment by the Justice, the 
 parties, the date, and the amount, (id. 213, 666; Dickinson 
 vs. Smith, 25 Barb. 102.) 
 
 A Justice may make and certify a transcript of a judgment 
 after the expiration of his term of office. {Maynard vs. Thomp- 
 son, 8 Wend. 393.) 
 
 Whenever a judgment is rendered by a Justice of the Peace 
 on default, and in the absence of the party against whom the 
 same is rendered, it is the duty of such Justice, on the demand 
 of any person interested therein, to give to such .person a tran- 
 script of such judgment, together with a copy of the process, 
 pleadings and proofs in the cause, when such pleadings and 
 proofs are reduced to writiug, or the substance thereof when not 
 
, THE justice's DOCKET AND PAPERS. 459 
 
 reduced to writing, or such parts of such process, pleadings and 
 proofs as may be required, on his being paid therefor twenty-five 
 cents for such transcript, and six cents a folio for the residue 
 thereof. {Laws of 1841, chap. 141.) If a Justice refuses to 
 give a transcript, he may be compelled to do so by process in 
 the nature of a mandamus. {People vs. Lynde, 8 Cow. 133.) 
 Upon the filing and docketing of the judgment in the county 
 clerk's office, the power and authority of the Justice in respect 
 to such judgment cease, and he cannot issue an execution upon 
 it. (2 R. 8. 254, ^ 164; Code, % 64, subd. 13.) 
 
 ' 'i [For form of Transcript of Judgment, see McCall's Clbek's 
 Assistant, p. 342.] 
 
 6. Revival of Judgment. 
 
 By the Code, § 428, the writ of scire, facias by which a Jus- 
 tice's judgment was formerly revived, has been abolished, and 
 such judgment can now be revived only by an action to be 
 brought within the time and subject to the regulations provided 
 by law. (See ante, pp. 137, 139.) 
 
 A judgment, after it has been fully paid and satisfied, cannot 
 be kept on foot to cover new demands of the plaintifi". {Troup 
 vs. Wood, 4 Johns. Oh. R. 228.) Part payment discharges its lien 
 to that extent, and no agreement between the parties can restore 
 that lien, as against third persooB. (5 Gow. 671; De la Vergn& 
 vs. Evertson, 1 Paige, 181.) 
 
 7. The Justice's Docket and Papers. 
 By statute, (2 R. S. 268, § 243,) every Justice of the Peace 
 is required to keep a book, in which he shall enter: 
 
 1. The titles of all causes commenced before him; 
 
 2. The time when the first process was issued against the 
 defendant, and the particular process issued; 
 
 3. The time when the parties appeared before him, either 
 without process, or upon return of process; 
 
 4. Where the pleadings are made orally, a concise statement 
 of the declaration of the plaintiff, the plea of the defendant, the 
 further pleadings of the parties, if any, and the issue joined; 
 
 .5. Every adjournment, stating on whose motion, and to what 
 time and place; 
 
460 NEW YORK JTJSTICE. 
 
 ' 6. The issuing of a venire, stating at whose request, and the 
 time and place of its return; 
 
 7. The time when a trial was had, the names of the jurors 
 returned summoned who did not appear, and the fines imposed 
 on them, if any; 
 
 8. The names of the jurors who appeared, and of the jjirors 
 who were sworn; the names of the witnesses sworn at the re- 
 quest of either party, stating at whose request; the objection, 
 if any, made to the competency of a witness, and the decision 
 thereon; 
 
 9. The verdict of the jury, and when received; 
 
 10. The judgment rendered by the Justice, and the time of 
 rendering the same; i 
 
 11. The time of issuing execution, and the name of the officer 
 to whom delivered; and if issued .upon the application of any 
 party, before the time when the same should regularly issue, 
 such fact shall be noted, and the nature of the proof given; 
 
 12. The return of every execution, and when made; and 
 every renewal of an execution made by him, with the date of 
 such renewal; 
 
 13. The fact of his having given a transcript of the judgment, 
 to be filed in the clerk'si office, and the time when the same was 
 given; 
 
 14. The fact of a certiofari having been brought, on any 
 judgment rendered by him, and the time of the service of the 
 same; 
 
 15. The fact of an appeal having been made from any judg- 
 ment ren^lered by him, and the time when made. 
 
 The several items thus enumerated, must be entered under 
 the title of each cause to which they respectively relate; and, 
 in addition thereto, the Justice may enter any other proceeding 
 had before him in such cause, which he shall think it useful to 
 enter in such book. (2 R. S. 269, § 244.) 
 
 § 47. Entry in Justices Docket. 
 In Justice's Court. 
 
 Slocum Howland, \ 1853, Jan'y 10. Summons issued, return- 
 against > able the 20th in§t. at 1 o'clock P. M., at my 
 
 John James. J office. 
 
 January ] 2. Summons returned personally served, by Stephen 
 Austin, constable, on the 10th ihst. Fees 25 cts. 
 
THE justice's DOCKET AND PAPERS. 461 
 
 Jainuary 20. The plaintiff appeared in person, and the de- 
 fendant by James E. Cox, his attorney, who produced a written- 
 authority. Plaintiff complained on a promissory note executed 
 ]^j the defendant to him, and dated July 4, 1852, for $50, pay- 
 able three months from date with interest, and also for one 
 barrel of flour and ten bushels of wheat sold to the defendant, 
 and claimed damages to the amount of sixty-five dollars. 
 The defendant answered, admitting the execution of the note, 
 and denying the delivery of the flour and wheat, and claimed a 
 set-off of $25, for money lent to the plaintiff, and also for work 
 and labor performed for the plaintiff. On motion of the plain- 
 tiff the action was adjourned to Jan'y 26th inst., at 2 ?. M., at 
 my oflSce. A venire was issued at the defendant's request, re- 
 turnable at the same time and place. 
 
 Jan'y 26. The parties appeared at 2 P. M., and proceeded 
 to the trial of the cause. . The following jurors were returned 
 as summoned upon the venire by Stephen Austin, constable. 
 [Insert their names.] The following jurors who wpre returned 
 as summoned did not appear: [Insert theirnatnes.] The follow- 
 ing jurors appeared: [Insert theirnames.] The following jurors 
 were sworn to try the action: [Insert their names.] John 
 Smith and James Brown were sworn as witnesses at the request 
 of the plaintiff, and "William B. Wood and Benjamin Ashby, at 
 the request of the defendant. John Doe was offered as a wit- 
 ness on the part of the plaintiff, and objected to by the defend- 
 ant as a person for whose immediate benefit the action was 
 prosecuted; objection overruled. After hearing the testimony, 
 the jury retired under charge of Stephen Austin, a constable, 
 duly sworn for that purpose, and afterwards returned into 
 Court, and the plaintiff having answered to his name when 
 called, the jury found a verdict for the plaintiff for $25 damages, 
 which was received January 26th, 1853. Whereupon I imme- 
 diately, and on the 26th of January, 1853, rendered judgment 
 for the plaintiff for $25 damages, and $2.62^costs, in all $27.62^. 
 
 Jan'y 26. Execution issued to Stephen Austin, constable. 
 
 March 28. Execution returned satisfied. 
 
 In giving a certified copy of his docket, the Justice must cer- 
 tify the copy as follows: 
 
 ' County, ) gg_ 
 Town of 5 ' 
 
 I certify that the foregoing fs a copy of the entries m my 
 
 docket in the action in which such entries are entitled, that I 
 
 ^ have compared said copy with such original entries, and that 
 
 the same is a correct transcript therefrom and of the whole of 
 
 such original. G H, Justice of the Peace. 
 
462 
 
 NEW YOKE JUSTICE. 
 
 Whenever it becomes necessary, in an action before a Justice 
 of the Peace, to give evidence of a judgment or other proceed- 
 ing had before him, the docket of such judgment or other pro- 
 ceeding, or a transcript thereof certified by him, is good evi- 
 dence thereof, before such Justice. (2 R. 8. 269, § 245.) 
 
 A transcript from the docket of any Justice, of any judgment 
 had before him, of the proceedings in the cause previous to such 
 judgment, of the execution issued thereon, if any, and of the re- 
 turn to such execution, if any, when subscribed by Such Justice, 
 and verified as hereafter prescribed, is evidence to prove the facts 
 stated in such transcript. (2 R. 8. 269, § 246.) To entitle 
 such transcript to be read in evidence, except before the same 
 Justice, there must be attached thereto, or endorsed thereon, a 
 certificate of the clerk of the County in which such Justice re- 
 sides, under the seal of the County Court of such county, specify- 
 ing that the person subscribing such transcript was, at the date 
 of the judgment therein mentioned, a Justice of the Peace of 
 such county, {id. 270, ^ 247.) 
 
 The Justice, in giving a certified copy or transcript to be used 
 as evidence, should be particular in following the statute as to 
 the form of his certificate. The statute provides, that whenever 
 a certified copy of any affidavit, record, document, or other 
 paper, is declared by law to be evidence, such copy shall be 
 certified by the officer in whose custody the same is required by 
 law to be, to have been compared by him with the original, 
 and to be a correct transcript therefrom and of the whole of 
 such original, (id. 403, § 59.) 
 
 The docket of the Justice, or the transcript from the docket, 
 of the jDroceedings in a suit in which the Justice acquired juris- 
 diction of the cause and of the person, is conclusive evidence of 
 the facts therein stated, and cannot, in a suit upon a judgment 
 rendered by the Justice, be contradicted by parol evidence. 
 {Hard vs. 8hipnan, 6 Barb. 621.) It is only evidence, however, 
 of the facts which the Justice is required by the statute to enter 
 in his docket; and, as to those facts, it is only evidence as be- 
 tween the parties to the action before him. {Reynolds vs. 
 Brown, 15 id. 25.) And the certificate must show on its face 
 that the Justice had jurisdiction of the person of the party, as 
 well as of the subject-matter of the suit; {Benn vs. Borsf, 5 
 Wend. 292;) and if it does, the judgment cannot be impeached 
 
THE justice's DOCKET AND PAPERS. 463 
 
 collaterally. (Wesson vs. Ghawherlin, 3 Goms. 331.) In au 
 action for selling property by virtue of an execution on a Jus- 
 tice's judgment, such a certificate is evidence, as well for the 
 Justice as for the plaintiff in the execution; and the certificate 
 may be granted after the expiration of the Justice's term of 
 iGjQSice. {Maynard vs. Thompson, 8 Wend. 393.) 
 I (Parol evidence is inadmissible to contradict the certificate of 
 the Justice as to proceedings before him. (^McLean vs. Hugarin, 
 13 Johis. 184.) Nor is the evidence of the Justice admissible 
 to explain his docket, by showing that a judgment of nonsuit 
 entered by him should have been a judgment for the defendant 
 upon the merits. (Brintnall vs. Foster, 7 Wend. 103.) Nor 
 can au ambiguity as to the nature of the pleadings be explained 
 by the testimony of the Justice, if the pleadings were in writing, 
 and are not produced or accounted for. (13 Johns. 184, 
 supra.') 
 
 To prove the judgment of a Justice, in an action before him- 
 self, the mere production of the original docket containing the 
 proper entries, is enough per se; the certificate is necessary 
 only when a transcript is relied on. (8mtth vs. Frost, 5 Hill, 
 431.) 
 
 The proceedings in any cause, had before a Justice, may also 
 be proved by the oath of the Justice. In case of his death or 
 absence, they may be proved by producing the original minutes 
 of such proceedings, entered in a book kept by such Justice, 
 accompanied by proof of. his hand-writing; or they may be 
 proved by producing copies of such minutes, sworn to by a 
 competent witness as having been compared by him with the 
 original entries, with proof that such entries were in the hand- 
 writing of the Justice. (2 B. S. 270, ^ 248.) 
 
 The Justice before whom a suit was commenced may, -on the 
 production of the written pleadings put in before him in such 
 suit, prove their identity, without producing his docket or a 
 transcript of it. {Brotherton ys. Wright, 15 Wend. 237.) But, 
 .under the provision of the statute above cited, that the proceed- 
 ings in any cause, had before a Justice, may be proved by the 
 ,oath of the Justice, no more is meant than that the docket may 
 be proved by the Justice, by the production of the docket veri- 
 fied by the oath of the Justice, and not that the Justice may 
 give parol evidence of the contents of the docket. {Sooner vs. 
 
464 NEW YOKK JUSTICE. 
 
 Laine, 10 id. 525.) Nor can he, if examined in person on the trial, 
 prove a copy ot his docket, making oath that it is a true copy. 
 In such case the original docket must be produced. A sworn 
 copy can only be given in evidence whfen the Justice is dead or 
 absent from ihe trial. {Pratt vs. Peckham, 25 Barb. 195.) , 
 
 Every Justice must carefully file and preserve all affidavits, 
 and papers delivered to him to be filed ia any cause. (2 R. 8. 
 270, § 250.) 
 
 Every Justice must keep an alphabetical index of all judg- 
 ments entered in his docket-book, in the course of any judicial 
 proceedings had before him. In such index must be inserted 
 the names of the parties to each judgment, and the page of his 
 docket-book where such judgment is entered. (2 R. 8. 270, 
 ^251.) 
 
 In case any Justice removes out of the town in which he^was 
 elected, before or after his term of office expires, he must de- 
 posit with the town clerk of such town, all the books and papers 
 m the custody of such Justice, relating to any cause or matter 
 which shall have been heard by him, or relating to any proceed- 
 ing or cause which shall have been commenced before him. 
 (id. § 252.) His neglect to do, so will not, however, operate to 
 the prejudice of a. party, or prevent the docket from being re- 
 ceived in evidence. {Carshore vs. HuycJc, 6 Barb. 583.) 
 
 Whenever any Justice is removed from office by the Supreme 
 Court, {ante, p. 11,) he must, within ten days after receiving 
 notice of such removal, and upon the demand of the town clerk, 
 deliver to such, clerk all the books and papers in the custody 
 of such Justice, relating to any cause or matter which shall 
 have been heard by him, or relating to any proceeding or cause 
 which shall have been commenced before him. (2 R. 8. 270, 
 § 253..) 
 
 In every book of minutes delivered by any Justice to the 
 town clerk, pursuant to the foregoing provisions, in which he 
 has kept the docket of any judgments, he must enter a certifi- 
 cate, to be subscribed by him, stating that the judgments entered 
 in such book were duly rendered as therein stated, and that the 
 amounts appearing by such book to be due on such judgments, 
 respectively, have not been paid to his knowledge, (id. ^ 264.) 
 
 In case any Justice dies, or his office in any way becomes va- 
 cant, and any boolis or papers belonging to such Justice in his 
 
COSTS. 465 
 
 official capacity, come to the hands of any person, the town 
 clerk may demand and receive such books and papers from the 
 person having the same in his possession. (2 R. S. 271, § 255.) 
 If any books and papers are withheld by any person, he may be 
 compelled to deliver them. {id. § 256.) (See 1 B. S. 124.) 
 
 The entries contained in the book of minutes kept by any 
 Justice, and by him delivered to the clerk, are, in all cases, pre- 
 sumptive evidence of the facts stated in such entries, but may 
 be repelled by contrary proof, (id. § 257.) 
 
 If, in any action upon the judgment of a Justice, it be estab- 
 lished that the docket of a Justice has been lost or destroyed, or 
 that it cannot be produced, after reasonable efforts to obtain the 
 same, other proof of the fact of a judgment having been rendered 
 may be given, and may be repelled as other facts. (2 B. S. 
 272, ^ 267.) 
 
 CHAPTER XVI. 
 
 OE COSTS AM) FEES IN CIVIL PROCEEDINGS. 
 
 1. Costs. 
 
 Whenever a judgment is rendered by a Justice against any 
 party, it must be with the costs of the suit. But the whole 
 amount of all the items of such costs, except charges for the 
 attendance of witnesses from another county, cannot, in any case, 
 exceed five dolltrs, (id. 247, § 126,) unless such suit has been 
 adjourned more than once at the request of the party against 
 whom the judgment is rendered, in that case the costs of the 
 additional adjournment may be included. (Laws of 1857, chap. 
 777, ^ 2.) 
 
 In all actions, where a debt or damages are recovered, costs 
 
 are given, of course, to the prevailing party. (Laws of 1860^ 
 
 c/iap. 493, § 2, p. 984.) But costs incurred on the part of the 
 
 losing party, cannot be included in the judgment; ( 13 Johns. 350, 
 
 460; 14 id. 369; Dudley vs. Staples, 15 id. 195;) and if the 
 30 
 
466 NEW YORK JUSTICE. 
 
 costs of an adjournment on motion of the defendant be included 
 in the plaintiff's judgment, it will be error. {Dennison v^. 
 Collins^ 1 Cow. 111.) 
 
 The costs of a venire always abide the event of the suit, which- 
 ever party may call for the venire, and should be included in 
 the judgment. [Rickey vs. Bowne, 18 Johns. 131.) 
 
 If Judgment be rendered by any Justice, for a greater amount 
 of costs than is allowed by law, or for any item of costs or fees, 
 improperly, and the same be collected, the person paying the 
 same may, notwithstanding such judgment, recover of the party 
 who shall have received such costs or fees, the amount thereof, 
 with interest. (2 R. S. 266, § 230; Fuller vs. Wilcox, 19 
 Wend. 351.) 
 
 Where any action is brought in the name of another, by an 
 assignee of any i;ight of action, or by any person beneficially 
 interested in the recovery in such action, such assignee or per- 
 son is liable for costs in the same cases and to the same extent 
 in which a plaintifi" would be liable. (2 R. 8. 619, § 44; Laws 
 of 1847, chap. 390.). 
 
 In proceedings by attachment to enforce or protect the civil 
 rights and remedies of parties, or for the non-payment of any 
 sum of money, costs must be awarded, to be paid by the offend- 
 ing party. (2 R. S. 619, § 42.) 
 
 What are called double and treble costs are allowed by statute 
 in some cases. 
 
 In the following actions, if judgment be rendered for the 
 defendant, upon verdict, demurrer, nonsuit, non pros., discon- 
 tinuance of the plaintiff, or otherwise, in any action, certiorari, 
 writ of erroi*, or other proceeding, such defendant is entitled 
 to recover the amount of his taxed costs, and one-half thereof 
 in addition: * 
 
 1. In actions against public officers, appointed under the 
 authority of this State, or elected by the people, or against any 
 person specially appointed, according to law, to execute the 
 duties of such public officer, for or concerning any act done by 
 such officer or person by virtue of his office, or for or concern- 
 ing the omission by such officer or person, to do any act which 
 it was his official duty to perfoi-m; 
 
 2. In actions against any other person, for doing any act by 
 
COSTS. 467 
 
 the commandment of such oflScers or persons, or in their aid or 
 assistance, J;ouching the duties of such office or appointment; 
 
 3. In actions against any person, for taking any distress, 
 making any sale, or doing any other act, by authority of any 
 statute of this State. (2 R. 8. 617, \ 24.) 
 
 It is also provided, that whenever any officer of the militia, 
 or any person acting under his command, shall be prosecuted,, 
 for any act done by 'him as such, the defendant shall, in case the 
 'plaintiff shall be non-prosed, or nonsuited, or have a verdict or 
 judgment against him, recover treble costs. (1 id. 324, \ 6.) 
 
 Whenever, by the provisions of any statute, a plaintiff is enti- 
 tled to recover double or treble the damages, assessed by a 
 jury, if such damage so doubled or trebled, as the case may be, 
 entitle him to recover costs, he can recover single costs only in 
 such suit, except in cases otherwise specially provided for by 
 law. (2 R. 8. 616, § 23.) 
 
 When double or treble costs are awarded to any defendant, 
 they belong to him, and the officers who may have rendered 
 any services in the action to the defendant, and the vratnesses 
 and jurors in such action are entitled to receive and retain only 
 the single costs allowed' by law for their services respectively. 
 (id. 617, § 25.) 
 
 It has been held that treble costs mean the common costs, 
 and one-half of those, and then one half of the latter, or 
 seventy-five per cent, added to the common costs. {PatcMn 
 vs. ParJchurst, 9 Wend. 443.) While, on the other hand, it 
 has been recently held, that treble costs mean the costs actually 
 trebled. {Walker vs. Bumham, 7 How. 55.) 
 
 There have been various and conflicting opinions as to whe- 
 ther double and treble costs are abolished by the Code; but 
 the question has been settled by the Court of Appeals in Bar- 
 tie vs. Gilman, (18 N. T. 260,) which decides that the provi- 
 sion of (2 R. 8'. 617, § 24) giving double costs in certain cases 
 is not repealed by the Code. 
 
 It is provided by statute, {Laws of 1851, cJiap. 180, § 36,) 
 that when a suit or proceeding shall be commenced in any 
 Court, by any person, against any officer of the militia of this 
 State, for any act done by such officer in his official capacity, 
 or against any person acting under authority or order of any 
 such officer, or by virtue of any warrant issued by him pursuant 
 
468 NEW YORK JUSTICE. 
 
 to law, or against any collector or receiver of taxes, the defepd- ■ 
 ant may require the plaintiff in such suit to file security^for the 
 payment of the costs that may be incurred by the defendant in 
 such suit or proceeding, pursuant to title two, chapter ten, part 
 three of the Revised Statutes, and all the provisions of said 
 title are applied to any such suit or proceeding. This provi- 
 sion is supposed to be applicable to Justices' Courts. The pro- 
 visions of the Revised Statutes, so referred to, in regard to 
 giving the security, are these: The Court in which the action 
 is pending, upon due proof by affidavit of the facts entitling 
 the defendant to the security, may make an order tha,t the 
 plaintiff file such security, and that all proceedings on the part 
 of the plaintiff be stayed, until such security be filed and the 
 sureties justify,, if excepted to. (2 i?. B- 620, § 3.) Such secur- 
 ity must be given in the form of a bond, in a penalty of at least 
 two hundred and fifty dollars, with one or more sufficient sure- 
 ties, to the defendant, conditioned to pay, on demand all costs 
 that may be awarded to the defendant in such suit. {id. ^ 4.) 
 It must be filed with the Justice, and notice thereof given to 
 the defendant or his attorney. Within twenty days after the 
 service of such notice, the defendant may except to the suf- 
 ficiency of the sureties, by giving notice of such exception to 
 the plaintiff or his attorney, {td. ^ 5.) Within twenty days 
 after such notice of exception, the sureties must justify, by an 
 affidavit, that they are worth double the penalty of such bond, 
 over and above all debts; of which affidavit a copy miist be 
 served on the defendant, or his attorney. Such justification will 
 operate to discharge the order to stay proceedings, (id. ^ 6.) 
 
 2, Fees. 
 To the Justice. 
 
 The act fixing the fees of Justices of the Peace in civil and 
 criminal cases, passed April 17, 18^0, (cAop. 493, p. 983,) pro- 
 vides as follows: 
 
 \ 1. Justices of the Peace in the State shall hereafter be 
 allowed and receive the fees hereinafter stated, for the follow- 
 ing services in civil cases: 
 
 For a summons, fifteen, cents; ' 
 
 For warrant, attachment, or transcript of judgment, twenty- 
 five cents; 
 
FEES. 469 
 
 For adjournment, twenty-five cents; 
 
 For each subpoena, including all the names inserted therein, 
 twenty-five cents; {Laws of 1861, p. 17;) 
 
 For administering an oath, five cents; 
 
 For filing every paper necessary to be filed, five cents; 
 
 For swearing a jury, twenty-five cents; « 
 
 For swearing a constable, five cents; 
 
 For trial of an issue of fact, in case of appearance and answer, 
 fifty cents; 
 
 For entering judgment, twenty-five cents; 
 
 For taking affidavit, ten»cents; 
 
 For drawing any bond, twenty-five cents; 
 
 For receiving and entering verdict of jury, twenty cents; 
 
 For venire, twenty-five cents; 
 
 For drawing affidavits, applications and notices, where re- 
 quired by law, five cents per folio; 
 
 For execution, twenty-five cents; * 
 
 For renewal of same, twenty-five cents; 
 
 For making a return to an appeal, two dollars; 
 
 For a warrant for the apprehension of any person charged 
 with any violation of the laws concerning the internal police 
 of the State, or with being the father of a bastard, twenty-five 
 cents; 
 
 For indorsing any such warrant, issued from another county, 
 twenty-five cents; 
 
 For a summons for any offence relating to the internal police 
 of the State, or in case of any special proceedings to recover 
 the possession of land, or otherwise, twenty-five cents; 
 
 For drawing a record of conviction for contempts and other 
 special cases, fifty cents; 
 
 For an execution upon any such conviction, twenty-five cents; 
 
 For a warrant of commitment, for any cause, twenty-five cents; 
 
 For a precept to suramon a jury in special cases, thirty-five 
 cents; 
 
 For sweai'ing such jury, twenty-five cents; 
 
 For hearing the matter concerning which a jury is sum- 
 moned, fifty-cents; 
 
 For receiving and entering their verdict, tweifty-cents; 
 
 For a view of premises alleged to be deserted, fifty-cents; v 
 
470 NEW YORK JUSTICE. 
 
 For hearing an application for a commission to examine wit- 
 nesses, fifty-cents: 
 
 For every order for such commission, and attending, settling 
 and certifying interrogations, fifty-cents; 
 
 For taking depositions of witnesses, upon an order or com- 
 mission issued by*some Court in this or a foreign State or Ter- ' 
 ritory, five cents per folio, and for making the necessary return 
 and certificates thereto, fifty cents; 
 
 For postage for sending and returning a commission with 
 testimony, not to exceed one dollar; {Laws of 1841, chap. 
 138, § 3;) 
 
 Taking the acknowledgment of any written authority to 
 appear by attorney in a Justice's Court, 'twenty-five cents; 
 {Laws of 1831, chap. 287, % 2;) 
 
 For a transcript of the judgment, together with a copy of the 
 process, pleadings and proofs, when such pleadings and proofs 
 are reduced to writing, or the substance thereof when not re- 
 duced to writing, in any action wherein judgment was rendered 
 on default, and in the absence of the party against whom the 
 same was rendered, when required by any person interested 
 therein, twenty-five cents for such transcript, and six cents a 
 folio for the residue thereof. {Laws of 1841, chap. 141.) 
 
 An execution upon any conviction before him, nineteen 
 cents. (2 R. 8. 637, \ 29.) 
 
 To Witnesses. 
 
 From the same county, subpoenaed and attending, twelve and 
 a half cents, and from any other place than the same county, 
 twenty-five cents for every day's actual attendance; 
 
 For attending before a Commissioner on a commission issued 
 by a Justice of the Peace, the same fees as for attending in a 
 Justice's Court. {Laws of 1841, chap. 138, § 3.) 
 
 To Constables. ^ 
 
 For serving a warrant or summons, twelve and a half cents; 
 
 For a copy of every summons delivered on request, or left 
 at the dwelling of the defendant in his absence, nine cents; 
 
 For serving an attachment, fifty cents; for a copy thereof, 
 and of the inventory of the property seized, left at the. last 
 residence of the defendant, fifty cents; 
 
PEES. 471 
 
 For serving an execution, five cents for every dollar collected 
 to the amount of fifty dollars, and two and a half cents for every 
 dollar collected over fifty dollars; 
 
 For every mile, going only, more than one mile, when serving 
 a summons, warrant, attachment, or execution, six cents; to be 
 computed from the place of abode of the defendant, or where he 
 shall be found, to the place where the precept is returnable; 
 
 For notifying a plaintifi" of the service of a warrant, twelve 
 and a half cents; and for going to the plaintifi" 's residence, or 
 where such notice was served, six cents for every mile more 
 than one; 
 
 Summoning a jury, fifty cents; 
 
 For serving a subpoena, twelve and a half cents for each wit- 
 ness served; but no allowance can be made in any judgment, for 
 service upon more than four witnesses, in any caiuse. 
 . For serving a subpoena for witnesses to attend before commis- 
 sioners on a commission issued by a Justice of the Peace, the 
 same fees as are allowed by law in Justice's Courts. {Laws of 
 1841, ckaj). 138, §§ 2, 3.) 
 
 To Jurors. 
 For attending to serve as such, although not sworn, gix cents 
 each; 
 
 For attending and trying a cause, twelve and a half cents 
 each. 
 
 To Commissioners. 
 
 To one or more commissioners, for taking and returning 
 testimony, under a commission issued by a Justice of the Peace, 
 one dollar; (^Laws of 1841, chap. 138, § 3;) 
 
 For every subpoena or oath, six cents, (id.) 
 
 To any person rendering the service. 
 
 For serving a subpoena, twelve and a half cents for each wit- 
 ness served; but no allowance can be made in any judgment, 
 for service upon more than four witnesses, in any cause; (2 H. 
 S. 240, § 82;) 
 
 For serving a subpoena for witnesses to attend before commis- 
 sioners on a commission issued by a Justice of the Peace, the 
 same fees as are allowed by law in Justices' Courts. (Laws of 
 1841, chap. 138, §§ 2, 3.) 
 
473 NEW YORK JUSTICE. 
 
 In respect to the city of Albany a special tariff of fees is estab- 
 lished by statute. {^Laws of 1856, ohap. 184.) 
 
 The legal fees paid for certified copies of the depositions of 
 witnesses filed in any clerk's office, and of any documents or 
 papers recorded or filed in any public office, necessarily used on 
 the trial of an action, or on the assessment of damages, are 
 allowable as costs. (2 B. S. 651, § 14.) 
 
 No judicial officer is allowed to demand or receive any fees or 
 other compensation, for giving his advice in any matter or thing 
 pending Ubfore such officer, or which he has reason to believe 
 will be brought before him for decision, or for drafting or pre- 
 paring any papers or other' proceedings relating to any such 
 matter or thing, except in those cases wher^ fees are expressly 
 given by law to such officer, for services performed by him. 
 {Laws of 1850, ckap. 320, § 38.) 
 
 No. Justice, or other officer whatsoever, or other person to 
 whom any fees or compensation are allowed by law for any 
 service, can lawfully take or receive any other or greater fee or 
 reward for such sei-vice, than such as is allowed by law. (2 R. 
 JS. 650, § 5.) 
 
 A constable, or other ministerial officer, the fees for whose 
 official services are prescribed by law, cannot maintain an action 
 on a promise of extra compensation for extra services, although 
 services beyond what could legally be required are rendered by 
 the officer. (Hatch vs. Mann, 15 Wend. 44.) No fee or com- 
 pensation allowed by law, can be demanded or received by any 
 officer or person, for any service, unless such service was actu- 
 ally rendered by him, except in the case of charges for pro- 
 spective costs allowed by law. But this does not prevent any 
 officer from demanding any fee allowed for any service, of 
 which he is entitled by law to require the payment, previous to 
 rendering such service. (2 R. 'S. 650, ^ 6,) A violation of 
 either of the provisions of the statute just cited is a misdemeanor, 
 and the person guilty thereof is liable to the party aggrieved 
 for treble the damages sustained by him, (id. ^ 7.) 
 
issuma EXECUTIONS. 473 
 
 CHAPTER XVII. 
 
 OF EXECUTlOi^S. 
 
 After judgment has been rendered in favor of the party pre- 
 vailing in an action, the next step in the progress of a suit is the 
 issuing of an execution. 
 
 An execution, in the usual legal sense of the word, is a judi- 
 cial writ, grounded on the judgment of the Court from which it 
 issues; and is supposed to be granted by the Court, at the 
 request of the party at whose suit it is issued, to give him 
 satisfaction on the judgment which he has obtained. {Jacob's 
 Lam Dictionary, Mxeeulion.) 
 
 1. Issuing Executions. 
 
 An execution may be issued on a judgment rendered in a 
 Justice's Court, at any time within five years after the rendi- 
 tion thereof, and must be returnable sixty days from the date 
 of the same. (Code, § 64, subd. 12.) If returnable in less, it 
 is void, and will not protect an officer who act^ under it. (5 
 Wend. 276; JParr vs. Smith,9 id. 338.) It is no objection, 
 however, to an execution that it is made returnable within sixty 
 days from date, as this phraseology allows the officer full sixty 
 flays for the return. (Price vs. Ships, 16, Barb. 585.) 
 
 All the provisions of the Eevised Statutes, (2 R. S. 249, §§ 
 132 to 136,) as to the time when execution may b« issued, the 
 oath necessary to obtain it in certain cases, and the time when 
 it is returnable, have bfcv^n superseded by the Code. 
 
 In the case of a defendant against whose body, notwithstand- 
 ing the provisions of the thirtieth section of the non-imprison- 
 ment act (^ante, p. 160,) an execution can be issued from a Jus- 
 tice's Court, the execution must be directed to some constable 
 within the same county, and must command him to levy' the 
 debt or damages, and costar of the goods and chattels of the 
 person against whom it shall be issued (excepting such goods 
 and chattels as are by law exempted from execution,) and to 
 bring the money, at. a certain time and place therein to be men- 
 
474 NEW YORK JUSTICE. 
 
 tioned, before such Justice, to render to the party who recov- 
 ered the same; and, if the execution be issued against a male 
 person, it must command the constable, that if no goods or 
 chattels can be found, or not sufficient to satisfy such execution,', 
 to take the body of the person against whom the execution is 
 issued, and convey him to the common jail of the county, there 
 to remain until such execution shall be satisfied and paid. (2 
 E. S. 249, \ 131.) 
 
 By the thirtieth section of the non-imprisonment act, it is, pro- 
 vided, that no execution issued on any judgment rendered by 
 any Justice of the Peace, upon any demand arising upon con- 
 tract, express or implied, or upon any other judgment founded 
 upon contract, whether issued by such Justice, or by the clerk 
 of the county, shall contain a clause authorizing an arrest or 
 imprisonment of the person against whom the same shall issue, 
 unless it shall be proved by the affidavit of the person in whose 
 favor such execution shall issue, or that of some other person, 
 to the satisfaction of such clerk or Justice, either, 1. That such 
 judgment was for the recovery of money collected by any pub- 
 lic officer; or, 2. For official misconduct or neglect of duty; or, 
 3. For damages for misconduct or neglect in any professional 
 employment. (Laws of 1831, chap. 300, § 30.) 
 
 No female can be arrested or imprisoned upon any execution 
 issued from a Justice's Court. (2 JR. 8. 253, § 158.) 
 
 Every judgment bears interest from the time of perfecting 
 the same; [Laws of 1844, cha-p. 324, § 1;) and whenever a 
 judgment is rendere^, and execution is issued thereon, it is law* 
 ful to direct, upon such execution, the collection of interest on 
 the amount recovered, from the time of recovering the same 
 until such amount be paid. {id. § 2.) 
 
 Every execution issued by a Justice must be dated on the 
 day when it is actually issued. (2 R. 8. 251, § 144.) It must 
 be signed by him, and may be under seal or without seal. {id. 
 267, § 232.) It must be entirely filled up, and must have no 
 blank either in the date or otherwise, at the time of its delivery 
 to an officer to be executed; and if issued and delivered to an 
 officer to be executed, contrary to this provision, it is entirely 
 void. {id. § 233.) A Justice has no right to give a constable 
 a general authority to fill up or alter any process, and any altera^ 
 tion or filling up, unless in the presence and by the direction 
 
ISSUING EXECUTIONS. 475 
 
 of the Justice, renders the process void. (10 Johns. 405; Peo- 
 ple vs. Smith, 20 id. 63.) 
 
 [For forin ot Execution, see McCall's Cleek's Assistant, p. 343.] 
 
 A Justice has no power to amend an execution after it has 
 been executed. (Toqfys. Bentley, 5 Wend. 276.) 
 
 When a judgment is recovered against the board of supervi- 
 sors, or the county superintendents of the poor, of any county, 
 or against any town, or the supervisor, or the overseers of the 
 poor thereof, no execution can be awarded or issued upon such 
 judgment, unless the same has been rendered for the costs of a 
 suit commenced by any of the said officers in their individual 
 names; in which cases, such costs must be collected of the plain- 
 tiffs individually, and the amount theaeof must be allowed to 
 them in their account of official expenditures, by the board au- 
 thorized to audit such accounts, if such suit appears to have 
 been necessarily commenced in good faith. (2 R. 8. 475, \ 
 107.) Under this provision it has been held, that town and 
 county officers are not liable individually for the costs of a 
 judgment rendered against them in suits commenced by them, 
 although their individual names appear on the record, provided 
 it also appears that they sued in their representative character 
 for the benefit of their constituents, and not for their own ben- 
 efit. And such exemption applies as well to suits for penalties, 
 as to other matters, vrhere it is the duty of the officers to sue. 
 {Avery vs. Slack, 19 Wend. 50.) 
 
 In suits by and against loan-officers, commissioners of loans, 
 town superintendents of common schools, commissioners of high- 
 ways, trustees of school districts, and trustees of gospel and 
 school lots, the debt, damages, or costs recovered against them, 
 mtist be recovered in the same manner as against individuals; 
 and the amount so collected must be allowed to them in their 
 official accounts. (2 R. 8. 476, § 108.)' 
 
 When a judgment is obtained against joint debtors, {Ante, p. 
 453,) upon process which was not served upon all the defend- 
 ants, execution may be issued in form against all; but the Justice 
 must endorse thereon the names of such of the defendants, who 
 did not appear in the suit, as were not served with process of 
 
476 
 
 NEW TOKK JUSTICE. 
 
 warrant, summons or attachment. (2 B. iS. 251, § 141.) The 
 endorsement may be made in this form: 
 
 James Brown, one of the defendants within named, was not 
 served with process, and did not appear in the suit. 
 
 G H, Justice. 
 
 Such execution must not be served upon the persons of the 
 defendants whose names are so endorsed thereon; nor can it be 
 levied on the sole property of any such defendant; but it may- 
 be collected of the personal property of any such defendant, 
 owned by him as a partner with the defendants appearing or 
 served with process, or with any of them. (id. § 142.) 
 
 Where any county is divided, any judgment recovered pre- 
 vious to such division, or, after such division, upon any proceed- 
 ings instituted previous thereto, before any Justice of the Peace, 
 may be collected by execution to be issued to a constable of the 
 county where such judgment is rendered, who must execute the 
 same in the same manner as if such division had not been made. 
 (id. 556, § 35.) 
 
 When any recovery is had before a Justice of the Peace for a 
 penalty or forfeiture incurred by violating any provision of the 
 title of the Revised Statutes relating to fisheries, execution must 
 issue therepn immediately, and the Justice must endorse upon 
 such execution the cause for which such judgment was rendered; 
 and, in case no goods or chattels can be found to satisfy the 
 execution, the constable having the same must commit such 
 defendant to the jail of the county, and must deliver to the 
 keeper thereof a certified copy of the execution and endorse- 
 ment; by virtue of which such keeper must detain such defend- 
 ant for a period not exceeding sixty days, without allowing him 
 the benefit of the liberties of such jail. (2 R. 'iS. 251, § 143.) 
 
 If an execution is returned by the constable unsatisfied, in 
 whole or in part, a further execution, for the amount remaining 
 due, may be issued, {id. 252, ^ 147.) 
 
 An action can be maintained against a party who wrongfully 
 and wilfully sues out an execution on a judgment which he 
 knows to be paid and satisfied, whereby the property of the 
 defendant is taken and sold; and, to support the action, it is 
 not necessary to allege or prove actual malice. {Brown vs. 
 Feeter, 7 Wend. 301.) 
 
renewing executions. 477 
 
 2. Renewing Executions. 
 
 If any execution be not satisfied, it may from time to time be 
 renewed by the Justice issuing the same, by an endorsement 
 thereon to that effect, signed by him, and dated when the same 
 is made. If any part of such execution has been satisfied, the 
 endorsement of renewal must express the sum due on the execu- 
 tion. {Laws of 1857, chap. 512.) The same statute provides, 
 that every such endorsement shall be deemed to renew the 
 execution in full force, in all respects, for sixty days from the 
 date thereof. 
 
 Before renewing an execution, the Justice should be certain 
 that the execution has not been satisfied. For this purpose, he 
 may require the return, of the constable as to that fact, or he 
 may require him to answer under oath; for, if the Justice issues 
 a second execution, or renews the first, when the judgment has 
 been satisfied, he is a trespasser, and will not be excused on the 
 ground of the false representation of the plaintiff that the first 
 was lost. (6 Wend. 367; Ostrander vs. Walker, 2 Hill, 329.) 
 Unless the Justice signs the endorsement of renewal, the con- 
 stable who executes the process will be a trespasser. {Barhydt 
 vs. Van Valk, 12 Wend. 145.) 
 
 § 48. Renewal of Execution. 
 
 The within execution is hereby renewed, [If necessary, add: 
 for the sum of dollars, with interest from this date.] 
 
 Dated the day of 18 . 
 
 G H, Justice. 
 
 An execution may be renewed by^a Justice while it remains 
 unsatisfied, even though sufficient property to satisfy it has 
 been levied on and is held under the levy, where there is not 
 time enough remaining to advertise and sell during the life of 
 the execution. {People vs. Hopson, 1 Den. 574.) And, where 
 the property cannot be sold for want of bidders, the execution 
 may be renewed on the last day it has to run, so as to retain its 
 lien. {Qhapman vs. Fuller, 7 Barb. 70.) 
 
 An execution may be renewed without a return of nulla bona 
 endorsed, and the endorsement by the Justice of "execution 
 renewed," and signed by him, is a renewal, and is evidence that 
 the oflicer had satisfied him that there were no goods on which' 
 
478 ' NEW YORK JUSTICE. 
 
 he could levy. {Wickliam vs. Miller, 12 Johns. 320.) So, 
 also, it may be renewed, after it has run out, and from time to 
 time, so long as the plaintiff chooses, (yisger vs. Ward, 1 
 Wend. 551.) 
 
 The provision of the statute requiring the renewal of the exe- 
 cution to express the sum due thereon, is merely directoiy, and, 
 although something has been paid on the first execution, the 
 omission to express the amount due, will not render the plain- 
 tiff liable as a wrong-doer, if there be no attempt to collect 
 more than is due. {Ostrander vs. Walher, 2 Hill, 329.) 
 
 Any Justice before whom any judgment has been entered, 
 and whose term of office has expired, may issue or renew exe- 
 cutions on any such judgment, after the expiration of his office, 
 at any time within two years from the time said judgment was ' 
 rendered, subject, however, in other respects, to the provisions 
 as to issuing executions on Justices' judgments. (Laws of 1846, 
 chap. 276.) ^ ' 
 
 3. Executions on Judgments Docketed in County Coubt. 
 
 The provisions of the Code, § 63, authorizing a transcript" of 
 a judgment rendered by a Justice, to be filed in the counfy 
 clerk's office, have been cited. If the judgment be dock- 
 eted with the county clerk, the execution must be issued by 
 him to the sheriff of the county, and will have the same 
 effect, and must be executed in the same manner, as other exe- 
 cutions and judgments of the County 'Court, except that the 
 judgment will be a lien on real property, only from the time 
 of filing and docketing the transcript, and not then, if the judg- 
 ment be for a less sum than twenty-five dollars, exclusive of 
 costs. {Code, § 63, and ^ 64, subd. 13.) 
 
 Under the Justices' act, prior to the Eevised Statutes, it was 
 held, that the county clerk was authorized to renew an execu- 
 tion issued by him, or to issue a further execution. (Jackson 
 vs. Paige, 4 Wend. 585.) A sale made under an execution 
 issued by a county clerk oil a transcript of a Justice's judgment, 
 has been held good, although made after the return day. (Jack- 
 son vs. Brovmer, 7 Wend. 388.) 
 
 It does not fall within the scope of this work to consider at 
 length the various topics connected with the issuing of an exe- 
 cution on a Justice's judgment docketed in the county clerk^B 
 
EXECUTIONS IN COUNTY COURT. 479 
 
 office — the duty of the clerk in issuing the execution — ^the con- 
 trol of the County Cojirt over it — its form — the duty of the 
 sheriff in executing it — his liability — his fees — the proceedings 
 to compel a return — the sale and redemption of real estate 
 under it— the exemption under it, including the homestead 
 exemption — -and the mode of discharging the judgment from 
 the docket. It will be sufficient to refer to various statutoiy 
 provisions, without citing them, bearing upon these various 
 points: 
 
 As to issuing executions by the county clex'k, Code, § 64, 
 subds. 12 and 13. 
 
 As to the control of the County Court over such executions, 
 2 E. S. 254, §§ 164,166. 
 
 As to their form, 2 E. S. 254, ^ 167; Laws of 1831, chap. 
 
 300, § ao. . V 
 
 As to the sheriff's fees, 2 E. S. 266, § 229. 
 
 As to enforcing a return, 2 E. S. 254, ^ 168. 
 
 As to the sale and redemption of real estate, 2 E. S. 368, 369, 
 370, §§ 34 to 44; id. 370 to 374, ^§ 45 to 67; Laws of 1836, 
 chap. 525; Laws of 1847, chap. 410; Laws of 1835, chap. 189; 
 Laws of 1837, chap. 462. 
 
 As to the exemption of burying grounds. Laws of 1847, 
 chap. 85. 
 
 As to the homestead exemption, Laws of 1850, chap. 260. 
 
 As to discharging judgments of record, 2 E. S. 362, 363, 
 ^^ 23 to 27; Laws of 1834, chap. 262. 
 
 4. Levy and Sale. 
 
 On receiving an execution, it is the duty of the constable to 
 endorse thereon the year, month, day, and hour of the day, 
 when he received it, (2 R. 8. 364, § 10,) and then to levy upon 
 any property of the defendant liable to be taken. 
 
 To constitute a levy, the property must be taken into the 
 aqtual or constructive possession of the constable. For the 
 purpose of taking actual possession of goods, they should be 
 within his view,' and subject to his disposition and control. 
 {Price vs. Shipps, 16 Barb. 585.) It is not necessary that he 
 should remove them, or leave an assistant in possession of 
 them, {Barker vs. Benmngrer, 14 JVew York R. 270,) they may 
 be left with the defendant at the risk of' the plaintiff, or of the 
 
480 NEW YORK JUSTICE. 
 
 officer, or security for their deliyery at some future day may be 
 taken. (16 Johns. 288; 3 Wend. 446; 11 id. 548; 14 id. 123; 
 19 id. 495; Van Wyck vs. Pine, 2 Hilh 666.) An actual touch- 
 ing of the goods is vnot necessary, but merely such a course of 
 action as, in effect, is calculated to reduce them to the dominion 
 of the law. They are then considered as in the custody of the 
 law. The great point is, that the debtor and the officer should 
 understand that a levy has been made, and that it should be 
 made in an open and public manner. Where the sheriff, in 
 view of certain goods of the judgment debtor, and in the pres- 
 ence and with the knowledge of the judgment debtor, and of a 
 third person in whose possession the goods were, touched a part 
 of them, saying that he levied, and made a memorandum at the 
 time on the execution, and afterwards told the attorney of the 
 execution creditor that he had levied on double enough to pay 
 the judgment; these facts were held sufficient to constitute a 
 valid levy. Taking, an inventory, though desirable, is not abso- 
 lutely necessary. (JVtttts vs. Cleveland, 3 U. D. Smith, 553.) 
 The seizure of the property works, however, no change of iii- 
 terest, beyond vesting a special property in the officer. The 
 general property still remains in the debtor, and he is not abso- 
 lutely divested of it until a sale. {Green vs. BurTce, 23 Wemd. 
 490.) 
 
 The constable must make an actual levy on the goods. 
 Merely seizing a few articles outside of a store, or warehouse, 
 and proclaiming a levy on the goods locked up in the store, 
 and not within view, is not a levy; but the constable should 
 break open the store, actually take the goods, and make an 
 inventory of them. {Haggerty vs. Wilher, 16 Johns. 287.) 
 
 An officer may break open a warehouse, store, or bam, not 
 annexed to a dwelling-house, to make a levy, {id.) But he 
 cannot break open a dwelling-house. If he even lifts the latch 
 and opens the outer door, against the owner's known will, 
 though in his absence, and enters and levies upon goods, it, is 
 a forcible and unlawful brealdng and entering, and even a 
 stranger, by the owner's directions, may dispossess hina, and 
 expel him from the house. (1 Hill, 336; Curtis vs. Hubbard, 
 4 id. 437.) 
 
 Where an officer, at the time of levying upon property, did 
 not see the property, nor know where it was, but sat on his 
 
LEVY AND SALE. 481 
 
 horse in the road, while the defendant in the execution named 
 over to him what property he had, and the officer made a mem- 
 orandum of it on a piece of paper, it was held that the levy, 
 although sufficient as against the judgment debtor, was not an 
 actual levy, so as to affect persons acquiring a title subsequently 
 derived from the judgment debtor. {Dresser vs. Ainsworth, 
 9 Barb. 619.) 
 
 A constable, after taking goods and chattels into his custody 
 by virtue of an execution, must endorse thereon the time of 
 levying the same. (2 R. 8. 252, § 148.) 
 
 [For forms of Endorsements on Execution, see McCall's 
 Cmek's Assistant, p. 344.J 
 
 [For form of Endorsement of Levy endorsed on Execution, 
 see McCall's Cleek's Assistant, p. 344.] 
 
 A constable, after making a levy under an execution, may 
 deliver the goods to a third person, on his giving a receipt to 
 return them, or pay the amount of the execution; and, in such 
 case, the officer cannot afterwards take other goods of the 
 defendant on the same execution, if the goods he first took 
 were enough to satisfy it. (12 Johns. 207; Burrall vs. Acker, 
 23 Wend. 606.) 
 
 [For form of Receipt of Goods taken on Attachment or Exe- 
 cution, see McCall's Constable's Guide, p. 171.J 
 
 A constable cannot levy upon or sell any property, or im- 
 prison a defendant upon any execution, after the time limited 
 therein for its return, unless such execution has been renewed. 
 Nor can any constable do any act under a renewed execution, 
 after the expiration of the time or times for which the same may 
 have been renewed. (2 R. 8. 253, § 161.) 
 
 Any constable to whom any execution has been issued and 
 delivered, and whose term of office expires before the time 
 within which the collection or return of such execution is re- 
 quired by law, must and may proceed in all matters relative to 
 said execution, in the same manner as if the term of office of 
 31 
 
482 NEW YORK JUSTICE. 
 
 Buch constable had not expired. (2 H. S. 274, § 285; Laws oj^ 
 1830» chap. 320, § 37.) 
 
 Such constable and his bail are liable for any neglect of duty, 
 and for moneys collected upon such execution, in the same man- 
 ner and to the same extent as if the term of office of such con- 
 stable had not expired, {id.; 2 R. 8. 274, § 286.) 
 
 It was formerly held, that a levy extinguished or satisfied the 
 judgment in all cases, but such is not now the law. In the case 
 of Greene vs. J}urke, (23 Wend. 490,) Mr. Justice Cowen re- 
 viewed the former decisions as to what constitutes a levy, and 
 its effect as to the officer, the parties, and third persons, and 
 held that a levy is "not an absolute extinguishment, though it 
 may operate as an extinguishment; that it must be fairly tried, 
 but that if it fails, in whole or in part, without any fault of the 
 plaintiff, he may go to his farther execution; and that the plain- 
 tiff may, by tampering with the levy himself, lose his debt, as, 
 if he should release from a levy property sufficient to pay his 
 debt. In a more recent case. The People vs. Hopson, (1 Den. 
 574,) Chief Justice Bronson holds the following language: 
 " Until an execution has been satisfied, it may be renewed by 
 the Justice. It is said that the levy upon sufficient personal 
 property to pay the debt was a satisfaction of the judgment; 
 and consequently that the renewal was void. "We have rejDeat- 
 edly held that such a levy does not always satisfy the judgment. 
 And if the broad ground has not yet been taken, it is time it 
 should be asserted, that a mere levy upon sufficient personal prop- 
 erty, without any thing more, never amounts to a satisfaction of 
 the judgment. So long as the property remains in legal custody, 
 the other remedies of the creditor will be suspended. But, 
 without something more than a mere levy, the judgment is not 
 extinguished. There is no foundation in reason for a different 
 rule. The mere levy neither gives any thing to the creditor, 
 nor takes any thing from the debtor. It often happens that 
 the levy is overreached by some other lien, is abandoned for 
 the benefit of the debtor, or defeated by his misconduct. In 
 such cases; there is no color for saying that the judgment is 
 gone; and yet they are included in the notion that a levy satis- 
 fies the debt. The true rule I take to be tliis: the judgment is 
 satisfied when the execution has been so used as to change the 
 title, or in some other way deprive the debtor of his property. 
 
LEVY AND SALE. 483 
 
 This includes the case of a levy and a sale; and also the case 
 of a loss or destruction of the goods after they have been taken 
 out of the debtor's possession by virtue of the process. When 
 the property is loss to the debtor in consequence of the legal 
 measures which the creditor has pursued, the debt is gone, al- 
 though the creditor may not have been paid. . He must take his 
 remedy against the officer, if he has been in fault; and, if there 
 be no such remedy, the creditor must bear the loss. But, until 
 the debt is paid, or the debtor has lost his property in conse- 
 quence of the levy, the judgment remains in force." In a still 
 later case, Peck vs. Tiffany, {Corns. 451,)jdecidedbythe Court 
 of Appeals, it was held, that where a sheriff levies an execution 
 upon sufficient property to satisfy it, and, through his negli- 
 gence . or misconduct, the property is lost, destroyed, or dis- 
 posed of, so that the defendant is deprived of the benefit thereof, 
 it is a satisfaction of the debt, and the plaintiff must seek his 
 satisfaction against the officer; but that, when the debtor has 
 neither paid the debt nor been deprived of his property, a levy 
 is not a satisfaction. 
 
 A constable's levy under an execution enures also as a levy 
 upon other executions which afterwards come to his hands; and 
 the rule is the same, although, at the time the junior execution 
 is received, the senior one has become dormant by reason of in- 
 strufitions for delay, {id.) 
 
 A levy under an execution remains good against the debtor, 
 although the process may become dormant as to junior execu- 
 tions; and the officer has, by virtue of such levy, the custody 
 and control of the property, {id.) 
 
 If a constable levy on an execution, and make the amount by 
 a sale, and a third person, as owner of the goods, recover agaiast 
 him an equal sum, the judgment is wholly unsatisfied, and may 
 be enforced by issuing a new execution. (19 Wend. 80; New- 
 land vs. Baker, 21 id. 264.) So, too, if the defendant defeats 
 the effect of a levy and sale, by suing the plaintiff as a tres- 
 passer, and recovering the value of the property, the judgment 
 revives. {Piper vs. Elwood, 4 Pen. 165.) 
 
 A constable should not levy upon more goods and chattels than 
 are neceseary to satisfy the execution; and while he may take 
 what will be ample to satisfy the execution, he would not be 
 justified in taking an unreasonable a^njount,' or in selecting par- 
 
484 NEW YORK JUSTICE. 
 
 ticular articles, to annoy the defendant, or to put him to unneces- 
 sary inconvenience. An action may be maintained against an 
 officer for an excessive levy wantonly made. (Derell vs. Odell, 
 3 Hill, 215.) But a levy of execution upon, sufficient personal 
 property is not per se a satisfaction of the judgment. And, 
 although a constable holding an execution issued upon a Justi- 
 ce's judgment has levied upon sufficient property to satisfy it, 
 he ;may levy upon other property at a subsequent time, and sell 
 it, without making himself liable as a trespasser. {^Denvrey vs. 
 Fox, 22 Barb. 522.) 
 
 On seizing goods iby virtue of an execjution, the officer acquires 
 a special property, that entitles, him to maintain an action for a 
 subsequent wrongful conversion of them. (3 Hill, 215, supra.) 
 
 A constable, after taking goods and chattels into his custody 
 by virtue of an execution, and after endorsing thereon the time 
 of levying the same, must immediately give public notice, by 
 advertisement, signed by himself, and put up at three public 
 places in the city or town where such goods and chattels are 
 taken, of the time and place, within such city or town, when and 
 where they will be exposed to sale. Such notice must describe 
 the goods and chattels taken, and must be put up at least five 
 days before the time appointed for the sale. (2 R. 8. 252, 
 § 148.) 
 
 The term goods and chattels means personal and movable 
 goods, such as may be taken into custody, and not such as are 
 immovable and partake of the freehold. 
 
 [For form of Contable^s Advertisement of Sale, see McCall's 
 Constable's Guide, p. 186.] 
 
 A constable may Sell everything which is raised annually by 
 labor and cultivation, as corn or wheat. growing; {Whipple vs. 
 Foote, 2 Johns. 418;) and, though grass, fruit and trees grow- 
 ing, are, in general, parcel of the realt;f, {Bank of Landwg-, 
 burgh vs. Qrary, 1 Barb. 542,) yet, where growing grass is 
 owned by one who does not also own the land, it is personal 
 property, and may be taken on execution. {Smith vs. Jenks, 
 1 Den. 580.) Any property which a tenant has a right to 
 remove from the premises may be levied on. {Stewart vs. 
 Doughty, 9 Johns.' 168.) 
 
LEVY AND SALE. 485 
 
 Such articles as are properly fixtures, and form a part 
 of the realty, cannot be taken on execution ; but when they 
 have been severed, they become personal property, and may 
 be taken. {Morgan vs. Varick, 8 Wend. 587.) But if sepa- 
 rated for preservation, and to be returned to the same place 
 in their season, as hop-poles, they still remain real estate, and 
 cannot be levied on. {Bishop vs. Bishop, 1 Kern. 133.) A 
 stove not affixed, and communicatiug with a chimney by its pipe, 
 which is attached only by temporary fastenings, is not a fixture, 
 though the house has no fire-place. (Freeland vs. Southworth, 
 24 idi 191.) A bark-mill, a cider-mill and press, and machinery 
 not permanently attached to the freehold, may be levied on. 
 (20 id. d36; 6 Johns. 5; Holmes vs. Tremper, 20 id. 29.) 
 
 Where a farm is let for agricultural purposes, there being no 
 stipulation or custom to the contrary, the manure made on the 
 farm belongs to it, and not to the tenant; and that whether it be 
 in heaps- or in the barn-yard. (15 Wend. 169; Goodrich vs. 
 Jones, 2 Hill, 142.) Fences are a part of the freehold, and the 
 accidental or temporary detachment of the rails, without any 
 latent of the owner to divert them from their use as a part of 
 the fence, does not change their nature; and neither fences nor 
 rails can be taken on an execution against the tenant, (id.) 
 Growing ti'ees, when sold by a valid sale in writing by the owner 
 of the fee in the land, are severed from the land, in contempla- 
 tion of law, and even before an actual severance, become per- 
 sonal chattels. {Warner vs. Leland, 12 Barb. 613.) 
 
 Upon execution against the property of a defendant, a con- 
 stable must levy upon any current gold or silver coin belonging 
 to such defendant, and must pay and return the same as so much 
 money collected, without exposing the same for sale at auction. 
 (2 i?. S. 366, § 18.) And, upon such execution, he may levy 
 upon and sell any bills or other evidences of debt, issued by 
 any moneyed corporation, or by the government of the United 
 States, afad circulated %s money, which belong to the defendant 
 in such execution, {id. § 19.) A promissory note cannot be 
 levied upon, {Ingalls vs. Lord, 1 Oow. 240,) or bank shares or 
 shares in a public library. {Denton vs. Livingston, 9 Johns. 97.) 
 
 When goods or chattels are pledged for the payment of 
 money, or the performance of any contract or agreement, the 
 right and interest in such goods, of the person making such. 
 
486 NEW YORK JUSTICE. 
 
 pledge, may be sold on execution against Him, and the purchaser 
 will acquire all the right and interest of the defendant, and will 
 be entitled to the possession of such goods and chattels, on com- 
 plying with the, terms and conditions of the pledge. (2 R. 8. 
 366, § 20.) 
 
 The right and interest of a pledgor cannot be sold on execu- 
 tion, unless the goods be present, and within view of those 
 attending the sale. Where the right and interest of a pledgee 
 are levied on, the officer may take actual possession of the goods, 
 and hold them until he sells; but, after the sale, the pledgee' 
 is entitled to the possession of the goods, until the purchaser 
 redeems them. (23 Wmd. 653; 6 Hill, 484; Sti^vs. Hart, 1 
 Corns. 20.) 
 
 The interest of a mortgagor of personal property, who has a 
 right to redeem, and a right to the possession of the mortgaged 
 property for a definite period, may be sold upon execution. 
 {id. 295; 8 Wend. 339; Hull vs. Gamley, 1 Kern. 501.) And 
 personal property mortgaged, may, after forfeiture, be levied 
 upon by virtue of an execution against the mortgagee, although 
 it remains in the hands of the mortgagor. {Ferguson vs. Lee, 
 9 Wend. 258.) "Where personal property, consisting of several 
 articles, is sold subject to a chattel mortgage, the whole ought 
 to be sold in one parcel. {Tift vs. Barton, 4 Den. 171.) 
 
 ■ When an execution on a judgment against joint debtors has 
 endorsed upon it the name's of some defendants as not having 
 appeared in the suit aiid not having been served with process, 
 the constable must be careful not to serve such execution upon 
 the persons of those defendants, and not to levy it upon the 
 sole property of any of them; but it may be collected of the 
 personal property of any one of them, owned by him as a part- 
 ner with those who appeared or were served with process, or 
 with any of them. (2 R. 8. 251, §§ 141, 142.) 
 
 No execution issued upon a judgment obtained before a Jus- 
 tice in any suit commenced by attachment,* when the defendant 
 is not personally sei'ved with the attachment or summons, and 
 does not appear, can be served upon any other property than 
 such as was seized under the attachment. {Laws of 1831, chap. 
 300, ^ 39.) 
 
 When personal property is levied"upon, but not removed from 
 the debtor's possession, the officer may advertise it to be sold. 
 
LEVY AND SALE. 487 
 
 and, sell it on the premises of the debtor, taking care to do no 
 unuecessary damage, and third persons may rightfully attend 
 the sale as bidders. {People vs. Hopson, 1 Den. 574.) 
 
 Whenever any execution is issued against the property of any 
 person, his goods and chattels, situated within the jurisdiction 
 of the officer to whom such execution is delivered, will be bound 
 only from the time of the delivery of the same to be executed. 
 (2 R. 8. 365, § 13.) 
 
 Any execution or attachment issued out of a Justice's Court, 
 if actually levied, has preference over any other execution issued 
 out of any Court, whether a Court of Record or not, which has 
 not been previously levied, (id. § 16.) 
 
 The title of any purchaser in good faith of any goods or chat- 
 tels, acquired prior to the actual levy of any execution, without 
 notice of such execution being issued, will not be divested by 
 the fact that such execution was delivered to an officer to be 
 executed before such purchase was made. {id. § 17.) ^ 
 
 A constable is sometimes unable to satisfy himself whether the 
 title to the property is in the defendant or in some other person; 
 and he must be careful not to levy upon or sell the property of 
 any person other than the defendant, for, by so doing, he will 
 render himself liable as a trespasser. 
 
 In a case where the goods taken by a constable are claimed 
 to belong to some other person than the debtor, or where the 
 constable has reasonable grounds of doubt on the question of 
 property, he is bound, if no indemnity is tendered him by the 
 plaiiatiff, to call a jury to try the title to the property. If they 
 find it not to be the defendant's in the execution, he is justified 
 in returning the execution nulla bona, unless an indemnity is 
 tendered to him. If an indemnity is tendered, he is bound to 
 proceed, notwithstanding the finding of the jury. But a plain- 
 tiif is never bound to tender an indemnity, until a jury have 
 passed on the question of property. An officer acts at his peril 
 in making a return of nulla bona under any other circumstances; 
 and the declaration of the plaintiif or his attorney, that he will 
 sell, although the jury may find that the property did not 
 belong to the defendant, does not dispense with calling a jury. 
 (8 Johns. 188; 10 id. 98; 8 Goiv. 65; Piatt \s. Sherry, 7 Wmd. 
 236.) If the plaintiff in the execution oflfers in writing, or in 
 spme satisfactory manner, to iiidemnify the officer, he is bound 
 
488 NEW YOKK JUSTICE. ^ 
 
 to proceed and sell, and cannot excuse himself by taking the 
 inquisition of a jury. (Van Clef vs. Fleet, 15 Johns, ilil .) 
 
 § 49. Bond to indemnify Constable. 
 
 Know all men by these presents: That we, A B and E F, of 
 the town of , in the county of , are held and firmly 
 
 bound unto H C, in the sum of \the penalty to he here inserted 
 must be large enough to be abundant security to the officer, who 
 cannot recover on the bond more than the amount of the penalty^ 
 dollars, to be paid to the said H C, or to his certain 
 attorney, executors, administrators, or assigns; to which pay- 
 ment, well and truly to be made, we bind ourselves, our and 
 each of our heirs, executors and administrators, jointly and 
 severally, firmly by these presents. Sealed with our seals, and 
 dated the day of , 18 . 
 
 Whereas, the said H C, as a constable of the county of , 
 
 by virtue of a certain execution issued by G H, Esq., one of the 
 Justices of the Peace of 'said county, against C D, in favor of 
 the said A B^ for dollars damages, and dollars costs, 
 
 has seized [or, is about to seize] one lumber wagouj and one set 
 of double harness, now or lately in possession of the said C D, 
 with intent to sell the same, in order to satisfy the said execu- 
 tion: Now, therefore, the condition of this obligation is such, 
 that if the above bounden A B shall, at all times, and forever 
 hereafter, keep the said H C harmless and indemnified, of, from 
 and against all damages, costs, charges,, trouble and expense, of 
 what nature soever, which he may be put to, sustain, or suffer, 
 by reason of such levy and sale, or either, then this obligation, 
 to be void; else, of force. 
 
 Sealed and delivered ) A ' 
 
 in presence of ^ ^ 
 
 B [l. S.1 
 F [l. s.] 
 
 At the time and place appointed in the advertisement of sale, 
 if the goods and chattels be present, and be pointed out to the 
 inspection and examination of the bidders, the constable must 
 expose them to sale at vendue to the highest bidder. (2 R. 8, 
 252, ^ 149.) The property must be pointed out to the bidders, 
 and be specially designated. It must not be left to any future 
 act to ascertain what property is sold. Accordingly, where a 
 constable levied upon thirteen sheep generally, and, on the day 
 of sale, the sheep of the defendant in the execution, numbering 
 twenty-one or twenty-two, being present, the constable offered 
 for sale thirteen of the sheep, without designating which, and, 
 on being asked by a bidder which sheep be sold, repUed^jfAe 
 
LEVY AND SALE. 489 
 
 best, the fattest, it was held, that the constable had no right to 
 sell in such a manner as to authorize the purchaser to select out 
 thirteen sheep from the flock, and that the purchaser acquired 
 no title to the sheep thus selected by him. {Wamng vs. Loomis, 
 4 Bath. 484.) If only a part of the property sold is present at 
 the sale, and open to the inspection of bidders, the sale as to 
 that part of it is good, but void as to that which is not present. 
 {Linnerdoll vs. Doe, 14 Johns. 222.) The proper course is, to 
 sell so much of the property taken as will satisfy the execution, 
 and it must be sold separately when it can be reasonably and 
 conveniently so sold. (8 id. 333; Sheldon vs. Soper, 14 id. 
 352.) Moreover, the statute requires, that it shall be offered 
 for sale in such lots and parcels as shall be calculated to bring 
 the^highest price. (2 B. S. 367, ^ 23.) 
 
 Every bidding at an auction is nothins: more than an offer on 
 one side, which is not binding on either side till it is assented 
 to; and the bidder may retract his bid at aiiy time before the 
 property is knocked down. (3 Term Rep. 148.) But, where 
 the goods are knocked down by the officer, the bidder is liable 
 to pay for them; or, if he refuses to take the goods, they may 
 be re-sold, and an action may be maintained against the bidder 
 for any loss on their re-sale. (4 Uspinasse, 253.) 
 
 K no bidders attend the sale, the constable should postpone 
 it, and give notice to the plaintiff to attend; and, if he do not, 
 the constable will be excused in returning that the property re- 
 mains on hand for want of buyers. He will also be excused in 
 making such a return, if he cannot sell the property except at a 
 great sacrifice. But, even after having made such return, he 
 must proceed to sell the first opportunity. {McDonald vs. 
 Ntilson, 1 Cow. 139.) 
 
 The adjournment of a sale, even after it has commenced, tO a 
 different time and place, is a matter of discretion with the con- 
 stable; and, where the sale is so adjourned for sufficient reason, 
 and without fraud or abuse, it is good. {Tinkone vs. Purdy, 
 5 Johns. 345.) It is provided, however, by statute, that no 
 constable shall ask or receive any money or valuable thing from 
 a defendant, or any other person, as a consideration; reward, or 
 inducement, for omitting to arrest any defendant, or to carry 
 himhefore any Justice; or for delaying to take any party to- 
 prison; ^r for postponing th& sale of any property,-under any 
 
490 NEW YORK JUSTICE. 
 
 execution; oi- for omitting or delaying the execution of any 
 duty pertaining to his office. (2 R. 8. 267, ^ 234.) Every 
 constahie offending against this provision is guilty of a misde- 
 meanor; and, on conviction, is subject to fine or imprisonment, 
 or both, in the discretion of the Court; and every such convic- 
 tion operates as a forfeiture of the office of the constable so con- 
 victed, (id. § 236.) 
 
 Where, on the sale of goods or chattels on execution, a single 
 bid amounts to fifty dollars or more, then, unless the buyer on 
 -the spot accepts and receives at least part of the goods, or un- 
 less the buyer at the time pays at least a part of the purchase 
 money, the constable must take from the buyer a note or mem- 
 orandum of his purchase in writing, subscribed by him. This 
 is required in order to make the sale valid under the 8tatvt& of 
 Frauds. {See ante, jpp. 48, 99.) 
 
 § 50. Memorandum of Sale of Goods or Chattels. 
 
 In Justice's Court, 
 John Doe "] 
 against ) Before James Smith, Esq., Justice. 
 Richard Roe. J 
 
 January 15th, 1853. Thomas Brown bought of William Wil- 
 son, constable, at auction, on an execution issued in this cause, 
 One horse, $55. 
 
 Thomas Bkown. 
 
 No constable or other officer, can, directly or indirectly, pur- 
 chase any goods or chattels at any sale made by him upon exe- 
 cution; but every such purchase shall be absolutely void. {id. 
 25'2, § 150.) 
 
 A constable is protected in the execution of process, if it 
 appears regular on its face. If it shows on its face, that the 
 Court has jurisdiction of the subject matter, and nothing appears 
 on it to apprise the officer that the Court has not jurisdiction 
 also of the person of the party to be afiected by the process, he 
 will be protected in executing it, even though it is issued by a 
 Justice's Court which has not in fact jurisdiction in the case. 
 (5 Wend. 170; Van Etten vs. Hurst, 6 Hill, 31l<) But, if he 
 is sued for taking property under legal process, he must, in 
 order to justify himself, show that he was an officer, and had 
 lawful authority to take the property. {Copley vs. Rose, 2 
 Corns. 115.) - . 
 
PROPERTY EXEMPT FROM EXECUTION. 491 
 
 5. Property Exempt from Execution. 
 
 The follo"w;ing property, when owned by any person being a' 
 householder, is exempt from levy and sale under any execution, I 
 and such articles thereof as are movable, continue so exempt, | 
 while the family of such person, or any of them, may be remov- J 
 ing from one place of residence to another: 1. All spinning ) 
 wheels, weaving looms and stoves, put up or kept for use by j 
 the family; 2. The family Bible, family pictures and school 1 
 books, used by or in the family of such pei'son, and books, not \ 
 exceeding fifty dollars in value, which are kept and used as ] 
 part of the family library; 3. A seat or pew occupied by such 
 person, or his family, in any house or place of public worship; ] 
 4. All sheep, to the number of ten, with their fleeces, and the i 
 yarn or cloth manufactured from the same; one cow, two swine, 
 and the necessary food for them; all necessary pork, beef, fish, 
 flour, and vegetables, actually provided for family use, and 
 necessary fnel for the use of the family for sixty days; 5. All 
 necessary wearing apparel, beds, bedsteads and bedding, for 
 such person and his family; arms and accoutrements, required (' 
 by law to be kept by such person; necessary cooking utensils; 
 one table; six chairs; six knives and forks; six plates; six tea 
 cups and saucers; one sugar dish; one milk pot; one tea pot 
 and six spoons; one crane and its appendages; one pair of and- 
 irons, and a shovel and tongs; 6. The tools and implements of 
 any mechanic, necessary to the carrying on of his trade, not ex- 
 ceeding twenty-five dollars in value. (2 R. S. 254, § 169.) j 
 Also one sewing machine, with the appurtenances thereunto'/ 
 belonging. {Laws of 1860, ckajp. 152, p. 245.) __„--^ 
 
 The fleeces, or the yarn or cloth* manufactured from the 
 fleeces of ten sheep, are exempted from execution while in the 
 hands of a householder, whether he be or be not the owner of 
 sheep. (11 Wend. 44; Bracket vs. Watktns, 21 id. 68.) 
 
 Potatoes planted for family use, though not dug, are exempt, 
 if within the quantity necessary for the family; and all neces- 
 sary vegetables are exempt, in any stage of the process of 
 obtaining them for the family use, whether by pilanting them 
 or in any other way. (^Carpenter vs. Henington, 25 Wend. 
 370.) ^ 
 
 The cow of a householder is exempt, though the head of the 
 
492 NEW TOEK JUSTICE. 
 
 famHy leave the State, leaving his family living together; and 
 it is also exempt when the family is moving from one house to 
 another. The consent of the wife that the oiEcer may levy 
 upon property exempt from execution will not bind the hus- 
 band. (Woodward !vs. Murray, 18 Johns. 400.) 
 
 Necessary wearing apparel is not exempted in all cases, but 
 only wheijL it is owned by the householder, or head of the fam- 
 ily; but the exemption extends to apparel furnished by him' 
 for the use of others living with him. {Bovme vs. Witt, 19 
 Wend. 475.) 
 
 The party claiming an exemption for his cooking utensils 
 must show, affirmatively and certainly, that the cooking uten-» 
 sils taken in. execution were in fact necessary, and not merely 
 that they might be useful in cooldng. (14 Johns. 434; Wilson 
 vs. Ellis,' 1 Dm. 462.) , 
 
 The swrgical instruments of • a physician have been held 
 exempt as his "tools;" and his wagon used in his business, if 
 he is a householder; (1 Ooms, 129; Van Buren vs. Loper, 29 
 Barb. 388;) and the ^professional books necessary to a profes- 
 sional man who supports a family, for the practice of his pro- 
 fession, have also been held exempt as apart of his "family 
 library." {Robinson's Case,^ Abbott's Pr. B. 466.) 
 '^ By a statute passed in 1842, it is further provided as follows: 
 " In addition to the articles now exempt by law from levy and 
 sale updei;' execution, there shall be exempted from such levy 
 (and sale, necessary household furniture and working tools and 
 Hteam owned by any person being a householder, or having a 
 family for which he provides, to the value of not exceeding 
 «»&nundred and fifty dollars; provided that such exemption 
 .shall hot extend to any execution issued on a demand for the 
 /'purchase money of such furniture, or tools, or team, or articles 
 'now enumerated by law." (Laws of 1842, chap. 157.) It has 
 been held that this statute does not affect executions for debts 
 contracted before its passage. (1 Ben. 128, 3 id. 64, 594; 1 
 Corns. 129; but see Morse vs. Goold, 1 Kern. 281.) And it has 
 been recently provided that this act shall' not apply to any 
 judgment rendered for a claim accruing for work and labor 
 performed in a family as a domestic. {Laws of 1858, chapt 
 107.) 
 Under this statute it has been held that whether a given 
 
PROPERTY EXEMPT FROM EXECUTION. 493 
 
 article is necessary household furniture, is a question of fact for 
 a jury, and not one of law, and that the party who claims the 
 exemption must show that the article was necessary, and not 
 merely that it was convenient. (1 Den. 462, supra.) It has 
 -also been held, that a team is two or more horses or oxen har- 
 nessed together; (Davis vs. Prosser, 32 Barb. 290;) that har- 
 ness may, therefore be regarded as exempt, but that a wagon, 
 a cart, or a sleigh cannot be regarded as part of a' team, and 
 are not exempt; {Morse vs. Keyes, 6 How. 18; but see Davis 
 vs. Prosser, 32 Barb. 290;) and that necessary food for a team 
 is not exempt. {Rue vs. Alter, 5 Den. 119.) To entitle a per- 
 son to have his team exempted from levy and sale, he need not 
 have the sole right of property therein. If he is only a part- 
 owner, in common with another, he is within the meaning and 
 object of the statute as much as if he owned the team alone. 
 {Raddiffe vs. Wood, 25 Barb. 52.) 
 
 It has been a controverted point, and is not yet settled by 
 the highest authority, as to the effect to be given to the proviso 
 in the additional exemption act of 1842, above cited: " pro- 
 vided that such exemption shall not extend to any execution 
 issued on a demand for the purchase money of such furniture, 
 or tools, or team, or articles now enumerated by law." In the 
 case of Mathewson vs. Weller, (3 Den. 52,) a pair of horses, the 
 necessary team of a householder, and of less value than $150, 
 had been taken on an execution for the purchase money of a 
 stove sold to their owner; Although in that ca.se it appeared 
 that the stove was sold prior to the passage of the act of 1842, 
 and the Court held that, therefore, that act, not being retro- 
 spective, had no application to the case, and that the property 
 was lawfully taken; yet the Court, while saying that it was 
 unnecessary to examine the question as to the proper construc- 
 tion of the proviso in thfe aq|t of 1842, went on to say, that no 
 exemption, whether claimed under the Revised Statvies, or under 
 the law of 1842, could be set up against an execution on a judg- 
 ment rendered for the. purchase money of any property made 
 exempt by any law, though the particular property in respect 
 to which, the exemptiom might be claimed was paid for. But 
 the question has recently arisen again, in the case of Odle vs. 
 Stevens, (9 Barb. 676; 6 How. 424.) There, necessary beds 
 and bedding, one table, and' ^x chairs, exempt under the 
 
494 NEW YORK JUSTICE. 
 
 Eevised Statutes, the property of a householder, were taken 
 on an execution for the purchase money of a stove, which was 
 also exempt under the Revised Statutes, being the only on6 in 
 use in the family. The Court held, that the beds, bedding, 
 table, and chairs were unlawfully taken; that the proper con- 
 struction of the proviso in the act of 1842 is, that the addi- 
 tional exemption allowed by that act does not extend to execu- 
 tipns issued to collect the purchase money of any exempt 
 property whatever; and that where the exemption claimed is 
 given by the Eevised Statutes, the act of 1842 has no effect 
 upon it. Even under this decision, the team in Mathewson vs. 
 Weller would not have been exempt on the execution on the 
 stove, and the decision in the latter case, so far as it conflicts 
 with the decision in Cole vs. Stevens, must be regarded as being 
 a mere dictum, and as having been overruled. The decision in 
 Cole vs. Stevens seems to be the»sounder one, and more in har- 
 mony with the rules for interpreting statutes. At all events, it 
 must be regarded as the law, until overruled by the Court of 
 Appeals. - 
 
 The exemption of property from execution is a personal privi- 
 lege of which the owner alone can take advantage; and his 
 bailee cannot maintain an action on that ground for property 
 tak^n in execution against the owner. (1 Cow. 114; ^arl vs. 
 Camp, l&Wend. 563.) 
 
 6. Imprisonment on Execution. 
 
 For want of goods and chattels whereon to levy, the consta- 
 ble must, in the cases authorized by law, if the execution re- 
 quires it, take the body of the person against whom the execu- 
 tion has issued, and convey him to the common jail of the city 
 or county, the keeper whereof is required to keep such person 
 in safe custody in jail, until the d%bt, or damages and costs, shall 
 be paid, or he be thence discharged by due course of law. (2 
 B. S. 252, § 151.) 
 
 It is the duty of a/constable to whom an execution is delivered, 
 to search, in all cases, for property, before he takes the body of 
 the defendant. If, without searching or inquiring for property, 
 he, immediately on receiving the execution, arrests the defend- 
 ant, he does it at his peril; and if it be shown that the defend- 
 ant had property in his open and visible possession, which was 
 
IMPRISONMENT ON EXECUTION. 495 
 
 subject to the execution, and might, with reasonable diligence, 
 have been found by the officer, the officer is liable to an action 
 for the arrest. A constable has, in all cases, a reasonable time 
 to search for property, before he is bound to arrest the defendant 
 in an execution; and, if he acts in good faith, he will incur no 
 responsibility in omitting to take the body until such search can 
 be made. If the defendant declares he has no property, the arrest 
 may be made immediately. (Hollister vs. Johnson, 4 Wend. 
 639.) 
 
 If the person so committed to jail has a family in this State, 
 for which he provides, and is not a freeholder, he must be dis- 
 charged after he has remained in prison thirty days; and, if he 
 has no family, and is not a freeholder, he must be discharged 
 after remaining in prison sixty days. (2 R. 8. 252, § 152.) 
 And a defendant in a judgment rendered before a Justice, is 
 entitled to his discharge after an imprisonment of thirty days, 
 if he has a family, and is not a freeholder, although a transcript 
 of the judgment has been filed in the county clerk's office, and 
 the execution whereon he is imprisoned is issued by the county 
 clerk. (^Brooks vs. French, 5 Wend. 568.) 
 
 Before such prisoner can be discharged, he must make and 
 deliver to the sheriff or jailer, an affidavit, taken before a Justice 
 of the Peace, or some other officer authorized to take affidavits 
 stating the facts which, according to the preceding provisions, 
 entitle him to such discharge. (2 R. 8. 252, § 153; Laws of 
 1831, chap. 24.) 
 
 The sheriff or jailer, upon the receipt of such affidavit, must 
 forthwith discharge the pi'isoner from his custody, and must file 
 the affidavit in the office of the clerk of the county, whose duty 
 it is to file the sam'e without fee or reward. (2 R. 8. 252, 
 § 154.) If the sheriff or jailer, upon the receipt of such affi- 
 davit, refuses to discharge such prisoner, he forfeits twenty-five 
 dollars for each day he detains such prisoner, to be recovered, 
 Tyith costs, by the party aggrieved, to his own use, in addition 
 to any damages he may recover for the false imprisonment, {id. 
 § 155.) If the sheriff or jailer is prosecuted by reason of any 
 such discharge, he may plead the general issue, and give in evi- 
 dence such affidavit, or a copy thereof, duly certified by the 
 clerk of the county, under the seal of the County Court, in his 
 full justification and defence, (id. § 156.) 
 
496 NEW YORK JUSTICE. 
 
 Notwithstanding the discharge of the defendant under the 
 foregoing provisions, the judgment on which the execution was 
 issued, remains good against the property of the defendant; and 
 a new execution may be issued thereon against his property, in 
 like manner as if he had not been imprisoned. (2 R. 8. 252, ■§ 157.) 
 
 For various provisions on the subject of arrest in civil process, 
 see ante, chapter 7. 
 
 7. Return of Execution. 
 The constable must return the execution, and pay the debt 
 or damages and costs levied, to the Justice who issued the 
 same, returning the overjDlus, if any, to the person against 
 whom the execution issued, (id. § 149.) 
 
 [For forms oi Return of Execution, see McCau^'s Constable's 
 Guide, p. 189.] 
 
 If a constable neglects to return an execution within five days 
 after the return day thereof, the party in whose favor the same 
 was issued may maintain an action of debt against such constable, 
 and is entitled to recover therein the amount of the execution, 
 with interest from the time of the rendition of the judgment 
 upon which the same was issued; and, if a judgment be ob- 
 tained in such suit against the constable, execution must imme- 
 diately issue thereon. (2 R. 8. 253, § 159.) 
 
 Under the security given by a constable when he enters on 
 the duties of his ofiice, (1 ^d. 346, § 21,) the responsibility of 
 his sureties is co-extensive with his own, and they are liable 
 whenever he is liable, to a party in whose favor an execution 
 has been delivered to him. Such sureties are, therefore, liable 
 for the neglect of the constable to return an execution, even 
 though it does not appear that any mOney has come to his hands 
 under it. {8loan vs. Case, 10 Wenid. 370.) 
 
 Every officer to whom any process is delivered must execute 
 the same according to the command thereof, and must make due 
 return of his proceedings thereon, which return must be signed 
 by him. For any violation of this provision >such officer is liable 
 to an action at the suit of any party aggrieved, for the damages 
 sustained by him, in addition to any other fine, punishment, or 
 proceeding, which may be authorized by law. (2 R. 8. 440, 
 
APPEALS. 497 
 
 § 77.) Where the process is an execution, the damages sustained 
 are presumptively the full amount of the execution; hut the 
 officer may mitigate the amount, by showing that the whole 
 sum could not have been collected by due diligence on his part. 
 But it is no answer to^such an action to show, that the defend- 
 ant in the execution still has abundant property, out of which 
 the judgment may be collected. (6 Hill, 550; 3 Den. 327; 4 
 Sandf. 67; Ledyard vs. Jones, 3 8eld. 550.) 
 
 K moneys are collected by a constable upon an execution, 
 and not paid over by him according to law, an action of assump- 
 sit may be maintained by the party entitled to such money, in 
 his own name, upon the instrument of security, given' by such 
 constable and his sureties, on his entering upon the duties of his 
 office; (1 i2. /S'. 346, §21;) and, in such suit, the amount so 
 -collected, with interest from the time of collection, can be re- 
 covered. Execution can be immediately issued upon the judg- 
 ment in such suit. (2 id. 254, § 163.) 
 
 If any money is collected for any party by a Justice of the 
 Peace, in his official capacity, and he neglects or refuses, within 
 a reasonable time after demand, to pay over the same, such neg- 
 lect or refusal is a misdemeanor, and, on conviction thereof, such 
 iTuBtice forfeits his office, {id. 271, \ 259.) * 
 
 CHAPTER XVIII. 
 
 OF APPEALS. 
 
 The Code repeals all former statutes providing for the review 
 of judgments in civil cases rendeifed by Courts of Justices of the 
 Peace, and provides that the only mode of reviewing such judg- 
 ments shall be an appeal; which lies to the County Court of 
 the county where the judgment was rendered. 
 
 But when a judgment shall have been rendered by the gen- 
 eral term of the Marine Court of the city of New York, or by a 
 Justice of a Justice's Court of that city, the appeal shall be to 
 the Court of Common Pleas for the city and county of New 
 32 
 
498 NEW YORK JUSTICE. 
 
 York. [Code, § 352.) The appeal from ttie general term of 
 the Marine Court, shall be taken within twenty days after judg- 
 ment of such general term. 
 
 The Superior Court of the city of Buffalo, has however, by 
 a late act, exclusive jurisdiction in cases of appeal from a judg- 
 ment rendered by any Justice of the Peace of the city of Buffalo. 
 [Laios of 1860, chap. 616.) 
 
 Any party aggrieved, may appeal in the cases prescribed in 
 the Code. (§ 325.) The party appealing is known as the ap- 
 pellant, and the adverse party as the respondent. But the title 
 of the action must not be changed, in consequence of the appeal. 
 (id. § 326.) 
 
 On such appeal, when the amount of the claim, or claims, for 
 which judgment was demanded by either party in his pleadings 
 in the com-t below shall exceed fifty dollars, or when in an 
 action to recover the possession of personal property, the value 
 of the property as assessed and the damage recovered shall ex- 
 ceed fifty dollars, exclusive of costs, a new trial shall be had in 
 the County Court in the following appellate cases: 
 
 1. When the judgment was rendered upon an issue of law 
 joined between the parties. 
 
 2. When it was rendered upon an issue of fact joined between 
 the parties, whether the defendant was present at the trial or 
 not. 
 
 And when the appeal is to the Superior Court of Buffalo, in 
 ' the cases in which, by the terms of this section, a new trial may 
 be had, such new trial shall be had in th^aid Superior Comt. 
 Provided, however, that the appellant may, in cases where 
 the amount for which judgment is demanded by either pai-ty in 
 his pleadings exceeds fifty dollars, or where, in an action to re- 
 cover the possession, of personal property, the value of the 
 property as assessed and the damages recovered shall exceed 
 fifty dollars exclusive of costs, state in the notice of appeal that 
 such appeal is taken upon questions of law only, in which case 
 a new trial shall not be had in the appellate Court, but the ap- 
 peal shall be heard and determined in the same maimer as if 
 such amount or said value and damages were fifty dollars or 
 under: Provided, however, that in the city and county of New 
 York appeals from the Marine and District Coui-ts shall be taken 
 and heard, and returns made in the same manner as heretofore. 
 
APPEAL, WHEN AND HOW TAKEN. 499 
 
 Any judicial proceeding which if conducted to a termination 
 will result in a judgment, is an action; a proceeding in a Jus- 
 tice's Court under a mechanics' lien law, is an action, and under 
 the Code, an appeal lies from the judgment of the Justice to 
 the County Court. {People ex rel. Bendon vs. The Co. Judge 
 Hens. Co. Id, How. 398.) 
 
 1. Appeal, When and How Taken. 
 
 The appellant must, within twenty days after judgment, serve 
 a notice of appeal, stating the grounds upon which the appeal 
 is founded. If the judgment is rendered up6n process not per- 
 sonally served, and the defendant did not appear, he has tweiity 
 daysj after personal notice of the judgment, to serve the notice 
 of appeal. {Code, % 353.) The notice may be signed by the 
 party, his agent, or attorney; but the appellant must point out 
 specifically, on what point or ground he alleges the judgment to 
 be erroneous. {Williams vs. Cunningham, 2 Sand. 632.) •!£ 
 this is not done the County Court must affirm the judgment. 
 The County Court is confined in hearing the appeal to the 
 grounds which are stated in the notice. And a specification 
 that " the judgment is clearly against the law and the evidence 
 of the case," is not a sufficient statement of any ground of appeal, 
 and does not entitle the appellant to urge objections to the 
 judgment. {Derbg ys. Hannin, 5 Abb. 150; iS.C.15How.d2.) 
 But the Court may give leave to amend the notice. {Irwin vs. 
 Muir, 13 How. 409.) If the amount of the plaintifi''s claim 
 litigated in the Justice's Court was more than fifty doUai's, the 
 appellant having a right to a new trial, the .notice is sufficient. 
 {Fowler vs. Westervelt, 40 Barb. 374.) 
 
 A statement that the judgment should have been for a less 
 amount of damages against the defendant is sufficient to carry- 
 costs if the appellant recover a more favorable judgment. 
 {Loomis vs. Higbie, 29 How. 232.) The notice of appeal must, 
 within the same time, be served on the Justice personally, if 
 living and within the county, or on his clerk, if there be one, ■ 
 and on the respondent, personally, or by leaving it at his resi- 
 dence, with some person of suitable age and discretion; or, in 
 case the respondent is not a resident of such pouiity, or cannot 
 after due diligence be found therein, in the same manner, on the 
 attorney or agent, if any, who is a resident of such county, who 
 
600 NEW YOBK JUSTICE, 
 
 appeared for the respondent on the trial; and if neither tlie 
 respondent nor such agent or attorney can be found in the 
 county, the notice may be served on the respondent by leaving 
 it with the clerk of the Appellaite Court; and the appellant 
 must, at the time of the service of the notice of appeal on the 
 Justice, or on his clerk as herein provided, except in New York 
 city, pay to him the costs of the action included in the judgment, 
 together with two dollars costs of the return, which may be 
 included in the judgment for costs on reversal. In all cases of 
 appeal from the general term of the Marine Court of the city 
 of New York, and from the District Courts of the city of New 
 York to the Court of Common Pleas for the city and county of 
 New York, the appellant shall, at the time of the service of the 
 notice of appeal pay to the clerk of the Marine Court, or to the 
 Justice or clerk of the District Court, two dollars, as costs of 
 the return to such Court of Common Pleas, which costs, so paid, 
 sh*ll be included in the judgment for costs, in case the judgment 
 of the court below shall be reversed; and the appellant shall 
 also execute, on the appeal, a written undertaking on his part, 
 with one or more sufficient sureties, to the effect that the appel- 
 lant will pay all costs, disbursements and extra costs, awarded 
 against him in the court below, if such judgment shall be 
 affirmed by the Appellate Court, on such appeal, together with 
 all costs and dama,ges which may be awarded against him 
 thereon; such sureties to justify in double the amount specified 
 in the undertaking; such undertaking and the sufficiency of the 
 sureties to be approved by the Justice of the comt below, or 
 one of the Judges of the Court of Common Pleas, or the appel- 
 lant may deposit, with the clerk of the Court of Common Pleas, 
 the costs, disbursements, and extra costs, included in the judg- 
 ment in the court below, and the sum of fifteen dollars, to meet 
 any costs that may be awarded against him in such appeal, and 
 such aijpeal from the general term of the Marine Court and the 
 District Court shall be ineffectual, unless, within the time speci- 
 fied for bringing the appeal, the appellant execute such under- 
 taking or make such deposit; the undertakiijg, when executed 
 and approved, to be filed with the clerk of the Court of Com- 
 mon Pleas, the amount so deposited shall be repaid by said 
 clerk, to the appellant, if he succeed on the appeal; and in case 
 the judgment be affii'med, the said clerk shall, after execution 
 
APPEAL, WHEN AND HOW TAKEN. 501 
 
 is issued, pay over the amount so deposited, to tlie respondent, 
 which shall be credited on the execution issued on the judgment 
 of affirmance, to the extent thereof, and the balance, if any, on 
 the execution issued on the judgment appealed from. {Code, 
 § 354.) The notice must be served within the twenty days, 
 both on the Justice and the respondent; otherwise there is no 
 appeal. And a verbal notice is insufficient; it must be in writ- 
 ing. Where there is a failure to serve the notice within the 
 time prescribed, there can be no amendment allowed. The 
 Court has no authority to allow an appeal to be brought after 
 the expiration of the time limited by statute. (5 How. 114, 
 361; 7 id. lOS.) The notice should be stamped. > 
 
 ^ 51. Notice of Appeal. 
 
 Cayuga County, 
 In Justice's Court. 
 
 . , ! Before Horace T. Cook, Esquire, Justice of 
 
 rb 1 Wl I ^^^ Peace of the city of Auburn. 
 
 Judgment rendered for plaintifl", March 1st, 1843,, for $30 
 damages, and $2.50 costs; in all $32.50. 
 
 To James Brown, plaintilf in the above action, and to Horace 
 T. Cook, Esquire, a Justice of the Peace of the city of Auburn: 
 
 Take notice, that I appeal from the judgment in the above 
 action, to the County Court of Cayuga Couuty, and that the fol- 
 lowing are the grounds upon which the appeal is founded: 
 
 1. The plaintiff having proved by Charles Tuttle, a witness 
 sworn on his part, that he had seen a letter purporting to have 
 bfeen written by the defendant, but did not know that the letter 
 was written by him, and that, on comparing the signature to the 
 note sued on and the signature to the letter, he believed they 
 were in the same hand- writing, although he had never seen the 
 defendant write, and no other proof having been given by the 
 plaintiff of the execution of said note, the Justice erred in deny- 
 ing the motion for a nonsuit. 
 
 2. The Justice erred in excluding the testimony of Charles 
 Avery, by whom the defendant offered to jjrove that he had 
 frequently seen the defendant write, and was familiar with his 
 ,hand-writing, and that the signature to the said note was not in 
 the hand- writing of the defendant. 
 
 3. The Justice ei-red in admitting the testimony of Charles 
 Tutllp to prove the signature of the said note, the said Tuttle 
 having testified th;it he iiad never seen the defendant write, and 
 did not knoAV that a letfer purporting to be his was written by 
 
502 ■ NEW YORK JUSTICE. 
 
 him, but that the signatures to the note and letter, were, as he 
 believed, in the same hand-writing. 
 
 4. The Justice erred in charging the Jury that the plaintiff 
 had proved the execution of the said note. 
 
 5. The jury erred in finding a verdict for the plaintiff. 
 
 6. The judgment should have been for less amount of dam- 
 ages against the defendant. 
 
 Dated March 2d, 1853. 
 
 Charles Wilson, Defendant. 
 
 2. Stat of Execution. 
 
 If the appellant desires a stay of execution of the judgment, 
 he must give security, which security must be a written under- 
 taking, executed by one or more sufficient sureties, approved 
 by the County Judge, or by the Court below, .to the effect, that 
 if judgment be rendered against the appellant, and execution 
 thereon be returned unsatisfied in whole or in part, the sureties 
 will pay the amount unsatisfied. {Code, §§ 355, 356.) If the 
 appeal is not followed up by the giving of the undertaking, it 
 will not operate as a stay of any further proceedings which the 
 successful party may elect to pursue, in order to enforce the 
 collection of the judgment. {Conway vs. Hitchins, 9 Barb. 
 378.) 
 
 ^52. Undertaking. 
 Cayuga County, 
 In Justice's Court. 
 
 . 1 Before Horace T. Cook, Esqvdre, a Justice 
 
 rh 1 Wl I '^^ *^® Peace of the city of Auburn. - 
 
 Charles Wilson, the above named defendant, having appealed 
 to the County Court of Cayuga county, from a judgment ren- 
 dered against him on the first day of March, 1853, by Horace 
 T. Cook, Esquire, a Justice of the Peace of the county of Ca- 
 yiiga, for $32.50 damages and costs, in favor of thq above named 
 plaintiff, James Brown: Now, therefore, for the pm'pose of 
 staying the execution of the said judgment, we, James C. Derby 
 and Henry Underwood, as sui-eties, undertake, jointly and sev- 
 erally, that if judgment be gendered against the ^d Charles 
 Wilson, appellant, and execution thereon be returned unsatis- 
 fied in whole or in part, we will pay the amount unsatisfied. 
 
 Witness our hands this 2d day of March, 1853. 
 
 J.4MES C. DeKBT, 
 
 Henrt Ustdekwood. 
 
EETURN TO APPEAL. 503, 
 
 ; This undertaking, before it can be of any avail, must be ap- 
 proved by tlie County Judge, or by the Court below. The 
 approval should be endorsed on the undertaking, and may be 
 in the following form: 
 
 I approve of the within undertaking, and of the sufficiency 
 of the sureties therein. Dated March 2d, 1853. 
 
 Horace T. Cook, Justice of the Peace. 
 
 The delivery of the undertaking to the Court below will stay 
 the issuing of the execution; or if it have been issued, the ser- 
 vice of a copy of the undertaking, certified by the Court below, 
 upon the officer holding the execution, will stay further pro- 
 . ceedings thereon. (Code, § 357.) 
 
 Where, by reason of the death of a Justice of the Peace, or 
 his removal from the county, or any other cause, the under- 
 taking on the appeal cannot be delivered to him, it must be 
 filed with the clerk of the appellate Court, and notice thereof 
 given to the respondent, or his attorney or agent, as provided 
 in section three hundred and fifty-four. It will, thereupon, 
 have the same efiect as if delivered to the Justice, {id. § 358.) 
 
 3. Return to Appeal. 
 The Court below must thereupon, after ten days, and within 
 thirty days after the service of the notice of appeal, make a re- , 
 turn to the appellate Court, of the testimony, proceedings and , 
 judgment, and file the same in the appellate Court, and may be 
 compelled to do so by attachment. But no Justice of the Peace 
 is bound to make a return, unless his fee of two dollars for 
 making his return is paid on service of the notice of appeal; 
 provided, however, that, in cases where the amount for which 
 judgment is demanded by either party in his pleadings in the 
 Coi>rt below exceeds fifty dollars, or where the value of the 
 property recovered as appears from the verdict or judgment 
 shall exceed fifty dollars, the testimony need not be returned^ 
 but, in such case, the Court below shall return the process by 
 which the action was commenced, with the proof of service 
 thereof and the pleadings or copies thereof, the ptoceedings 
 and judgment, together with a brief statement of the amount 
 and- nature, of .'the. claim or claims litigated by_ the respective 
 
504 NJIW YORK JUSTICE. 
 
 parties, and in all cases the notice of appeal shall be annexed to 
 the return. (Code, ^ 360.) 
 
 When a Justice of the Peace, by whom a judgment appealed 
 from was rendered, has gone out of office before a return is 
 ordered, he must, nevertheless, make a retur^, in the same 
 manner, and with the like effect, as if he were still in office; {id. 
 \ 361. If he has removed to another county within the State, 
 the appellate Court may compel him to make the return, as if 
 he were still within the county where ■ the judgment was ren- 
 dered, (id. \ 363.) 
 
 If the return is defective,, the appellate Court may direct a 
 further or amended return, as often as may be. necessary, "and 
 may compel a compliance with its order, by attachment, {id. 
 \ 362,) and the Court is always deemed open for these purposes. 
 
 ^ 53. Justices Return. 
 
 To the County Court of Cayuga Comity: 
 
 In pursuance of the notice of appeal hereto annexed, which 
 was served on me on the second day of March, 1853, and in 
 obedience to the requirements of section three hundred and sixty 
 of the Code, I, Horace T. Cook, a Justice of the Peace of the 
 city of Auburn in said county, hereby certify and return to the 
 said Court, that, on the 20th day of February, -1853, I issued a 
 summons in an action in which James Brown was plaintiff, 
 and Charles Wilson defendant, returnable on the 28th day of 
 ^February last, at two o'clock P. M. at my office in the said city 
 of Auburn. - The summons was retume<J personally served on 
 the 21st day of February last, by Stephen Austin, constable, 
 as appears by his return duly endorsed thereon. On the said 
 28th day of February, at the time and place above mentioned, 
 the parties appeared, the plaintiff in person, and the defendant 
 by his attorney, James E. Cox, and joined issue. The plaintiff 
 complained on a promissory note executed by the defendant 
 on the first day of January, 1853, for $30, paj'^able to James 
 Smith or bearer in thirty days from date. The defendant 
 answered the complaint by denying the execution of the note. 
 Issue b^ing thus joined, the cause was adjourned, by consent 
 of the parties, to the first day of March instant, at two o'clock 
 P. M. at my office. 
 
 At the time and place last mentioned the parties appeared in 
 person, and, at the reqtiest of the defendant, I issued a ventre 
 i^etumable forthwith, and the constable to whom the venire was 
 delivered, returned the same, with the li.st of jurors who had 
 
PEOCEEDINQS IN APPELLATE COURT. 505 
 
 been summoned thereto annexed. All the jurors so summoned 
 appeared, and the following were duly drawn and sworn as 
 jurors to try the action. [Here insert the jurors' names.] 
 
 On the trial, the plaintiff called Charles Tuttle as a witness, 
 who, being duly sworn, testified, that he had never seen the 
 defendant write, that he had seen a letter which purported to 
 have been written by the defendant, but did not know that it 
 was "written by him, except from information, and that, on 
 comparing the signature to the note produced, which was the 
 note sued on, with the signature to the letter, he believed they 
 were in the same hand-writing. The plaintifi" here rested, and 
 the defendant moved for a nonsuit, on the ground that the exe- 
 cution of the note had not been proved. I denied the motion. 
 
 The defendant then called Charles Avery as a witness, and 
 offered to prove by him, that he had frequently seen the 
 defendant write, and was familiar with his hand-writing, and 
 that the signature to the note was not in the hand-writing of 
 the defendant. I excluded the testimony offered to be given 
 by this witness. 
 
 No other testimony was given on the trial, and I then charged 
 the jury that the execution of the note was sufficiently proved. 
 The cause was then submitted to the jury, who retired under 
 the charge of a constable duly sworn, and, after deliberating 
 upon their verdict, returned, and, being called by me, severally 
 answered to their names, and the plaintiff being then called, 
 and answering, thfe jury delivered their verdict in open Court, in 
 favor of the plaintiff, for thirty dollars damages, and I entered 
 it in my docket on the first day of March, 1853, and imme- 
 diately, and on the same day, rendered a judgment for the 
 plaintiff against the defendant, for $30.00 damages and $2.50 
 costs. 
 
 I also certify, that when the notiee of appeal before referred 
 to was served upon me, the above costs, included in the said 
 judgment, namely, $2.50, and two dollars costs of this return, 
 were paid to me by the said defendant. 
 
 Dated Auburn, March 15th, 1853. 
 
 Horace T. Cook, Justice. 
 
 4. Peoceedings in Appellate Court. 
 
 When a party gives in good faith notice of appeal from a 
 judgment, and omits, through mistake, to do any other act 
 necessary to perfect the appeal or to stay proceedings, the 
 appellate Court may permit an amendment on such terms, as 
 Uiay he just. {Code., § 327.) 
 
506 NEW YORK JUSTICE. 
 
 If a Justice of the Peace, whose judgment is appealed from, 
 dies, becomes insane, or removes from the State, the appellate 
 Court may examine witnesses, on oath, to the facts and circum- 
 stances of the trial or judgment, and determine the appeal,- as 
 if the facts had been returned by the Justice. {Code, 363.) 
 
 If a return be made, and the appeal is from a judgment 
 where a new trial may not be had, the appeal may be brought 
 to a hearing at a general term of the appellate Court, upon a 
 notice by either party of not less than eight days. It must be 
 placed upon the calendar, and it continues thereon without fur- 
 ther notice, until finally disposed of; but if neither party brings 
 it to a hearing before the end of the second term, the Court 
 must dismiss the appeal, unless it continues the same, by spe- 
 cial order, for cause shown. If the appeal is from a judgment 
 where a new trial may be had, it may be brought to a hearing 
 or trial at any term of the County Court at which a petit jury 
 shall be summoned to attend, upon the same notice as provided 
 for actions in the Supreme Court. At least eight days before the 
 Court, the party desiring to bring on the 'appeal shall serve a 
 note of issue on the clerk, and the clerk shall thereupon enter 
 the cause on the calendar according to the date of the return. 
 And this provision applies as well to appeals heretofore taken 
 and now pending, as those hereafter to be brought, {id. 364.) 
 The judgment will be reversed by default, if the respondent 
 does not appear to argue the appeal.' {Whitney vs. Bayard, 
 2 8andf. 634.) 
 
 The appeal must be heard on the original papers; and no 
 copy thereof need be furnished for the use of the Court. {Code, 
 \ 365.) And the Court can only look to the return of the Jus- 
 tice for the facts of the case. {De Courcy vs. Spalding, 3 Code 
 Bep. 16.) 
 
 Upon the hearing of the appeal, the appellate Court must 
 give judgment according to the justice of the case, without 
 regard to technical errors and defects which do not affect the 
 merits. In giving judgment, the Court may affii-m or reverse 
 the judgment of the Court below, in whole or in part, and as 
 to any or all the parties, and for errors of law or fact. If the 
 appeal is founded on an error in fact in the proceedings, not 
 affecting the merits of the action, and not within the know- 
 ledge of the Justice, the Court may determine the alleged.. 
 
PROCEEDINGS IN APPELLATE COURT. 507 
 
 error in fact on affidavits, and may in his discretion inquire into 
 and determine the same upon examination of the witnesses. If 
 the defendant failed to appear before the Justice, and it is shown 
 by the affidavits sei"ved by the appellant, or otherwise, that mani- 
 fest injustice has been done, and the defendant satisfactorily 
 excuses his default, the Court may in its discretion set aside or 
 suspend judgment, and order a new trial before the same or any 
 other Justice in the same county, at such time and place, and on 
 such terms, as the Court may deem proper. Where a new trial 
 shall be ordered before a Justice, the parties must appear before 
 the Justice according to the order of the Court, and the same 
 proceedings must thereupon be had in the action, as on the 
 return of a summons personally served. 
 
 K the appeal shall be from a judgment in which a new trial 
 may be had, as in this chapter provided, the Court shall proceed 
 to the hearing of the cause, if the issue joined before the Jus- 
 tice was an issue of law, or to the trial thereof by a jury, if such 
 issue was upon a question of fact. 
 
 1. If the issue joined before the Justice was an issue of law, 
 the Court shall render judgment thereon according to the law 
 of the case; and if such judgment be against the pleadings of 
 either party, an amendment of such pleading may be allowed on 
 the same terms and in like cases as pleadings in actions in the 
 Supreme Court, and the Court may thereupon require the oppo- 
 site party to answer such amended pleading or join issue there- 
 on, as the case may require, summarily. 
 
 2. If, upon an appeal in an issue of law, the Court should 
 adjudge the pleading complained of to be valid, it shall in like 
 manner require the opposite party summarily to answer such 
 pleading or join issue thereon, as the case may require. 
 
 3. Upon an issue of fact being so joined, the Coui-t shall pro- 
 ceed to hear the same tried by a jury in the same manner as is- 
 sues joined in the Supreme Court. 
 
 4. Every issue of fact so joined or brought up on appeal shall 
 be tried in the same manner as in actions commenced in the 
 Supreme Court. 
 
 5. The Court shall have the same power over its own deter- 
 minations, and the verdict of the jury, and shall render judg- 
 ment thereon in the same manner as the Supreme Court in 
 actiong pending therein, and may allbw either pai'ty to amend 
 
508 NEW YORK JUSTICE. 
 
 his pleadings upoja such terms as shall be just in cases where a 
 new trial may be had, as in this chapter provided; and in any 
 such appeal on which a new trial is to be had, either party may, 
 at any time before trial, serve upon the opposite party an offer, 
 in writing, to allow judgment to be taken against him for the 
 sum or property, or to the effect in such offer specified, and with 
 or without costs, as said offer shall specify. If the party receiv- 
 ing such offer accept the same, and give notice thereof in writ- 
 ing within ten, days, he may file the return and offer, with an 
 affidavit of service of notice of acceptance thereof, and the clerk 
 shall thereupon enter judgnaent according to said offer. And if 
 the party making such offer shall have given an undertaking upon 
 the appeal, the parties executing such undertaking shall be liable 
 thereon for the payment of the judgment entered by virtue of 
 said offer. If the notice of acceptance be not given, the offer 
 is to be deemed withdrawn, and cannot be given in evidence. 
 And, if the party to whom such offer is made fell to ob;tain a 
 judgment more favorable to him than that specified in Said offer, 
 then he shall not recover costs, but must pay the other party's 
 costs from the date of the service of the offer. 
 
 6. Either party may move for a new trial in said Court on a 
 case or exceptions, or otherwise, and such motion may be made 
 before or after judgment has been entered; and the provisions 
 of this act in relation to the proceedings on receiving the ver- 
 dict of a jury, exceptions to the decisions of the Court, making 
 and settling case and exceptions, motions- for new trials, and 
 making up the judgment roll in the Supreme Court, are hereby 
 made applicable to all appeals brought up for trial from the 
 Justice's Court. {Oode, § 366.) 
 
 Although the appellate Court will not reverse the judgment 
 
 1 below, if the evidence merely preponderates against it, yet a 
 
 material defect of proof is fatal. (5 Barb. 283; 2 Sandf. 222; 
 
 Adsit vs. Wilson, 7 How. 64.) So, too, a Justice's judgment 
 
 will be reversed, where the return of the Justice does not con- 
 
 [ tain any legal evidence to suppout it. {id. 113.) 
 
 To every judgment upon an appeal there shall be aimexed 
 the return on which it was heard, the notice of appeal, with any 
 offer, verdict, decision of the court, exceptions, case, and all 
 orders and jpapei'S in any way involving the merits and necessa- 
 
COSTS AND FEES ON APPEAL. 509 
 
 ,_ . j . . ' 
 
 rily affecting the judgment, which shall be filed with the clerk of 
 the court, and shall constitute the judgment roll. {Code, § 367.) 
 
 If the judgment is affirmed, costs must be awarded to the 
 respondent. If it is reversed, costs must be a^yarded to the 
 appellant. If it is affirmed in part, the costs, or such part as to 
 the Court shall seem just, may be awarded to either party. 
 (id. § 368.) 
 
 If the judgment below, or any part thereof, is paid or col- 
 lected, and the judgment is afterwards reversed, the appellate 
 Court must order the amount paid or collected to be restored, 
 with interest from the time of collection. The order may be 
 obtained upon proof of the facts, made at or after the hearing, 
 upon a previous notice of six days, and if the order is made 
 before judgment entered, the amount may be included in the 
 judgment, (id. 369.) 
 
 If, upon an appeal, a recovery is had by one party, and costs 
 are awarded to the other, the appellate Court must set off the 
 one against the other, and render judgment for the balance. 
 (id. ^ 370.) 
 
 5. Costs and Fees on Appeals. 
 
 The following costs and fees, and no others, except fees of offi- 
 cers and disbursements, are allowed on appeals: (id. § 371:) 
 
 Costs shall be allowed to the prevailing party in judgments 
 rendered on appeal in all cases, with the following exceptions 
 and limitations: In the notice of appeal, the appellant shall state 
 in what particular or particulars he claims the judgment should 
 have been more favorable to him. Within fifteen days after the 
 service of the notice of appeal, the respondent may serve upon 
 the appellant and Justice an offer, in writing, to allow the judg- 
 ment to be corrected in any of the particulars mentioned in the 
 aotice of appeal. The appellant may, thereupon, and within 
 five days thereafter, file with the Justice a written acceptance 
 of such offer, who shall, thereupon, make a minute thereof in 
 his docket, and correct such jitdgment accordingly, and the same 
 so corrected shall stand as his judgment and be enforced accord- 
 ingly; and any execution which has been issued upon the judg- 
 ment appealed from shall be amended by the Justice to corres- 
 pond with the amended judgment; and no undertaking given to 
 stay execution shall be enforced for more than the amount of 
 
510 NEW YORK JUSTICE, 
 
 the corrected judgment. If such offer be not made, and the 
 judgment in the county court be more favorable to the appel- 
 lant than the judgment in the Court below, or if euch offer be 
 made and not accepted, and the judgment of the appellate 
 Court be more favorable to the appellant than the offer of the 
 i-espondent, the appellant shall recover costs. If the offer be 
 made and accepted by the appellant, the appellant shall recover 
 all his disbursements on appeal, and all his costs in the court 
 below. But the appellant shall not recover costs except as pro- 
 vided in this chapter. The respondent shall be entitled to 
 recover costs where the appellant is not. 
 
 Whenever costs are awarded to the appellant he shall be 
 allowed to tax as part thereof the costs and fees paid to the 
 Justice on maldng the appeal as disbursements, in addition to 
 the costs in the appellate Court; and when the judgment in the 
 suit before the Justice was against such appellant, he shall fur- 
 ther be allowed to tax the costs incurred by him, which he 
 would have been entitled to recover in case the judgment below 
 had been rendered in his favor. 
 
 If, upon an appeal, a recovery for any debt or damages be 
 had by one party, and costs be awarded to the other^party, the 
 Court shall set off such costs against such debt or damages, and 
 render judgment for the balance. 
 
 The following fees amd costs, and no other except fees of offi- 
 cers, disbursements and witnesses' fees, shall be allowed on 
 appeals to the party entitled to costs as herein provided, when 
 the new trial is in the County Court: ^ 
 
 ' For proceedings before notice of trial, ten dollars. 
 
 For all subsequent proceedings before trial, seven dollars. 
 
 For trial of an issue of law, ten dollars. 
 
 For every trial of an issue of fact, fifteen dollars. 
 
 For argument of a motion for a new trial on a case or bill of 
 exceptions, ten dollars. 
 
 In all cases, to either party, for every term not exceeding 
 five, at which the appeal is necessarily on the calendar, and is 
 not tried or is not postponed by the court, seven dollars. 
 
 In other appeals the costs shall be as follows: To the appel- 
 lant on reversal, fifteen dollars; to the respondent on aflSrm-, 
 ance, twelve dollars. If the judgment appealed from be reversed 
 in part" and affirmed as to the residue, the amount of costs al- 
 
COSTS AND FEES ON APPEAL. 511 
 
 lowed to eitker party shall be such sum as the appellate Court 
 may award, not exceeding tQ,n dollars. If the appeal be dis- 
 missed for want of prosecution, as provided by section three 
 hundred and sixty-four, no costs shall be allowed to either party. 
 In every appeal, the Justice of the Peace before whom the judg- 
 ment appealed from was gendered, shall receive two dollars for 
 his return. If the judgment be reversed for an error of fact in 
 the proceedings not affecting the merits, costs shall be in the 
 discretioia of the Court. 
 
 If in the notice of appeal the appellant shall not state in what 
 particular or particulars h6 claims the judgment should have 
 been made more favorable to him, he shall not be entitled to 
 costs unless the judgment appealed from be wholly reversed. 
 
 Where the plaintiff recovered judgment for one hundred 
 and forty dollars, the defendant appealed and claimed that 
 judgment should have been in his favor. On a ucav ti'ial in 
 the County Court, plaintiff recovered sixty-eight dollars and 
 fifty-nine cents: held that the plaintiff was entitled to costs of 
 appeal (Wynkooji vs. Holbert, 26 How. 158), and when the 
 plaintiff recovered judgment for one hundred fifty-nine dollars 
 and fifty cents, defendant appealed and stated that judgment at 
 most should have been only five dollars; the plaintiff did not 
 offer to allow the judgment to be corrected, and on a new trial 
 in the County Court recovered judgment for one hundred and 
 thirty dollars: held that defendant was entitled to costs. {Fox 
 vs. JVeUts, 25 How. 144.) 
 
 The costs to the appellant, on a new trial, do not depend 
 solely on the fact that he has recovered'a more favorable judg- 
 ment, but on the fact whether his notice of appeal was suffi- 
 cient. {Forsyth vs. Ferguson, 27 How. 67.) 
 
PART II. 
 
 OF THE CRIMINAL JURISDICTION OF JUSTICES OF 
 THE PEACE. 
 
 33 
 
PART II. 
 
 OF THE CRIMINAL JURISDICTION OF JUSTICES OF THE PEACE. 
 
 CHAPTER I. 
 
 OF CEIMES IN GENERAL. 
 
 Crime, in its more general meaning, signifies the violation of 
 law; or it may be defined as an act committed or omitted in 
 violation of public law, either forbidding or commanding it. 
 As defined by the Revised Statutes {Vol. II. p. 702) it shall be 
 construed to mean any ofience for which any criminal punish- 
 ment may by law be inflicted. The term infamous a-im^ is 
 construed as including every offence punishable with death, or 
 by imprisonment in a State prison, and no other, {id.) . 
 
 Crimes, both by the common law and by statute, are divided 
 vaio felonies and misdemeanors. 
 
 A felony is an act or an offence for which the offender, on 
 conviction, shall be liable by law to be punished by death, or 
 by imprisonment in a State prison. (2 R. 8. 702.) But the 
 term felonious is synonymous with the word criminal, and the 
 term feloniously is synonymous in meaning with the word crimi- 
 nally, {id.) 
 
 A misdemeanor is any crime less than a felony; and the terms 
 "felony" and "misdemeanor" are generally used in contradis- 
 tinction to each other. If the offence, therefore, is not punish- 
 able in any evfent by imprisonment in the State prison, or by 
 death, it is a misdemeanor. {Barb. Orim. Law, 20.) 
 
 Felonies.^ In order to determine whether any given offence 
 oe a felony or not, we are only to inquire what grade of pun- 
 
516 NEW YORK JUSTICE. 
 
 ishment is affixed to it. Such crimes as are punishable with 
 death or with imprisoument absolutely, as we have seen, are 
 clearly felonies. There are , many cases in which the punish- 
 ment, to a certain extent, is confided to the discretion of the 
 Court pronouncing sentence; but, inasmuch as in all these cases 
 the offender is liable to punishment by imprisonment in the 
 State prison, the offence is as distinctly a felony as though the 
 Court had no discretion, and the punishment were imprison- 
 rnejit in the State prison only. {Peojple vs. Van Steenburgh, 1 
 Park Or. 39.) 
 
 Felonies are of two kinds: 1st. At common law, and 2d. By 
 statute. 
 
 Felonies, in England, comprised originally every species of 
 crime which occasioned the forfeiture of lands and goods. At 
 common law, in addition to the crimes more strictly coming 
 under the head of treason, the chief, if not the only felonies, 
 were murder, manslaughter, arson, burglary, robbery, rape, 
 sodomy, mayhem and larceny. (Whar. Crim. Law, (^2.) "With 
 a few exceptions, the statutes preserve the same classification as 
 the common law — the principal felonies being received as they 
 originally existed, and their number increased or diminished as 
 the exigencies of society prompted. 
 
 The capital crimes defined by our statute are treason against 
 the people of this State, jnurder, and arson in the first degree. 
 (2 JR. 8. 656.) Some of the other felonies defined and punish- 
 able by statute are manslaughter, rape, maiming, kidnapping, 
 seduction, compelling a woman to marry, abduction for prosti- 
 tution, decoying children, abandoning children, assaults with 
 deadly weapons, assaults to commit felonies, administering poi- 
 sons, burglary, forgery, falsely personating another, cheats, rob- 
 bery, embezzlement, larceny, counterfeiting, having in posses- 
 sion countefeit bills, instruments or coins, perjury and suborn- 
 ation of perjury, bribery and corrupting jurors and others, 
 escaping from prisons and assisting in escapes, duelling and 
 challenges to fight, iinlawful marriages, incest, offen'ces against 
 public decency, and malicious mischief. 
 
 An offence can never be made felony by the construction of 
 any doubtful and ambiguous words of a statute; and a new 
 felony created by statute has all the incidents it would have at 
 common law. Therefore the procurers or abettors are princi- 
 
PERSONS CAPABLE OP COMMITTING CRIME. 517 
 
 pals or accessories upon the same circumstances which would 
 make them so at common law, though the act be silent as as to 
 abettors or accessories. [Barb. Grim. Law, 20.) 
 
 Misdemeanors comprise all offences lower than felbnies, w'hich 
 may be the subject of indictment. They are divided into two 
 classes — first, such as are mala in se, or penal at common law; 
 and secondly, such as are mala prohibita, or penal by statute. 
 Whatever mischieviously affects the person or property of 
 another, or openly outrages decency, or disturbs jDublic order, 
 or is injurious to public morals, or is a breach of official duty, 
 when done corruptly, is the subject of indictment. {Whar. 
 Grim,. Law., \ 3.) 
 
 Misdemeanors which are mala prohibita, and which become 
 penal by statute, are of two sorts: first, those which consist in 
 t-he commission or omission of any act enjoined or forbidden by 
 statute, though by such statute such omission or commission is 
 not made the subject of indictment; and secondly, those which 
 consist of the omission or commission of any act which by itself 
 is made specifically indictable. Wherever a statute creates an 
 offence, and expressly provides a punishment, the statutory pro- 
 visions must be followed strictly and expressly, and where a 
 statute attaches a new penalty to that which was an offence at 
 common law, either the remedy by statute or that at common 
 law can be pursued. If a statute specify a mode of proceeding 
 different from that by indictment, then, if the matter wei'e 
 already an indictable offence at common law, and the statute 
 introduced merely a different mode of prosecution and punish- 
 ment, the remedy is cumulative, and the prosecution has still 
 the option of proceeding by indictment at common laAv, or by 
 the mode pointed out by the statute. {WJiar. Grim. Law, § 10.) 
 
 Of Persons Capable of Committing Crime. 
 In order to determine what persons are or are not capable of 
 committins: crimes, we are to examine who are and who are not 
 exempted from the censures of the law upon commission of 
 those acts which in other persons would be siu'ely punished, 
 in the- process of which examination we must have recourse to 
 particular and special exceptions; for the general rule is, that 
 no person shall be excused from punishment for disobedience 
 to "the laws of his country, excepting such as are expressly 
 
518 NEW YORK JUSTICE. 
 
 defined and exempted by the laws themselves. (4 Blacks-- Cemm. 
 cliap. 2.) 
 
 The first exemption which we shall notice is that of infancy. 
 An infant is a person under twenty-one years of age. Infants 
 above the age of discretion, which in general is fourteen years, 
 are presumed capable of discerning good from evil, and are, 
 with respect to their criminal actions, subject to the same 
 rules of construction, and the same modes of prosecution and 
 punishment, as others of mature age. (4 Blacks. Oomm. 22.) 
 In some misdemeanors, an infant is privileged, by reason of his 
 non-age, even though he be over fourteen years of age; and 
 partieularly in those instances where the ofience charged is a 
 mere non-feasance, as not repairing a bridge or a highway, and 
 other similar offences. In these cases he had not the command 
 of his own fortune till twenty, and therefore wanted the capa- 
 city to do those things which the law requires, and his laches 
 shall not be imputed to him. {id.) 
 
 Infants between seven and fourteen years of age are within 
 the age of possible discretion, during which they may or may 
 not be guilty of crime, according to their natural capacity or 
 incapacity. For the capacity of doing ill or contracting guilt 
 is measured by the strength of the delinquent's understanding 
 rather than by years and days. One lad of eleven years may 
 have as much cunning as another of fourteen, and in these 
 cases the maxim is, that malice supplies age. Thus, a girl of 
 thirteen was executed for Idlling her mistress; and one boy of 
 ten and another of nine years old, who had killed their com- 
 panions, have been sentenced to death, and he of ten years 
 actually hanged; because it appeared on their trials that one 
 hid himself, and the other hid the body he had killed, which 
 hiding manifested a consciousness of guilt and a discretion to 
 discern between good and evil. (4 Blacks. Oomm. 24.) > 
 
 Insanity. The grounds of exemption from punishment on 
 account of insanity are usually considered under three heads: 
 1. Idiocy; 2. Adventitious insanity; 3. Voluntary or acquired 
 insanity. 
 
 1. An idiot is a fool, or madman, from his birth; one who 
 never has any rational or lucid intervals. A man who is deaf 
 and dumb from his birth, is by presumption of law an idiot. 
 But in late y6ajs so much attention has been paid to the 
 
PERSONS CAPABLE OF COMMITTING CRIME. 519 
 
 instruction of the deaf and dumb, that many of them are as 
 capable of judging between right and wrong as most of those 
 who are not deaf and dumb; hence if it can be shown that he 
 ' has the use of his understanding, he may be tried, and suffer 
 judgment and execution. (1 Suss, on Or. 7; Barb. Crim. 
 Lav), 264.) 
 
 2. Adventitious insanity proceeds from various causes, and 
 is of several kinds and degrees. It may be partial, as mono- 
 mania, or total, or permanent, or tempbrary. 
 
 3. Voluntary or acquired insanity consists in a temporary 
 frenzy or deprivation of reason, produced by drunkenness or 
 by the indulgence of violent passions. 
 
 When the deprivation of understanding and memory is total, 
 fixed, and permanent, it excuses all acts. When the insanity is 
 temporary, and the crime is committed during the frenzy and 
 connected with it, he is entitled to the same indulgence as one 
 whose disorder is fixed and permanent. {Barb. Crim. Law, 
 264; People vs. Sprague, 2 Park. Or. 43.) 
 
 Drunkenness brought on by wrongful indulgence, no matter 
 how great the deprivation of reason, will not exempt from 
 punishment; (People vs. Willey, 2 Park. Gr. 19; Qoke Litt. 
 247;) but when intoxication ceases, if insanity follows as a 
 consequence of the vice, he is, in the eye of criminal justice, 
 no longer amenable for his act. {id. 268; People vs. Robin- 
 son, 2 Park. Or. 235.) 
 
 Another species of exemption from punishment is ignorance 
 or mistake. And this ignorance or mistake must be with refer 
 ence to a question of fact and not of law; for ignorance of the 
 law will not excuse any person of capacity enough to be 
 responsible for his criminal acts, for all are presumed to know 
 the law. But if a man intending to kill a thief or housebreaker 
 in his own house, by mistake kills one of his own family, this 
 is no criminal action. (4 Blacks. Comm. 27.) 
 
 The next species of exemption that we notice, arises from 
 compulsion and inevitable necessity. The obligation of civil 
 subjection is where the inferior is constrained by the superior 
 to act contrary to what his own reason and inclination would 
 suggest; as when a legislator establishes iniquity by a law, 
 and- commands the subject to do an act contrary to. religion and 
 soun4 morality. (4 Blacks^ Oomm. 3^.)- 'B\xt this civil sub- 
 
620 NEW YOKK JUSTICE. 
 
 jection does not extend to a servant or chiffl, as neither of 
 them would be exempt under the pretence of an order from 
 their master or parent. 
 
 In some cases the command or authority of the husband 
 excuses the wife; as, if a woman commit theft, burglary, or 
 other civil offence against the laws of society, by the coercion 
 of her husband, or in his company, she is not guilty of any 
 crime, being considered as acting by compulsion of her ius- 
 band and not of her own will. (4 Blacks. Comm. 28.) But 
 if she commit a crime of her own volimtary act, or by the 
 command of her husband in his absence, she is punishable as 
 much as if she were sole. ( Whar. Grim. Law, \ 7.) 
 
 If the wife live apart from her husband she may be indicted 
 alone and punished; (Gom. vs. Lewis, 1 Met. 151;) so she may 
 be indicted with her husband and punished for keeping a house 
 of ill-fame; {State vs. Bentz, 11 Mo. 27;) and she may be ia- 
 dicted for keeping a gaming house. {R. vs. Dixon, 10 Mod. 
 335.) And she will be punished if she commit an act highly 
 heinous by the compulsion of her husband, as for murder, 
 (4 Blacks. Oomm. 29,) manslaughter, {Holers P. O. 47,) and 
 treason and robbery, {Arch. Or. PI. 16.) 
 
 CHAPTER II. 
 
 OF THE CRIMINAL JUEISDICTION OF JUSTICES OF 
 THE PEACE GENERALLY. 
 
 It was mentioned in the commencement of this work, {Ante, 
 p. 1,) that the jurisdiction of Justices of the Peace in this State 
 is two-fold, civil and criminal, and that, in the larger towns and 
 cities, their authority is divided, the civil jurisdiction being 
 exercised by Justices of the Peace, and the criminal jurisdiction 
 by Police Justices. The jurisdiction of the Police Justices in 
 the several cities and villages, so nearly resemble that of the 
 Justices of the Peace when acting with reference to criminal 
 proofcedings, that it will not be necessary for us to refer to tiie 
 
GENERAL POWERS. 521 
 
 gtoeral statutes under which the several Police Justices are 
 elected or appointed, but we will proceed at once to the con- 
 sideration of offences cognisable by Justices of the Peace gen- 
 erally. 
 
 1. General Powers. 
 
 Originally, Justices, as we have seen, {Ante, p. 1,) were Con- 
 servators of the Peace, and they were called Guardians, Wardens, 
 or Keepers of the Peace. The statute of 34 Edward HI., chap- 
 ter 1, gave these Conservators the power of trying felonies, and 
 they then acquired the more dignified and honorable appellation 
 of Justices. (1 Blacks. Com. 351,) 
 
 The laws of New York confer upon Justices of the Peace both 
 (iivil and criminal jurisdiction. They must reside in the town 
 for which they were chosen, and a removal therefrom forfeits 
 theii- office. (1 JR. 8. 102, § 12; Oumsey vs. Lovell, 9 Wend. 
 319, 322.) Their civil jurisdiction is limited, with certain 
 exceptions, to the town for which they were chosen, but their 
 criminal jurisdiction is co-extensive with the boundaries of the 
 counties in which they reside, (id.) But a Justice, although 
 possessing unlimited criminal jurisdiction in his own county, 
 cannot exercise that jurisdiction without the bounds of his 
 county. His warrant, even, is of no effect in a foreign county, 
 unless it be properly endorsed; (2 R. 8. 707, § 5;) and it is 
 presumed that no Justice has the right to migrate from his own 
 to a foreign county, and there receive complaints and issue 
 warrants for the apprehension of criminal offenders. This 
 point, however, is perhaps not to be regarded as settled, for it 
 has been remarked by an able writer on criminal; jurisdiction 
 that, so far as the nature of the offence is concerned, the juris- 
 diction of a Justice, for the purpose of receiving complaints 
 and issuing wprants to apprehend offenders, is without limit. 
 {Bafh. Orim. Law, 485.) But, within his own county, it is his 
 right, both at common law, (4 Blacks. Gomm. 290,) and by 
 statute, (2 B,l 8. 706, § 3,) to issue his warrant for the arrest of 
 any offender. And, if the offence was committed in his own 
 county, and the criminal has escaped, it is, nevertheless, the 
 right and duty of the Justice to issue process for his arrest, 
 (ed §^ 1- to 5.) -- 
 
 In-.England, if a criminal, escaping from the county in which 
 
522 NEW TOBK JUSTICE. 
 
 his offence was committed, come into another county, a warrant 
 for his arrest may b,e issued in the county where he may be 
 found: (Ohiity's Orim. Law, 34; 1 HaU's P. C. 580.) In our 
 own State, this last point has not been so strongly asserted. It 
 was remarked by Mr. Justice Bronson, in The People vs. 
 JSfevins, 1 Hill, 164, that possibly a Justice might issue process 
 when the offender was in his county, although the crime was 
 committed elsewhere; but the Court said they were inclined to 
 a different opinion, and that it was not then necessary to settle 
 the question. 
 
 In the Supreme Court of* the United States, in the case of 
 Holmes vs. Jennison, 14 Peters, 540, the question whether a 
 State can deliver up an individual found within its territory to 
 a foreign government to be there tried for offences alleged to 
 have been committed against the latter, received a most search- 
 ing and deliberate investigation, and a majority of the Court 
 decided adversely to the exercise of such a power. In that 
 case, the prisoner was the subject of a foreign power, and had 
 fled into the State of Vermont from Canada, where he had been 
 indicted for murder. He was arrested by a warrant issued by 
 the Governor of Vermont. A habeas corpus, to inquire into the 
 cause of his detention, was issued, upon the return of which the 
 Supreme Court of Vermont decided that the warrant was a good 
 and sufficient cause in law for the detention and imprisonment 
 of the prisoner. A writ of error was taken to the Supreme 
 Court of the United States, which was dismissed in consequence 
 of an equal division of the judges. The prisoner sued out 
 another writ of habeas corpus, returnable before the Supreme 
 Court of Vennont, upon which he was discharged. The judges 
 of that Court were satisfied, after an examination of the opinions 
 of the Justices of the Federal Com-t, that the power claimed to 
 deliver up the prisoner did not exist. (14 Peters, 598 note; 1 
 Brockenb. 493.) A similar decision was arrived at in Penn- 
 sylvania. (10 Sergeant & Rawle, 125.) These decisions indi- 
 cate the duty of a magistrate when a complaint is made before 
 him against a subject of a foreign country for an offence against 
 the laws of that coimtry. ' He has no power to entertain the 
 complaint, except in a case where such power may be specially 
 conferred upon him by law in regard to fugitives from justice 
 
GENERAL POWERS. 523 
 
 from a, country between which and the United States a treaty 
 of extradition exists. There is at present iio such case. 
 
 The Constitution of the United States provides, that a person 
 charged in any State with treason, felony, or otlier crime, who 
 shall flee from justice, and be found in another^State, shall, on 
 demand of the executive authority of the State from which he 
 fled, be delivered up, to be removed to the State having juris- 
 diction of the crime. {Constitution U. 8: art. iv. sec. 2.) In 
 the thirty-third section of the act of Congress, entitled, "An act 
 to establish the Judicial Courts of the United States," it is pro- 
 vided, that for any crime or ofience against the United- States, 
 the offender may, by any Justice or judge of the United States, 
 or by any Justice of the Peace, or other magistrate, of any of 
 the United States where he may be found, agreeably to the 
 usual process against offenders in such State, and at the expense 
 of the United States, be arrested, and imprisoned or bailed, as 
 the case may be, for trial before such Court of the United States 
 as, by that act, has cognizance of the offence. (1 U. 8. 8tatutes 
 at Large, 91.) Under this act, it has been decided that a State 
 magistrate may commit, for further examination, an offender 
 charged with a crime against the United States. {Ex parte 
 8mith, 5 Cow. 273.) A statute has been passed in this State 
 which authorizes Justices of the Peace to issue process for the 
 apprehension of a person charged in any State or Territory of 
 the United States with treason, felony or other crime, who shall 
 flee from justice and be found vrithin this State. {Laws of 1839, 
 chap. 350, § 1.) This power of Justices of the Peace to arrest 
 fugitives from justice, will be considered more fully and par- 
 ticularly hereafter. 
 
 All Justices of the Peace, unless restricted by special statute, 
 have power to issue process for the apprehension of persons 
 charged with any offence; (2 E. 8. 706, § 1;) and all that seems 
 necessary to confer jurisdiction is, that an offence should be 
 committed in the county where the Justice resides, and a com- 
 plaii^ against the offender be preferred. (2 It. 8. 706, §§ 2, 5.) 
 
 Besides this general authority to arrest offenders, with which 
 Justices of the Peace are invested, there are other powers con- 
 ferred upon them, relating to criminal matters, which it is proper 
 briefly to enumerate. They are conservators of the Peace, and, 
 by virtue of their authority as such, they, may apprehend or 
 
524 NEW y&EK JUSTICE. 
 
 cause to be apprehended, without issuing written process, any 
 person threatening to, kill or beat another, or to commit any 
 oflFence against his person or property. (2 R. S. 605, § 8; 1 Hale's 
 P. O. 86.) When any violation of the act prohibiting profane 
 cui'sing or swearing, (1 M. /S- 674,) or of the act relating to the 
 disturbance of religious meetings, (id. 675,) or of the act con- 
 cerning the observance of Sunday, (id. 676,) takes place in the 
 presence of a Justice of the Peace, he must cause the offender 
 to be brought before him, and must proceed summarily to in- 
 quire into the facts, and the conviction of the offender by the 
 Justice is final and conclusive, (id. 677.) It is not necessary, 
 to give jurisdiction to a Justice in whose presence a violation 
 of the last named act has occurred, that a process should be 
 actually issued. (Foster vs. Smith, 10 Wend. 377; JPost, jpart 
 111, Chap. VII.) A single magistrate may exercise his juris- 
 diction upon Sunday, when it is necessary in criminal cases, to 
 preserve the j)eace or to arrest offenders. (2 H. S. 276, § 7.) 
 
 It is provided by statute, that indictments for murder may be 
 found at any time after the death of the person killed, and that, 
 in all other cases, indictments shall be found and filed in the 
 proper Court, within three years after the commission of the 
 offence; (id. 726, § 37;) but that the time during which the de- 
 fendant shall not have been an inhabitant of, or usually resident 
 within this State, shall not constitute any part of the said limi- 
 tation of three years, (id.) This provision determines the 
 limit, in point of time, of a Justice's jurisdiction in receiving a 
 complaint and issuing a warrant for any offence which is indict- 
 able, and also in holding a Court of Special Sessions for the 
 trial of an offender. (Barbour's Criminal Law, 490.) There 
 are, however, various special provisions in regard to the time 
 within which a prosecution must be instituted, an indictmeiit 
 found, or a conviction had in particular cases, which will be 
 noticed in their proper places. As regards the mode of com- 
 puting the time limited by any statute, it is provided, that 
 whenever the term "year" or "years" is used in any statute, 
 the year intended shall be taken to consist of 365 days; ana the 
 added day of a leap year, and the day immediately preceding, if 
 T;hey shall occur in any period so to be computed, shall be reck- 
 oned together as one day. (1 R. S. 606, § 3.) " Month" or 
 " months," when used in any statute, meaus a calendar, and not 
 
CONTEMPTS OF COURT. 525 
 
 a lunar month, unless otherwise expressed, {id. § 4.) When, 
 in a statute, the time is to be computed from an act done, the 
 day on which the act was done must be excluded in the com- 
 putation. (2 Cow 518, 605; 6 id. 659; Cornell vs. Moulton, 
 3 Den. 12.) 
 
 2. Affrays and Riots. 
 
 li . * 
 
 { Justices of the Peace also possess great powers for the pur- 
 pose of quelling affrays and riots. By the common law, every 
 private person may lawfully endeavor, of his own authority, and 
 without any sanction or warrant of a magistrate, to suppress a 
 riot by every means in his power. {Rex vs. Finney, 5 Ciir- 
 rington <& Payne, 261.) Justices of the Peace are bound to do 
 all that in them lies for the suppression of a riot, and they have 
 authority to command the assistance of all persons whomsoever 
 above the age of fifteen years, excepting clergymen, women, and 
 persons disabled by infirmity. {Rex vs. Kennett, id. 282.) And 
 it is not left to the choice or will of the bystanders, to attend or 
 not to the call of the magistrate, as they think proper; but every 
 man is bound, when called upon, under pain of fine and imprison- 
 ment, to yield a ready and implicit obedience to the call of the 
 magistrate, and to do his utmost in assisting him to suppress 
 any tumultuous assemblage, {id. 261, 282.) In the case of a 
 riot, especially, a Justice possesses almost unlimited powers to 
 secure the arrest of the rioters. He may command their arrest 
 orally, and the person thus commanded may pursue and arrest 
 the rioters, even out of the presence of the Justice. {2'Hale^s 
 P. C. 114.) And generally, in cases of felony, breaches of the 
 peace, and affrays of every kind, when a Justice is present, he 
 may in his own person apprehend the offenders, or by word of 
 mouth command any one to arrest them; and such command, 
 though unwritten, is good as a warrant, {id. 86; Philips vs. 
 Trull, 11 Jolins. 486.) 
 
 3. Contempts of Court. 
 
 In the following cases, and in no others, a Justice of the 
 Peace, for the preservation of the dignity of his Court, and for 
 the safe exercise of his powers," is authorized hy statute to punish, 
 as for a criminal«contempt, persons guilty of the following acts: 
 (2 R. 8. 273, § 274.) 
 
526 NEW YOEK JUSTICE. 
 
 1. Disorderly, contemptuous or insolent behavior towards 
 such Justice, while engaged in the trial of a cause, or in the 
 rendering of any judgment, or in any judicial proceedings, -wTiich 
 shall tend to interrupt such proceedings, or to impair the re- 
 spect due to his authority; 
 
 2. Any breach of the peace, noise, or other disturbance, tend- 
 ing to interrupt the official proceedings of the Justice; 
 
 3. Eesistance, wilfully offered by any person, in the presence 
 of a Justice, to the execution of any lawful order or process 
 made or issued by him. 
 
 The pdwers of a Justice are ample to repress and punish all 
 disorderly behavior by which the progress of proceedings be- 
 fore him may be impeded, whether the offender be a party, his 
 counsel, or a bystander; and self-respect, as well as a due re- 
 gard for the administration of justice, imperiously demand that 
 those powers should be used, and order be enforced with a firm 
 and steady hand. Justices may at all times rely upon the 
 countenance and favor of superior tribunals, in the due comrnajid 
 and vigorous enforcement of good order while conducting their 
 proceedings; and, as all necessary powers have been conferred 
 upon them for this purpose, they should know and feel that 
 that they alone are justly responsible for its observance. (Ora- 
 derdonk vs. Ranlett, 3 Hill, 323.) 
 
 Punishment for a contempt may be by fine, not exceeding 
 twenty-five dollars, or by imprisonment in the county jail, not 
 exceeding five days, jor both, in the discretion of the Justice. 
 But ni person shall remain in prison more than ten days for the 
 non-payment of such fine. (2 JR. S. 273, § 275.) 
 
 No person can be punished for a contempt before a Justice 
 until an opportunity has been given him to be heard in his de- 
 fence; and, for that purpose, a Justice may issue a warrant to 
 bring the offender before him. (id. ^ 2*76.) 
 
 Where a person used abusive and reproachful words to a 
 Justice relative to his judicial conduct, though not while he was 
 acting as a Justice, and the Justice, after the person had left his 
 office, issued a warrant commanding him to be taken and com- 
 mitted to jail, until he should find sureties for -his appearance 
 at the next general Sessions, and for his good behavior in the 
 mean time, and the party was arrested, but immediately dis- 
 charged, it was held, that the Justice had power to require the 
 
CONTEMPTS OF COURT. , 527 
 
 offender to find surety for the peace and for his good behavior, 
 and, in default thereof, to commit him, and that that part of the 
 waAant requiring him to be committed to jail in the mean time, 
 not having been executed, might be rejected, and the warrant 
 be good as to the residue. {Richmond vs. Dayton^ 10 Johns. 
 393.) 
 
 K the offender be actually present, the Justice need not issue 
 a warrant, but he should arraign the person, and state to him 
 particularly the character of the offence with which he is charged; 
 and, if no satisfactory defence is made, the Justice may impose 
 a fine, or make out a warrant for the commitment of the perso.n 
 to jail, or both. Care should be taken to afford him an oppor- 
 tunity to be heard in his defence, as the language of the statute 
 to' that effect is imperative. . 
 
 Mr. Justice Cowen says that, as this power is necessarily an 
 arbitrary one, the Justice should proceed with great caution and 
 prudence. He should bear in mind, that he is not engaged in 
 vindicating his own character or reputation, so much as in pro- 
 moting the respect due to the proper administration of the laws, 
 and to the Court of which he is an officer. This consideration 
 alone should induce him to receive as satisfactory any reasonable 
 apology for the offender's conduct; but if he refuse to render 
 such an/apology, the Justice should not hesitate to inflict upon 
 him such punishment as he may deem commensurate to the 
 offence committed. (2 Cow. Treatise, 368.) 
 
 Neither the justice nor the propriety of a commitment for a 
 
 contempt, made by a Justice according to law, can be inquired 
 
 iato upon the return to a writ of habeas corpus or certiorari, if 
 
 > the contempt be charged in the commitment. (2 i?. /S. 568, § 42.) 
 
 ^ § 54. Warrant of Arrest for Contempt. 
 
 County, ss: 
 To any constable of the said county, greeting: 
 Whereas, on [state the day,^ during the trial of a cause 
 between John Doe, plaintiff, and Richard Roe, defendant, \or 
 •whatever the proceeding may have been,] before me, J H B, a 
 Justice of the Peace in and for the said county, at my office in 
 [name of town or city] in said county, W V was guilty of con- 
 tenlpt towards me, the said Justice, while thus engaged in the 
 trial of said cause, [or other proceeding,] by speaking to, of, and 
 concerning me, as such Justice, and in my presence and hearing, 
 
628 NEW YORK JUSTICE. 
 
 these disorderly, contemptuous and insolent words: [here insert 
 the words verbatim, or state the contempt exactly.^ These are, 
 therefore, to command you, in the name of the people of-ithe 
 State of New York, to apprehend the said W V, and to bring 
 him before me at my office in said city, \or, town,] to ansWer for 
 the said contempt, and to be further dealt with according to lair. 
 Given under my hand. [Date.^ 
 
 J H B, Justice of the Peace. > 
 
 If the offender, upon being brought before the Justice, and 
 having the charge distinctly stated to him, does not make a 
 satisfactory explanation, the Justice may convict him of the 
 contempt. 
 
 Upon convicting any person qf a contempt, the Justice must 
 make up a record of such conviction, stating therein the par- 
 ticular circumstances of the offence, and the judgment rendered 
 thereon, which must be subscribed by him, and filed in the 
 office of the county clerk within ten days after its date, (2 R. 
 8. 273, \ 277.) The record will necessarily be varied to suit 
 the circumstances of the case and the character of the contempt. 
 
 \ 55. Record of Conviction. 
 
 County, ss: 
 
 Be it remembered, that on \state the day,] during the trial 
 of a cause between John Doe, plaintiff, and Richard Eoe, 
 defendant, [or whatever the proceediiwf may have been,] before 
 me, J H B, a Justice of the Peace in and for the said county, 
 at my office in [name of town or city] said county, W V was 
 guilty of contempt towards me, the said Justice, while thus 
 engaged in the trial of said cause, [or other proceeding,] by 
 speaking to, of, and concerning me, as such Justice, and in my 
 presence and hearijig, these disorderly, contemptuous, and 
 insolent words: [here insert the words verbatim, or state^the 
 contempt precisely:] and the said W V having been brought 
 before me to answer for the said contempt, and having had an 
 opportunity to be heard in his defence, and not having made 
 any sufficient defence against a conviction for said contempt, I 
 do hereby convict the said W V of the said contempt, and. do -^ 
 adjudge tha,t he pay a fine of [not exceeding twmiyfive dollars^ 
 and also that he be imprisoned in the county jail for [not 
 exceeding five days^ 
 
 Witness my hand this [daie.J 
 
 J H B, Justice of the Peace. 
 
CONTEMPTS OF doURT. 529 
 
 This record must be filed, within ten days after its date, in 
 the county clerk's office. (2 B. S. 273, § 277.) 
 
 The Justice must then make out a warrant of commitment, 
 which must set fox-th the particular circumstances of the offence, 
 or it will be void. (id. 274, § 278.) If only a fine is imposed, 
 and that is paid, no warrant of commitment is necessary; but 
 if the fine is not paid, or if imprisonment is imposed as a part 
 of the punishment, the warrant will be necessary. 
 
 ^56. Warrant of Commitment for Contempt. . 
 
 County, ss: 
 To any constable of the said county, and to the keeper of the 
 
 county jail of said county, greeting: 
 
 Whereas W V has this day been convicted by and before me, 
 J H B, a Justice of the Peace in , and for the said county, of a 
 contempt committed by him, the said W V, on [state the day,! 
 during the tiial of a cause between John Doe, plaintiff, and 
 Eichard Roe, defendant, [or whatever the proceeding may have 
 been,] before me, at my office in [name of town or city,] in said 
 county; which contempt consisted in [here transcribe the con- 
 tempt as set out in the record of conviction,] and the said W V, 
 having been brought before me to answer for the said con- 
 tempt, and having had an opportunity to be heard in his ' 
 defence, and not having made any sufficient defence against a 
 conviction for said contempt, and I having convicted the said 
 W V of the said contempt, and having thereupon adjudged 
 that he pay a fine of [as in the record of conviction,] and also 
 that he he imprisoned in the county jail for [as in the record of 
 conviction;] and whereas the said W V, although he has been 
 duly notified of the said conviction and judgment, has not paid 
 the said fine: These are, therefoi-e, in the name of the people 
 of the State of New York, to command you, the said constable, 
 to take, convey, and deliver into the custody of the said beeper 
 of <|ke said county jail, the body of the said W V, and you, the 
 said keeper, are hereby required to receive the said W V, into 
 your custody in the said jail, and him there safely keep during 
 the said term of [not exceeding five\ days, and further, until he 
 shall pay the said fine, or be duly discharged according to law. 
 The said W V, is, however, not to remain imprisoned for the 
 non-payment of said fine more than ten days. Given under my 
 hand and seal tliis [date.] J H B, Justice of the Peace. 
 
 The prisoner cannot be confined in jail more than ten days for 
 the non-payment of the fine. (2 R. 8. ?73, ^ 275.) 
 34 ■ 
 
530 NEW YORK JUSTICE. 
 
 The foregoing provisions in regard to the punishment of crim- 
 inal contempts by Justices of the Peace do not apply to the 
 Marine Court in the city of New York. That Court has the 
 same power to punish criminal contempts that Courts of Record 
 
 have. (2 B. S. 278, ^^ 10 to 15; Laws of 1852, cha;p. 389.) 
 
 « 
 
 4. Dying Declaeations. 
 
 It not unfrequently occurs, that a Justice of the Peace is called 
 to take from a wounded person who is dying from his wounds, a 
 statement of the facts and circumstances relating to the injuries 
 he has received, and his declarations as to the person or persons 
 by whom the wounds were inflicted. These statements and dec- 
 larations are admissible in evidence in cases of homicide, upon 
 the principle that they are statements and declarations made z'n 
 extremis, when the party is at the point of death, when every 
 hope for this world is gone, when every motive to falsehood is 
 silenced, and when the mind is induced, by the mdst powerful 
 considerations, to speak the truth. A situation so solemn and so 
 awful is considered by the law as creating an obligation equal to 
 that which is imposed by a positive oath administered in a Court 
 of Justice. (1 LectcKs G. C 500; Russell on Crimes, 753.) 
 
 These declarations are not required by any statute to be re- 
 duced to writing, but it is better that they should be, and be 
 signed by the person making them; but it is no objection to the 
 admission of a parol declaration, that the deceased made a subse- 
 quent one to a magistrate, which was taken in writing and is not 
 produced, {id. 763.) It is essentially necessary, however, to 
 the admissibility of these declarations, that the person making 
 them should at the time be conscious of approaching death. 
 (1 Leg,cKs O. Q. 500.) It therefore is the duty of a Justice to 
 impress the declarant with a sense of his situation, the cert^ty 
 of his speedy dissolution, and the obligation resting upon him to 
 speak the truth, uninfluenced by any passion or desire for 
 revenge. 
 
 It is periiiitted to a prisoner, in his defence, to show the state 
 of mind and behavior of the deceased at the time of making his 
 declaration. (1 Phillips' Ev. 989.) The Justice should pay 
 the strictest attention to the statements made, and to the man- 
 ner of maldng them, and it should be his endeavor to elicit the 
 whole truth, and to prevent, if possible, the concealment of any 
 
SEABCH WARRANTS. 531 
 
 circumstAnce affecting the transaction. It is not necessary that 
 the examination should be conducted after the manner of inter- 
 rogating a witness, though a departure from this mode may- 
 affect the value and credibility of the declarations; (2 Russell 
 on Crimes, 764;) nor is it any objection to their admissibility, 
 that they were made in answer to leading questions, and 
 obtained by earnest and pressing solicitations. (1 Qreenl. on 
 Ev. %\ 159, 161.) 
 
 5. Search Warrants 
 
 As the discovery of stolen goods frequently leads to the 
 detection and punishment of the offender, it is not improper to 
 consider in this place the authority and duty of Justices of the 
 Peace in regard to search warrants. By the Eevised Statutes, (2 
 R. 8. 746, § 25,) it is made lawful for any magistrate, upon com- 
 plaint or oath being made that any personal property has been 
 stolen or embezzled, and that the complainant suspects that 
 such property is concealed in any particular house or place, to 
 issue a warrant to search for such property. Such warrant must 
 be directed to the sheriff of the county, or any constable or 
 marshal of the town or city, and command him to search in the 
 day time the place where such property is suspected to be con- 
 cealed, (which place must be particularly designated, and the 
 property be particularly described in the warrant,) and to bring 
 the property before the magistrate issuing the warrant, (id. 
 § 26; People vs. HolcomL, 3 Park Or. 656.) ' If there be posi- 
 tive proof that any property stolen or embezzled is concealed 
 in any particular house or place, the warrant may authorize the 
 searching of such house or place in the night time. {id. % 27.) 
 Every silch warrant must be executed by a public, officer and 
 not" by a private citizen, {id. § 28.) 
 
 The fourth amendment to the Constitution of the United States 
 provides, that the rights of the people to be secure in their per- 
 sons, houses, papers and effects, against unreasonable searches 
 and seizures, ought not to be violated, and that no warrants can 
 issue but upon probable cause, supported by oath or affirma- 
 tion, and particularly desci'ibing the place to be searched, and 
 the persons or things to be seized. (2 R. S. 93, § 11; Ath 
 Amendt. to Constitution U. jS.) This provision relates solely 
 
532 NEW YORE JUSTICE. 
 
 to criminal process, and has nothing to do with arrests in civil 
 suits. {Walker vs. Oruikshank, 2 Hill, 296.) 
 
 The first proceeding on the part of the Justice to whom ap- 
 plication for a search warra,nt is made, is to require a complaint 
 upon oath, to the effect that certain personal property, (which 
 must be particularly described,) has been stolen or embezzled, 
 and that the complainant suspects that such property is cour 
 cealed in a particular house or place. Then, if the Justice is 
 satisfied that there is reasonable ground for such a suspicion, he 
 must issue the warrant. But he cannot issue a general warrant 
 to search in all suspected places. {Dunlap's Justice, 368 ; Peo- 
 ple ys. Holcomb, 3 Park. Or. 656.) Such a warrant is bad, both 
 .by the common law and by statute. (1 Chitty's CMm.Law, 65; 
 2 R. S. 746, § 26.) The warrant must specify, with great par- 
 ticularity, both the property stolen and the place where it is 
 suspected to be concealed, (id.) It must also, as a general 
 rule, direct that the search be made in the day time, (id.) It 
 is only when the proof is positive that the property is concealed 
 in a particular place, that the magistrate is justified in author- 
 izing a search in the night time; and then only for the reason, 
 as has been quaintly remarked, lest the ofienders and the goods 
 also be gone before morning. (Dunlap's Justice, 368.) The 
 warrant must be entirely filled up before it is issued, and must 
 have no blank either in the date or otherwise, and must be 
 signed by the Justice; and it should be sealed. (2 P. 8. 267, 
 §§ 232, 233; People vs. Holcomb, 3 Park. Cr. 656; Smith ys. 
 Randall, 3 Hill, 4^5.) 
 
 § 57. Complaint to ohtaiii a Search Warrant. 
 
 County, ss: A B, of said county, being duly sworn, 
 gays, tbat certain personal property of the said A B, \or of one 
 C D,] to wit: [describe the property,'} of the- value of " 
 
 dollars, or upwards, was stolen and feloniously taken from his 
 dwelling-house in the town of , in said coimty, on the 
 
 day of instant, [or, last past;]* and that this 
 
 deponent suspects that R D has stolen and taken the same as 
 aforesaid; and that the said property, or a part thereof, is now 
 concealed in the dwelling-house of the said E D, in tjie said 
 county; wherefore process is applied for to search the same. 
 Sworn to, this day of ^ A B. 
 
 18 , before me, J 
 
 J H B, Justice of the Peace. 
 
SEARCH WAKBANTS. 533 
 
 § 58. Search Warrant. 
 
 County, ss: To the Sheriff of said County, or to any 
 Constable of the Town [oj', City] of , in said County, 
 
 greeting: Whereas, A B has made complaint, upon oalh, be- 
 fore me, J n B, one of the Justices of the Peace of the said 
 county, that, &c., [as in ^ bl to the*, and then add:^ and that he 
 suspects that R D did steal and take the same, as aforesaid; and 
 that the said property, or a part thereof, is now concealed in 
 the dwelling-house of the said E D, in said county: Therefore, 
 the people of the State of New York command you to search 
 the place where the said property is suspected to be concealed, 
 in the daytime, [or, as well in the night time as in the day 
 time,] and that you bring the same before me. 
 
 Witness my hand and seal this day of 18 . 
 
 J H B, [l. s.] 
 Justice of the Peace. 
 
 The officer receiving the warrant must strictly pursue its 
 directions, and he will be protected only in seizing the property 
 specified. Therefore, in a case where a warrant was granted 
 authorizing sugar to be taken, and the officer took, not only the 
 sugar, bat teas and nails also, he was found guilty of trespass 
 with regard to the property not specified. [Price vs. Messen- 
 ger,^ Eepinasse, 96.) 
 
 , With respect to the mode of executing the warrant, if the 
 outer door of the building be shut, and, upon demand, be not 
 opened, it may be broken open; (1 Chitty^s Crim. Law, 66; 
 Bell vs. Clapp. 10 Johns. 263;) and so may boxes, after the 
 keys have been Bemanded; and, though the goods be not found, 
 the officer will be justified. (1 Ohitti/s Crim. Law, 66; Cooyer 
 vs.. Booth, 3 Espinasse, 135; 2 j^osanquel & Puller, 160.) The 
 officer should take care that his character and name are known 
 and understood. No precise form of words is necessary. It is 
 sufficient that a party has notice that the officer comes, not as a 
 trespasser, but claiming to act under a proper authority. (Pos- 
 ter's C. C. 137.) 
 
 If the warrant has been legally and regularly issued, and prop- 
 erly executed, it is a protection to those who execute it, against 
 an action of trespass. [Beattij vs. Perkins, 6 Wend. 383.) The 
 statute does not authorize a Justice to incorporate in a seardi 
 warrant an order for the arrest of the person in whose custody 
 
534 NEW TOKK JUSTICE. 
 
 the goods may be found; but if such a direction is inserted, it 
 will not vitiate the waiTant. A search warrant, under the hand 
 and seal of a Justice, reciting information on oath that certain 
 goods described therein have been stolen by A and B, and are 
 concealed in the house of C, and commanding the officer to whom 
 it is directed to enter the said house in the day time, and search 
 for the articles stolen, and to bring them with C, or the person 
 in 'whose custody they shall be found, before the Justice, is 
 legal and valid. {Bell vs. Olapp, 10 Johns. 263.) 
 
 If, on the return of the warrant before the Justice, it appears 
 that the goods were not stolen, they are to be restored. (1 
 Chitty's Grim. Law, 67; 2 Hale's P. 0. 151.) If they were 
 stolen, they are to be delivered to the owner, on proof of his 
 title, and upon the payment of the reasonable and necessary 
 expenses incurred in their preservation. (2 H. S. 747, § B2.) 
 The party who had the custody of the goods is to be discharged, 
 if they were not stolen. If they were stolen, not by him, but 
 by another person, who sold and delivered them to him, and it 
 appears that he was ignorant of the mode in which they were 
 procured, he may be discharged, but ought to be bound over 
 to give evidence as a witness against the person who sold them. 
 If it appears that he knew the goods were stolen, then he should 
 be committed as for a felony, if the taldng of the goods origin- 
 ally was felonious; for, as has 'been well observed, there is a 
 probable cause of suspicion that he was at least an accessory 
 after the fact. (2 Hale's P. C. 151; Ohitty's Crim. Law, 67; 
 Dunlap's Justice, 371; Barb. Crim. Law, 502.) If the original 
 offence was a misdemeanor, the party should be bound over to 
 answer the charge, or be bailed, as the case may require. If 
 the original offence was punishable by a summary conviction, 
 the party should be proceeded against summarily, {id.) 
 
 6. Searching Prisoners. 
 Any magistrate who shall commit to prison any person charged 
 with any offence, or by whom any vagrant or disorderly person 
 shall be committed, may cause such person to be searched, for 
 the purpose of discovering any property he may have; and, if 
 any property be found, the same may be taken and applied to 
 the support of such person while in confinement. (2 B. S. 745, 
 h 29.) 
 
STOLEN PROPEKTX. 535 
 
 7. Stolen Property. 
 
 , If stoleu property comes into the custody of any Justice of 
 the Peace, it must, upon satisfactory proof of the title of any 
 owner thereof, be delivered to him, on his paying the reason- 
 able and necessar}"- expenses incurred in the preservation of such 
 property, to be certified by such Justice. (2 R. S. 74:7, § 32.) 
 , When property alleged to have been stolen comes into the 
 custody of any constable, marshal, sheriff or other person au- 
 thorized to perform the duties of any such office, he must hold 
 the same subject to the order of the magistrate who shall take 
 the examination of the person accused of stealing it. The magis- 
 trate may order it to be delivered to the person offering satis- 
 factory proof of title to the property, on the payment of the 
 reasonable and necessary expenses incurred in its preservation, 
 to be certified by the magistrate, {id. 746, §§ 30, 31.) 
 
 If property stolen shall not have been delivered to the owner 
 thereof, the Court before which a conviction shall be had for 
 the stealing of such property, may, upon proof of its ownership 
 by any person, order it to be restored to him. (id. 747, § 33.) 
 If stolen property is not claimed by its owner before the expi- 
 ration of six months from the time any persgai shall have been 
 convicted of stealing it, the magistrate, sheriff, constable, or other 
 officer or person having the same in his custody, must deliver 
 it to the county superintendents of the poor, on being paid the 
 reasonable and necessary expenses incurred in its preservation, 
 to be appropriated to the use of the poor of the county, (id. 
 V35.) 
 
536 NEW YORK JUSTICE. 
 
 CHAPTER III. ' 
 
 ON PEOCESS FOE THE AEEEST OF OFFENDEES. 
 
 In issTidng process for the arrest of offenders, as well as in per- 
 forming various other duties devolving upon him, a Justice of 
 the Peace is said to act ministerially; and it is when acting 
 ministerially, that the greatest caution and prudence are requi- 
 site. For errors committed in his judicial capacity no action 
 will lie against him; (3 Cmnes, 170.; 10 Wend. 102; 11 id. 545; 
 Harman vs. Brotherson, 1 Den. 537;) but if he errs while acting 
 ministerially, he is responsible to the party injured, (2 Johns. 
 Oases, 49; 3 id. 84; Roelu White Lead Co. vs. City of Rochester, 
 3 Corns. 464.) And corrupt motives need not be charged against 
 him, in order to make him liable; (Houghton vs. 8wwrtwout, 1 
 Den. 589;) but, when they are charged, the question whether 
 they existed or not should be submitted to the jury. {People 
 vs. Whaley, 6 Cow. 661.) When a Justice acts partially or 
 oppressively, from malicious and corrupt motives, he is liable 
 to indictment. {People vs. Coon, 15 Wend. 277.) If a Justice 
 issues a warrant against the putative father of a bastard child, 
 on the application of any other person than the overseers of the 
 poor, he issues it without authority, and acting ministerially, is 
 liable to the party arrested, notwithstanding a subsequent assent 
 by the overseers to the proceedings. {Wallsworth vs. McCul- 
 lough, 10 Johns. 93.) 
 
 The rule as to the liability of a Justice is; that when he has 
 no jurisdiction whatever, and undertakes to act, his acts are 
 coram non judice and void, equally as if he were not a Justice. 
 If he has jurisdiction, then his erroneous acts are not void, but 
 voidable only by a direct proceeding to correct them. In the 
 former case, he is personally liable; in the latter not. (17 id. 
 146; 19 id. 39; 3 Cow. 209; Horton vs. Auchmoody, 7 Wend. 
 200.) A record of conviction, however, cannot be questioned 
 or traversed in a collateral action; {Mather vs. Hood, 8 Johns. 
 51;) and, if it appears that the Justice had jurisdiction, and 
 proceeded regularly, it is conclusive, and a bar to any suit 
 
THE COMPLAINT. 537 
 
 against him for anything adjudged by him and within his juris- 
 diction. {BigelowYS. Stearns, 19 Johns. 41.) But if the record 
 is interposed as a defence, it is competent to show that the magi- 
 strate had not jurisdiction of the person against whom the con- 
 viction is sought to operate. {Bigelow vs. Stearns, 19 Johns. 41.) 
 
 1. The Complaint. 
 
 It is provided by statute, that Justices of the Peace shall have 
 power to issue process for the apprehension of persons charged 
 with any offence; (2 li. S. 706, ^1;) and it is a familiar prin- 
 ciple of law, that where a statute gives a Justice jurisdiction of 
 an offence, it .impliedly gives him authority and power to appre- 
 hend any person charged with the commission of such offence. 
 (1 Chitii/'s Crim. Law, 34; 2 Bing. 63; 10 Modem Rep. 248.) 
 
 The first step to be taken, in order to procure the arrest of an 
 offender, is to prefer a complaint before a Justice. This com- 
 plaint maybe preferred against anyone; for all persons are 
 equally liable to arrest in criminal cases. (4 Blacks. Oomm. 
 290; Dunlap's Justice, 25.) Even the exemption in favor of 
 females doe's not extend to arrest for criminal offences; (2 R. S. 
 428, § 9; 1 Chitty's Crim. Law, 12;) nor do the various statu- 
 tory exemptions in favor of witnesses, (2 R. 8. 402, \ 48,) 
 voters at elections, (Laws of 1842, chap. 130,) and oflicers and 
 members of the Legislature. (1 R. S. 154, § 6.) 
 
 It is said by Blackstone, and repeated by other writers upon 
 criminal law, that no man is to be arrested unless charged with 
 such a crime as will at least justify holding him to bail when 
 taken. [4: Blacks. Comm. 289; 1 Dunl. Justice, 25; Barbour's 
 Crim. Law, 530.) The statute and the common law authorize 
 the arrest and holding to bail for the commission of almost every 
 sii|)posable offence, and it is presumed that but few cases can 
 arise in which a magistrate, in arresting an offender, would over- 
 step the bounds of his authority, because of the offence not being 
 such a one as would justify the holding to bail. 
 
 As private persons who are present when a felony is com- 
 mitted, are bound to arrest the felon, (4 Blacks. Comm. 293; 
 1 Chitty's Crim. Law, 17; Phillips vs. Tnill, 11 Johns. 486,) 
 so it is the common duty and right of every citizen to prefer 
 an accusation against a party whom he suspects to be guilty. 
 (1 QMtlky^a Crim, Ldw^ 2.) And not only is a citizen entitled to 
 
538 
 
 NEW YORK JUSTICE. 
 
 prefer an accusation against a party suspected of a crime, but. he; 
 is bound, by the strongest obligations both of reason and of law, 
 to exert the power with which he is invested. (1 Chitty's Orim. 
 Law, 3.) The citizen, if an injury is inflicted upon him, may forgive 
 it, and thys perform an act of good nature and humanity, but cour 
 trary to the good of the public. He may dispense with satis- 
 faction for his private injuries, but he cannot remove the neces- 
 sity of public example. (4 Blacks. Cormn. 364.) The object 
 of criminal proceedings is not vengeance for the past, but safety 
 for the future, and to the furtherance of this design every man 
 is bound to contribute. (1 Ghitt]fs Orim. Law, 3.) Nor need 
 a complainant fear to communicate his suspicions to a magis- 
 trate, for the law ensures to him all due protection in the dis- 
 charge of his duty. [id. 10.) This point has been frequently 
 adjudicated, and it may now be regarded as, settled, that a com- 
 plainant is not liable in an action for damages at the suit of the 
 party complained of or indicted, unless his proceedings were 
 both actuated by malice and destitute of probable cause, (id.; 
 9 East, 361; 1 Camp. 199; McCormick vs. Sisson; 7 Cow. 715; 
 1 Wend. 140; 2 Len. 617; 3 Washington's C. C. R. 31; lAm. 
 Leading Cases, 211.) But, if the complainant makes the law 
 an instrument of persecution, and a mere engine of oppression,, 
 he becomes liable to the party injured, in an action on the case 
 for malicious prosecution, {id.; 1 Chitti/'s Crim. Law, 10; 
 Secor vs. Babcock, 2 Johns. 203; Harris vs. Scott, 21 Wend. 
 281.) 
 
 The complainant then, appearing before the magistrate, his 
 examination and that of the witnesses whom he may pi"oduce, 
 is to be taken on oath. (2 J?. S. 706, ^ 2.) And, as it is 
 upon complaint, and the testimony adduced in its support, that 
 the warrant for the apprehension of the offender is predicated, 
 (id. \ 3,) it becomes the duty of the magistrate to consider 
 carefully all the circumstances sworn to, and the behavior of 
 the witnesses upon the examination, and to scrutinize the mo- 
 tives which the prosecutor by his conduct evinces. (1 Chitty's 
 Orim. Law, 34.) It should be his object to ascertain, as well 
 that a felony or other crime has been committed, as also the 
 cause an4 probability for suspecting the party against whom 
 the warrant is prayed. (4 Blackstone's Oomm. 290.) 
 , There has been some diffei'ence of opinion as to whether a 
 
THE COMPLAINT. 539 
 
 person who is disqualified from being a witness in a civil action, 
 can prefer a complaint before a magistrate, upon which he can 
 legally issue a warrant. Mr. Chitty observes, that those per- 
 sons are disqualified from becoming prosecutors, who, either 
 from religious scruples or infidelity, which renders them inca- 
 pable of taking an oath, or from infamy, which presumes them 
 to be unworthy of credit, are disqualified from being witnesses. 
 (1 Qhitty's Grim. Law, 2.) In New York, the Constitution pro- 
 vides that no person shall be rendered incompetent to be a wit- 
 ness on account of his opinions on matters of religious belief; 
 (Gonstitution of 1846, art. /. § 3;) so that Mr. Chitty's first 
 objection is obviated. In respect to the second objection, it is 
 apprehended that no decision can be found which authorizes a 
 Justice to refuse to hear a complaint, 'because the person pre- 
 ferring it has himself transgressed the law; and it has never 
 been decided that the statutes of New York disqualifjang as 
 witnesses persons convicted of felony, (2 R. B. 68i; \ 1; id. 
 701, ^ 23,) apply to oaths on applications for such warrants. In 
 the language of Ch. J. Holt, before whom the reading of an affi- 
 davit was objected to, for the reason that the person making it 
 had stood in the pillory: "Must he, therefore, suffer all inju- 
 ries, and have no way to help himself?" {Davis & Ca,rter's 
 case, 2 Salheld, 461.) 
 
 Infants also may be sworn, (10 Massachusetts Rep. 225,) it 
 being necessary for the magistrate, however, to be satisfied that 
 the child has proper sense of the nature of an oath and of the 
 consequences of falsehood. (1 Russell on Crimes, 165.) But, 
 if the prosecutor or witness is non compos mentis, or deranged, 
 he is incompetent. {Livingston vs. Kiersted, 10 Johns. 362.) 
 
 As acts done by a person in a state of insanity cannot be jjun- 
 ished as ofiences, the Justice, if a complaint is made against one 
 whom he knows to be insane, instead of issuing his warrant 
 against him as an ofiender, should see that proper steps are 
 taken under the statute to secure him. {Laws of 1838, chap. 
 218; post, part III. chap. XVII.) 
 
 The oath to the complainant and witnesses may be as follows: 
 
 ^59. Oath of Complainant, or of Witness on Complaint. 
 You do swear in the presence of Almighty God, that you 
 will true answers make to such questions as shall be put to you, 
 toucMirg this complaint against G D. 
 
540 NEW YORK JUSTICE. 
 
 The statute does not require that the statement of the com- 
 plainant and his witness,es should be reduced to writing, but 
 such appears to be the proper course, and is strongly advised 
 by several writers. (3 Bwnls Justice, 427; 1 Ghitty's Orim. 
 Law, 34; Payne vs. Barnes, 5 Barb. 465.) A Justice obtains 
 a great advantage by reducing the examination to writing, for, 
 if prosecuted, he can show an examination on oath, and, if that 
 confers jurisdiction, and authorizes the issuing of the warrant, 
 trespass will not lie. {Lowther vs. Earl of Radnor, 8 East, 
 113.) 
 
 Nor does the statute require that the complaint should be in 
 writing; (2 R. 8. 706, § 2;) but, if so made, it should contain 
 a positive charge against the offender. If the complaint is for 
 a felonious taking of property, the value of the property, and 
 the place where the offence was committed, should be set out." 
 {Hoioell vs. People, 2 HtH, 281; 4 Johns. 292.) 
 
 The following forms will answer for the complaint, care being 
 taken to charge in them, accurately and positively, the offence 
 committed: 
 
 § 60. Complaint for Assault and Battery. 
 
 County, ss: 
 A B, of said county, being duly sworn, says, that on the 
 day, of , 18 , one C D did violently assault and beat 
 h^m, the said A B, at the town of , in said county; 
 
 wherefore this deponent prays that the said offender may be 
 dealt with according to law. ' A B. 
 
 Sworn, &c., \as in § 57.] 
 
 § 61. Complaint for Grand or Petit Larceny. 
 
 County, ss: 
 
 A B, of said county, benig duly sworn, says, that certain per- 
 sonal property of the said A B, [or, as the case may 6e,] to wit: 
 [describe property, '\ of the value of dollars, or tipwards, 
 
 was stolen and feloniously taken from his dwelling-house in the 
 town of , in said county, on the day of , 
 
 18 ; and that this deponent suspects that C D has stolen and 
 taken the same, as aforesaid; wherefore he prays process to 
 apprehend the said offender. 
 
 Sworn, &c., [as in ^ 57.] A B. 
 
THE COMPLAINT. 541 
 
 ^ 62. Complaint for Murder. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of , 
 
 in said county, one M P was feloniously, wilfully, and of malice 
 aforethought, Idlled and murdered; and that this deponent has 
 just cause to suspect, and does suspect, that the said murder 
 was committed by R D, \or, by a man, [describe his person,^ but 
 whose name is unknown to this deponent. 
 
 Sworn, &c., [as in § 57.] A B. 
 
 \ 63. Convplaint for Murder by Poisoning. 
 
 County, ss: . 
 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at tfae town of , 
 
 in said county, one M P died; and that this deponent has just 
 cause to suspect, and does suspect, that, on the day of 
 
 , aforesaid, one R D did feloniously, wilfully, and of 
 malice aforethought, administer to the said M P a certain deadly 
 poison, called arsenic, by reason whereof the said M P languished 
 a short time and then died. 
 
 Sworn, &c., [as in § 57.] A B. 
 
 § 64. Complaint for Murder by Stabbing. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of , 
 
 in said county, one R D did, in the presence of this deponent 
 and other witnesses, feloniously, wilfully, and of malice afore- 
 thought, stab one M P, with a butcher's knife, and give him 
 several mortal wounds, of which the said M P died immediately, 
 [or, languished a short time and then died.] 
 
 Sworn, &c., [as in § 57.] A B. 
 
 § 65. Complaint for Murder by Shooting. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of , 
 
 in said county, one R D did feloniously, wilfully, and of malice 
 aforethought, fire and discharge a gun, [or, pistol,] loaded with 
 powder and ball, at one M P, and ^ give him one [or, several] 
 mortal wound, [or, wounds,] of wliich the said M P, &c., [as in 
 § 64 to the end. 
 
 Sworn, &c,, \m in \ 57.] A B. 
 
542 NEW YORK JUSTICE. 
 
 § GG. Complaint for Murder hy Cutting Throat. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, \or^ last past,,] at the town of , 
 
 in said county, one E D, feloniously, wilfully, and of malice 
 aforethought, with abowie knife, made an assault upon, and did 
 sti'ike and cut the throat of M P therewith, and did give him one 
 mortal wound thereon, of which the said M P, &c., \as in \ 64 
 to the end^ 
 
 Sworn, &c., \as in \ 57.] A B. 
 
 \ 67. Complaint against Accessory after the Fact. 
 
 County, ss: 
 
 A B, of said county, &c., [as in either of the preceding com- 
 flaints for murder, to the end and them, addi\ And that after- 
 wards, to wit, on the day of instant, \or, last 
 past,] at, the town of , in said county, one R S, well 
 knowing the said E D to have done and committed the said 
 felony and murder, did feloniously and wilfully conceal \or, aid, 
 comfort and assist] the said E D, with the intent and in order 
 that the said E D might avoid, or escape from, arrest \or, trial, 
 or, conviction and punishment] for the said felony and murder. 
 
 Sworn, &c., \as in ,§ 57.[ A B. 
 
 ^ 68. Complaint for Arson, in the First Degree. 
 
 County, ss: 
 
 A B, of said county, beingduly sworn, says,* that on the 
 day of instant, [or, last past,] in the night time, at the town 
 of , in said county, one R D did unlawfully, wilfully, 
 
 maliciously, and feloniously set fire to and burn the dwelling 
 house of one M P, situate in said town; there being at the same 
 time some human being, to wit, [mention who,^ in the said dwel- 
 ling' house. 
 
 Sworn, &c., [as in § 57.] 
 
 § 69. Complaint for Arson, in the Second Degree. 
 
 County, ss: » 
 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, &c., [as in ^ 68, to the end, substituting 
 
 "in the day time "for "in the night time;" or, say, at the town 
 of , in said county, in the night time, one E D did unlaw- 
 
 fully, wilfully, maliciously, and feloniously set fire to and burn 
 the warehouse of one M P, situate in said town; which said ware- 
 
THE COMPLAINT. 543 
 
 house was adjoining to [or, within the curtilage of) the inhabited 
 dwelling-house of the said M P, whereby the said dwelling house 
 was endangered.] 
 
 Sworn, &c., [as in § 57.] 
 
 § 70. Complaint for Arson, in the Third Degree. 
 
 , County, ss: 
 
 \ A B, of said county, being duly sworn, says,* that on the 
 day of , instant, at the. town of , in said county, in 
 
 the day time, one E D did wilfully, maliciously, and feloniously 
 set fire to and burn the warehouse, &c, \as in § 69, to the end; 
 or, in the night time, one E D did unlawfully, wilfully, mali- 
 ciously, and feloniously set fire to and burn a certain school-house, 
 situate in school district number , in said town.] 
 Sworn, &c., [as in § 57.] 
 
 § 71. *Com.plaint for Setting Fire to a Crop of Grain Growing . 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one E D did unlawfully, wilfully, mali- 
 ciously, and feloniously set fire to and burn a certain crop of 
 barley then gi-owing in the field of the said A B, situate in said 
 town. 
 
 Sworn. &c., [as in § 57.] 
 
 ^ 72. Complaint for Manslaughter, in Killing Another with an 
 
 Axe. 
 
 * 
 
 County, ss: 
 
 A B, of said county, being duly sworn, says,* that on the 
 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one E D did wilfully and feloniously 
 
 strike one M P with an axe, then in the hands of the said R D, 
 
 and thereby gave him, the said M P, one mortal wound, whereof 
 
 the said M P died immediately, [or, languished a short time, and 
 
 then died.] 
 
 Sworn, (fee, [as in § 57.] ' 
 
 ^ 73. Complaint fo^ Manslaughter, in Killing an Unborn Child, 
 by Kicking its Mother. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D did wilfully and feloniously kill 
 
544 
 
 NEW YOBK JUSTICE. 
 
 an unborn quick child, of which one E P was then and there 
 pregnant, by kicking the said E P, with intent to till her, the 
 said E P, or the said unborn quick child. 
 Sworn, &c., [as in § 57.] 
 
 \ 74:. Complaint for ManslaugJiter, in Killing an Unborn Child, 
 by Administering Drugs, (&c., to its Mother. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one E D did wilfully land feloniously 
 administer to one E P, who was then and there pregnant with 
 a quick child, a certain medicine, drug, or substance, called 
 "savin," [or, use or employ a certain instrument, called a 
 " forceps,"] with intent thereby to destroy such unborn quick 
 child; whereof the said unborn quick child died immediately, 
 [or, languished a short time, and then died.] * 
 
 Sworn, &c., [as in § 57.] 
 
 ^ 75. Complaint for Rape. 
 
 County, ss: 
 A'B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D (lid violently and feloniously 
 make an assault upon the body of the said A B, [or, of one E 
 P,] and her, the said A B, [or, E P,] against her will did then 
 and there ravish and carnally know. 
 Sworn, &c., [as in § 57.] 
 
 § 76. Complaint for Rape, on Female Under Ten Years. 
 
 County, ss: 
 A B, of said county, being duly Sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one E. D, did feloniously make an 
 assault on C P, a female child under the age of ten years, and 
 her, the said C P, then and there wickedly, unlawfully, and 
 feloliiously, did carnally know. 
 Sworn, &c., [as in § 57.] 
 
 \ 77. Complaint for Assault, with Intent to Commit a Rape. 
 County, ss: 
 
 A B, of said county, being du! 
 day of instant. 
 
 y sworn, says,* that on the 
 or, last past,] at the town of 
 
 , in said county, one K D, did feloniously make an 
 
THE COMPLAINT. '54;' 
 
 assault on one E P, with intent her, the said E P, against her 
 will, then and there feloniously to ravish and carnally know. 
 Sworn, &c., [as in ^ 57.] 
 
 § 78. Complaint for Forcible Abduction of a Woman, with 
 Intent to Compel her to Marry, or Prostitute Herself. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in the said county, one E D, did make an assault upon 
 her, the said A B, [or, one E P,] and did then and there unlaw- 
 fully, feloniously, and against her will, take her, the said A B, 
 [or, take the said E P,] with the intent to compel her by force, 
 [or, menaces, or, duress,] to marry him, the said K D," [or, one 
 L M; or, with the intent that she should be defiled.] 
 Sworn, &c., [as in % 57.] 
 
 ^ 79. Complaint for taking Female under Fourteen Years of 
 Age from her Parent or Guardian. 
 
 County, ss: 
 A B of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D, did unlawfully and feloni- 
 ously take away one M B, a female infant under the age of 
 fourteen years, from the said A B, her father [or, guardian, duly 
 appointed, and having the legal charge of her person,] without 
 his consent, for the purpose of prostitution, [or, concubinage, 
 or, marriage.] 
 
 Sworn, &c., [as in \ 57.] 
 
 \ 80. Complaint for Mayhem or Maiming. 
 
 County, ss: 
 A B, of said county, feeing duly sworn, says,* that on the 
 day of instant, [or, last pa^t,] at the town of 
 
 , in said county, one R D, from premeditated design,\ 
 and by lying in wait for the purpose, did unlawfully and feloni- 
 ously assault the said A B, and did then and there put out one 
 of the said A B's eyes, [or, one E D, did unlawfully, violently, 
 maliciously and feloniously, assault the said A B, with intent to 
 kill [or, rob] him, and did then and there slit the nose of the 
 said A B.] 
 
 Sworn, &c., [as in § 57.] 
 
546 NEW YORK JUSTICE. 
 
 § 81. Complaint for Child Stealing. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, \or, last past,] at the town of 
 
 , in said county, one R D, did feloniously, maliciously^ 
 and forcibly, [or, fraudulently, if no force was icsed,J take, [or, 
 kad,] and carry away, [or, decoy, or, entice away, J one E. B, 
 the child of the said A B, and -under the age of twelve years, 
 with intent to detain and conceal the said child from the said 
 AB. 
 
 Sworn, &c., [as in § 57.] 
 
 ^ 82. Complaint for Abandoning Child. 
 
 County, 'Is: 
 A B, of said county, being duly sworn, says,* that on the. 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D, did feloniously expose and 
 leave a certain child, named E D, under the age of years, 
 
 of which child said R D Avas the father, [or, which child had' 
 been confided to the care of the said R D, with intent wholly 
 to abandon said child. 
 Sworn, &c., [as in § 57.] 
 
 § 83.. Complaint for Shooting at, or Attempting to 'Shoot at, 
 , with Intent to Kill, Rob, or Maim. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R. D, did feloniously shoot at 
 him, the said A B, with a certain gun, loaded with gunpowder 
 and lead, with intent to kill him, the said A B, [or, did felon- 
 iously present and level at the said A B, a pistol, loaded with 
 gunpowder and lead, and attempt, by drawing the trigger 
 thereof, to discharge the same at the said A B, with intent to 
 kill [or, rob, or, maim] him, the said A B.] 
 Sworn, &c., [as in § 57.] 
 - • 
 § 84. Complaint for Assault ivith Deadly Weapon, with Intent 
 
 to Kill. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D, did feloniously, with and by 
 
THE COMPLAINT. 547 
 
 means of a certain deadly weapon, to wit, an axe, then in His 
 hands, make an assault upon the said A B, and him, the said A 
 B, did then and there, with the said deadly weapon, beat and 
 illj-treat, with intent to kill him, the said A B, [or, did, with and 
 by means of his hands, feet and fists, and by such force as was 
 likely to produce death, feloniously assault and beat the said A 
 B, withjintent, &c., as above.] 
 Sworn, &c., [as in ^ 57.] 
 
 ^ 85. Complaint fbr Poisoning Food. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one E D, with intent to injure and kill 
 one M B, and divers other persons, did maliciously and feloni- 
 ously mingle a certain poison called arsenic, with certain food, 
 [or, drink, or, medicine,] in order that the same might be taken 
 by the said M B, and otner persons. 
 . Sworn,' &c., [as in % 57.] 
 
 ^86. Oomplaint for Poisoning Well. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one E D, with intent to injure and 
 kill one M B, and one or more of the members of his family, 
 and di^ ers other persons, did maliciously and feloniously mingle 
 a certain poison, called arsenic, with the waters of the well be- 
 longing to the said M B, and situate near his dwelling-house, to 
 which the said M B, and the members of his family, and divers 
 other persons of the said town, were used to resort for the pur- 
 pose of obtaining water for drinking and culinary purposes, in 
 order that the said poison, so mingled with the waters aforesaid, 
 might be taken by the said M B, and one or more of the mem- 
 bers of his family, and divers other persons. 
 Sworn, &c., [as in ^ 57.] 
 
 ^ 87. Oomplaint for Assault, with Intent to Rob, or Commit 
 
 Burglary. 
 
 County, ss: 
 A" B, of said county, being duly sworn, says,* that on the 
 day of ' instant, [or, last past,] at the town of 
 
 , in said county, one E D, did feloniously make an as- 
 sault upon the said A B, with intent to commit robbery upon 
 
548 NEW YORK JUSTICE. 
 
 the said A B, by feloniously taking the money of the said A B, 
 from his person, by violence thereto, and against his will; [or, 
 with intent to commit burglary in the dwelling-house of the 
 said A B, situate in the town of .] ' 
 
 Sworn, &c., [as in § 57.] < 
 
 ^ 88. Gorrvplaint foT Burglary. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D, did feloniously and bur- 
 glariously break and enter the dwelling-house of the said A B, 
 situate in the said town, by picking the lock of the outer door 
 thereof, [or, by breaking the fastening of one of the window 
 shutters thereof, or, by unlocking the outer door thereof by 
 means of false keys] with intent to steal, take and carry away, 
 from said dwelling-house, divers goods and chattels therein, 
 belonging to the said A B; the wife and family of the said A B, 
 being at the time. in said dwelling-house; [or, with intent to rob 
 the said A B, of his goods and chattels, in his presence and 
 against his will, by force and violence to his person, he the said 
 E D, being at the time armed with a dangerous weapon, to wit, 
 with a pistol;] and the said A B, and his family, being in the 
 said dwellingJtiouse. 
 
 Sworn, &c., [as in \ 57.] 
 
 \ 89. Complaint for Felony and Burglary in Shop. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D did feloniously and burgla- 
 riously break and enter the shop of the said A B, by [describe 
 the manner,] being within the curtilage of the dwelling house of 
 the said A. B, there situate, but not forming part thereof, [as in 
 ^ 88 to the end, omitting the allegation in regard to the family 
 being present.] 
 
 Sworn, &c., [as in § 57.] 
 
 § 90. Complaint for Burglary in entefring Store. 
 
 County, ss: 
 ■ A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , , in said county, one R D did feloniously and burgla- 
 riously break and enter the store of the said A B, there situate, 
 
THE COMPLAINT. 549 
 
 by [describe the manner,] in which goods and merchandise were 
 then kept for sale, with intent feloniously to steal, take and 
 carry away the goods and chattels of the said A B therein, to 
 wit, the goods and merchandise aforesaid, or some part or por- 
 tion thereof. 
 
 Sworn, &c., [as in § 57.] 
 
 § 91. Complaint for Constructive Burglary. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R 1) did feloniously and burgla- 
 riously break and enter the dwelling house of the said A B, sit- 
 uate in said town, by knocking at the outer door thei'eof, and 
 demanding to^speak with the said A B, and Upon the said A B 
 opening the door for that purpose, rushing and entering into the 
 said dwellins; house, with intent to rob the said A B of his 
 goods and chattels, in his presence and against' bis will, by force 
 and violence to his person; the said A B and his family being 
 at the time in said dwelling house. 
 Sworn, &c., [as in \ 57.J 
 
 § 92. Complaint for Forgery. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D did falsely and feloniously, 
 forge and counterfeit [or, alter] a certain paper writing, being 
 or purporting to be, a will, [or, deed,] by which a right or 
 interest in real or personal property was, or purported to be, 
 transferred, with intent to defraud the said A B, [or, a certain 
 paper writing, purporting to be a certificate of the acknowledg- 
 ment of the execution of a certain deed or conveyance from the 
 said A B to S T, of certain lands situate in said county, before 
 one G H, a Justice of the Peace; which said deed or conveyance 
 was of a nature, or proper, to be recorded according to law, 
 with intent to defraud the said A B; or, did falsely and felon- 
 iously make, forge and counterfeit, a certain promissory note, 
 purporting to be the promissory note of the said A B, for the 
 payment of dollars, to C D, thirty days after date, with 
 
 intent to defraud the said A B.] 
 r jSworn, &c., [as in \ 57.] 
 
550 NEW YORK JUSTICE. 
 
 § 93. Oomplaint for Passing, or Offering to Pass, Countpfdt 
 
 Bank Holes. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, \or, last part,] at the town of 
 
 , in said county, one E D did feloniously sell and exchange, 
 [or, oifer to sell and exchange,] to and with the said A B, for a 
 valuable consideration, to wit, the sum of ten dollars in silver 
 coin, \or, goods and merchandise of the value of ten dollars,] 
 two forged and counterfeit negotiable notes, commonly called 
 bank notes, purporting to be the promissory notes of, and to 
 have been issued by, the Bank, for the payment of the sum 
 
 of five dollars each; he, the said E D, well knowing the said 
 bank notes to be forged and counterfeited, and with the intent 
 to deceive and defraud the said A B. 
 'Sworn, &Cj, \as in § 57.] 
 
 § 94. OoWvpla^ for Altering or Counterfeiting Bank Notes. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one E D did feloniously counterfeit, 
 [or, counterfeit and alter,] a certain bank or promissory note, pur- 
 porting to be the promissory note of, and to be issued by, the 
 Bank, for the payment of the sum of ten dollars, [if the 
 charge is for altering a note, insert here: in such a manner as to 
 make the same resemble and purport to be a bank or promissory 
 note for the payment of the sum of one hundred dollars,] with 
 intent to defraud the said bank, or some person or persons, or 
 body politic or corporate, to this deponent unknown. 
 Sworn, &c., [as in § 57.] 
 
 % 95. Complaint for Obtaining Property by a False Token, or 
 by Falsely Personating Another. 
 
 County, ss:» 
 A B, of said county, being duly sworn, skys,* that pn the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one E D did designedly, falsely, and 
 feloniously, by color of a certain false token or writing, [or, 
 counterfeit letter,] obtain from the said A B certain goods and 
 chattels, of the value of dollars, to wit; [describe the 
 
 property;'] or, did falsely and feloniously personate and repre- 
 sent himself to be one C D, aaid did then and there, and in such 
 
THE COMPLAINT. 551 
 
 assumed name and character, obtain a certain horse of the value 
 of dollars, intended to be delivered to the said C D. 
 
 Sworn, &c., [as in § 57.] 
 
 ^ 96. Complatni for Obtaining Money, or Property, by False 
 
 Pretences. 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one E D did designedly and feloniously, 
 and by the false pretence that he, the said K D,^vas sent and 
 authorized by one C D, [or, that he owned a fam containing 
 one hundred acres, or thereabouts, situate in the town of , 
 
 in said county, free of all incumbrances; or, that he was worth 
 dollars, after the payment of all his debts and liabili- 
 ties; or, that he owned and was possessed of personal property 
 to the value of dollars, and was not a householder, or 
 
 man of family, whereby the same wouldr-be exempt from exe- 
 cution against him; or, that he was entirely free and clear from 
 all debts and liabilities, of every name and description,] demand 
 and receive [or, obtain on credit] from the said A B a large sum 
 of money, to wit, the sum of dollars, [or, goods and mer- 
 
 chandise of the value of dollars,] with the intent to cheat 
 
 and defraud the said A B. 
 Sworn, &c., [as in § 57.] 
 
 §97. Complaint for Robbery. 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one K D did violently and feloniously 
 make an assault upon him, the said A B, and, by putting 
 him, the said A B, in bodily fear and danger of his life, did th6n 
 and there steal, take, and carry away, &c., [describe property 
 tal^en.^ 
 
 § 98. Complaint for Embezzlement. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 r , in said county, one E D, being a servant, [or, clerk,] 
 
 of the said A B, and not being an apprentice, nor -within the 
 age of eighteen years, did feloniously embezzle, and convert to 
 his own ^use, without the consent of the said A B, [describe 
 property.'] belonging to the said A B. 
 Sworn, &c., [as m §57.] 
 
652 
 
 NEW YORK JUSTICE. 
 
 § 99. Complaint for Receiving Stolen Goods. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D did feloniously receive or buy 
 of one O P certain goods and chattels, to wit: [describe the prop- 
 erty,'] he, the said E D, well knowing the said goods and chattels 
 to have been feloniously stolen and taken from him, the 
 AB. 
 
 SwbrUi &cA[a« in ^ 57.] 
 
 § 100. CoTHplaintfor Perjury. 
 
 County, ss: 
 
 A B, of said county, being duly sworn, says,* that in a 
 certain action at law, tried on the day of instant, 
 
 [or, last past,] at the town of , , in said county, before 
 
 H R F, Esq., one of the Justices of the Peace of the said county, 
 in which the said A B was plaintiff, and one C D defendant, the 
 said Justice having jurisdiction over the said action, and full 
 power and authority to try the same, and to administer oaths to 
 all witnesses sworn upon such trial, one R D was produced as 
 a witness on the part of C D, the defendant aforesaid, and was 
 duly sworn to speak the truth, &c., [follow the language of the 
 oath administered:^ and that the said R D, being interrogated 
 as such witness, whether the said A B was at the dwelling house 
 of the said C D on the day of , 18 , which 
 
 inquiry was material and pertinent to the issue joined in the 
 action aforesaid, did then and there, to wit, at the time and 
 place aforesaid, falsely, wilfully, and corruptly, depose and 
 swear, that the said A B was at the dwelling house of the said 
 CD on the day of , 18 , whereas in truth 
 
 and in fact the said A B was not at the dwelling house of the 
 said C D on the said day of , 18 , whereby the 
 
 said R D did then and there, to wit, at the time and place afore- 
 said, wilfully and corruptly swear falsely, and commit wilful and 
 corrupt perjury. 
 
 Sworn, &c., [as in % 57.] 
 
 § 101. Complaint for Bigamy. 
 
 County, ss: 
 ^ A B, of ^aid county, being duly sworn, says,* that on the 
 
 day of instant, [or^ last past,] at the town of , 
 
 in said county, one R D, being then married to M D, did wil- 
 fiilly and feloniously marry and take to Tdfe, one E B; the said 
 
THE COMPLAINT. 653 
 
 E D well knowing that his said former wife, M D, was then 
 living and in full life. 
 Sworn, &c., [as in ^ 57.] 
 
 ^ 102. Complaint for Marrying the Wife of Another. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, \or, last past,] at the town of ' 
 
 in said county, one R D did knowingly, unlawfully and feloni- 
 ously marry, and take to wife, one M E, she being, then married, 
 and the wife of E E. 
 Sworn, &c., \as in \ 57.] 
 
 ^ 103. Complaint for Malicious Mischief. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of , 
 
 in said county, one E D did wilfully and maliciously administer 
 to a certain horse, the property of the said A B, a certain dead- 
 ly poison, called arsenic, by mixing the same with the food of 
 the said horse. 
 
 Sworn, &c., [as in § 57.] 
 
 § 104. Complaint for Malicious Trespass, or for Girdling Trees. 
 
 County, ss: 
 A B, of said county, beiing duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of , 
 
 in eaid county, one E D did wilfully, maliciously and unlawful- 
 ly, cut down and destroy, [or, wilfully and maliciously girdle,] 
 certain growing trees, situate on the land of the said A B, in 
 said town. 
 .^ Sworn, &c., [as in § 57.] 
 
 \ 105. Complaint for Procuring Abortion. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of , 
 
 in said county, one E D did wilfully and unlawfully administer 
 a certain drug called " savin," [or, did use and employ a certain 
 instrument called a " forceps,"] on the body of E M, she being 
 ■then pregnant, with intent thereby to procure the miscarriage 
 of the said EM. 
 ■ Sworn, &c., [as in § 57.}. 
 
654 NEW YOEK JUSTICE. 
 
 § 106. Complaint for making an Affray. 
 
 County, ss: 
 ' A B, of said county, being duly sworn, says,* that on the 
 
 day of instant, [or, last past,] at the town of , 
 
 in said county, one R D did, in a tumultuous manner, make an 
 affray, wherein- one R B was assaulted, beat and abused, bv the 
 said R D, without any just and reasonable cause. 
 Sworn, &c., \as in § 57.] 
 
 § 107. Complaint for Cruelty to Animals. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [o?-, last past,] at the town of , 
 
 in said county, one R D did cruelly and maliciously kill, [or, 
 maim; or, beat and torture,] a certain bay gelding horse, be- 
 longing to him, the said R D, [or, to one O D.] 
 Sworn, &c., [as in § 57.] 
 
 § 108. Comi)laint for a Rout or a Riot. 
 
 County, ss: , 
 
 A B, of said county, being duly sworn, says,* that on the 
 day of instant, [or, last past,] at the town of , 
 
 in said county, R D, D D, A D, &c., &c., did unlawfully, tu- 
 multuously, and riotously assemble together, to the manifest 
 terror and disturbance of the citizens then and there being, with 
 an intent mutually to assist each other against all who should 
 oppose them in the execution of a certain enterprise, to wit, the 
 assault and 'beating of one T M, with force and violence, and 
 against the peace; and being so assembled together, with divers 
 persons unknown, they did, afterwards, to wit, on the day and 
 at the place aforesaid, proceed in a noisy, riotous and tumultu- 
 ous manner, towards the house of the said T M, in order to 
 assault and beat him, the said T M; [if the assault was commit- 
 ted, add: and did then and there violently and maliciously 
 assault and beat the said T M.] 
 Sworn, &c., [as in § 57.] 
 
 § 109. Complaint f6r Selling Unwholesome Food. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on the \ 
 day of instant, [or, last past,] at the toVa of , 
 
 in said county, one R D, did knowingly, unlawfully and wicked- 
 ly, sell to one M B, a quarter of lamb, which had become taint- 
 ed and unwholesome. 
 Sworn, &c., [as in ^57.] 
 
THE COMPLAINT. 555 
 
 § 110. Oompluintfor Disturbing a Religious Meeting. 
 
 County, ss: 
 A B, of said county, being duly sworn, says,* that on tlje 
 day of instant, [or, last past,] at the town of 
 
 , in said county, one R D, did willfully and unlawfully 
 disturb, interrupt and disquiet, an assemblage of people, col- 
 lected for the purpose of religious worship, by loud and pro- 
 fane discourse, [or, by rude and riotous noises; or, by rude and 
 indecent behavior.] 
 
 Sworn, &c., [as in ^ 57.] 
 
 The Justice, after the complaint is drawn up, should read it 
 to the complainant, or he should read it himself. If the Justice 
 reads it to him, it is proper to note that fact at the foot of the 
 paper. Then it is to be signed by the complainant, and the 
 Justice should add the jurat in the usual manner. 
 
 It may appear, after the complaint is made and the witnesses 
 are examined, that there is no direct and positive proof that the 
 person complained of committed the offence, though its com- 
 mission be fully proved. It must, at all events, be clearly 
 proved that an offence has been committed, before suspicion can 
 justly attach to any person. {Wilson vs. Robinson, 6 How. 
 110. But see Campbell vs. Ewalt, 7 id. 399.) The statute 
 makes it the duty of the Justice, (or other magistrate,) if it ap- 
 pears that an offence has been committed,- to issue his warrant 
 to arrest the party accused. (2 R. S. 706, § 3.) It may hap- 
 pen, however, that the testimony does not bring home the 
 offence directly to any person, but merely raises a suspicion 
 that a particular individual committed it. Such cases are not 
 rare, and it then becomes the duty of the magistrate to judge 
 of the reasonablenesss of the suspicions. He ought not, as has 
 been before observed, to grant any warrant groundlessly, or with- 
 out such probable cause as would induce a discreet and impar- 
 tial man to suspect the party to be guilty. (1 Cliittijs Crim. 
 Law, 34.) But the examination of the prosecutor may disclose 
 such seemingly just and reasonable grounds, that the magistrate 
 m!ay well make the suspicions his own. It becomes important, 
 therefore, to state what the principal grounds or causes of sus- 
 picion are, which will justify the arrest of a supposed offender, 
 even if it should ultimately appear that he was innocent. The 
 
556 ' NEW YOBK JUSTICE. 
 
 following causes, it seems to be admitted, will justify such ar- 
 rest: {Dunlap's Justice, 25.) 
 
 1. The common fame of the country. But it seems that it 
 ought to appear by the evidence, in an action brought for such 
 an arrest, that such fame had some probable foundation, 
 
 2. The living a vagrant and disorderly life, without any visi- 
 ble means of support. 
 
 3. The being in company, at the time of the offence, with one 
 known to be an offender; or, the keeping company generally, 
 at other times, with persons of scandalous reputation, 
 
 4. The being found in such circumstances as induce a strong 
 presumption of guilt; such as, coming out of a house wherein 
 murder has been committed, with a bloody knife in one's hand; 
 or, being found in possession of any part of goods stolen, with- 
 out being able to account honestly for them. 
 
 5. The behaving in such a manner as betrays a consciousness ' 
 of guilt; as, where a man, being charged with a treason or fel- 
 ony, says nothing in reply, but seems, by his silence, to own 
 himself guilty; or, where a man accused of any such crime, 
 upon hearing that a warrant is taken out against him, absconds. 
 
 But generally none of the causes of suspicion above enumer- 
 ated will justify an arrest, where in truth no crime has been 
 committed, > (Dunlap's Justice, 25.) It has been held, how- 
 , ever, that a complaint alleging a criminal offence on information 
 and belief, without stating any facts, will give a Justice jurisdic- 
 tion to issue a warrant of arrest, although he grossly cits 
 in exercising that jurisdiction. {Campbell vs, Ewalt, 7 How. 
 399.) , 
 
 2, The Warrant. 
 
 The statute authorizing the issuing of a warrant for the arrest 
 of a person accused of crime, is in these words: "If it shall 
 appear, from such examination, that any offence has been com- 
 mitted, the magistrate shall issue a proper warrant, under his 
 hand, with or without seal, reciting the accusation, and com- 
 manding the officer to whom it shall be directed, forthwith to 
 take the person accused of having committed such offence, and 
 to bring him before such magistrate, to be dealt with according 
 to law." (2 R. S. 706, § 3; Wilson vs. Bohinson, 6 Howard's 
 Pr. R. 110.) 
 
THE WARRANT. 557 
 
 The name of the county in which the Justice resides should 
 be set forth, either in the body or in the margin of the warrant. 
 (1 Chitty's Crim. Law, 39.) The warrant must be issued in 
 the name of the people. (2 i?. /S. 275, § 8.) It is said that it 
 ought to set forth the year and the day on which it is made. (1 
 Chitty's Crim. Law, 38.) It will be sufficient, however, if the 
 warrant is dated at the end, and a reference made in the body 
 of it, showing that the complaint was made on the day of its 
 date. It must be signed by the Justice, or, as the statute ex- 
 presses it, be " under his hand." It need not generally be 
 sealed, but certain wan-ants should always have the seal, or they 
 will be void. {People vs. Holcomb, 3 Park. Or. 656.) It must 
 recite the accusation, the statute expressly requiring it: and, in 
 order that the party arrested may know the nature of the offence 
 with which he is charged, and be able to provide the proper sure- 
 ties, (Chitty's Crim. Law, 41,) it should state the offence with con- 
 venient certainty, but it need not contain the facts upon which 
 the charge made is predicated. (1 Hill, 378; Paynes&. Barnes, 
 5 Barb. 465.) There is another reason why the warrant should 
 recite the accusation. The statute, as we shall see hereafter, 
 authorizes the arrest of an offender in another county than that 
 in which the warrant was issued, and further authorizes the 
 Justice in such foreign county, who may have endorsed the war- 
 rant, to bail the offender, if the offence be not punishable with 
 death or imprisonment in a State prison. (2 R. 8. 707, k^ 5, 
 8.) It therefore becomes important to express clearly in the 
 warrant the nature of the offence, in order that the Justice be- 
 fore whom the person arrested shall be brougjit, maj' at once 
 ascertain whether he has power to bail him. The name of the 
 person accused must also appear, for he is the person whom the 
 officer is directed "to take;" and a blank must not be left for 
 his name to be filled in afterwards. (1 Chitty's Crim. Law, 39.) 
 If the command to the officer be, to arrest all persons suspected 
 of the offence, the warrant will be void for uncertainty; (id.; 
 1 Hale's P. O. 580; 4 Blacks. Comm. 291;) and it seems that 
 false imprisonment will lie against a Justice for issuing such a 
 wa,rrant. (3 Burn's Justice, 428.) If the name of the offender 
 be unknown, ^he warrant may be issued against him by the best 
 description the nature of the case will permit. (1 Chitty's Crim. 
 Law, 40.) If the name in the warrant is not the right one, or 
 
558 NEW TOBK JUSTICE. 
 
 is fictitious, the arrest will be justified if it can be shown that 
 the party arrested was known as well by one name as the other; 
 (8 East, 328; 6 Vow. 456; 7 id. 332; 1 Wend. 126; Holly ys. 
 Mix, 3 id. 350;) otherwise if it cannot be so shown. (4 id. 555; 
 Ournsey vs. Lovell, 9 id. 319; Miller vs. Foley, 28 Barb. 630.) 
 And finally, the warrant must direct the officer to bring the 
 person accused before the magistrate issuing it, to be dealt with 
 according to law. (2 R. 8. 706, § 3.) 
 
 The 26th section of the act of May 10th, 1845, as amended 
 by the 13th section of the act of December 14th, 1847, provides 
 as follows: "Whenever any criminal warrant or process shall 
 be issued by any magistrate residing out of the town or city 
 wherein the ofience shall have been committed, it shall authorize 
 the officer executing the same, to carry the person charged with 
 an ofience under this act, before any magistrate resident and 
 being in the town or city wherein such offence shall have been 
 committed, to be proceeded against according to the provisions 
 of the fifteenth section of this act; but the magistrate issuing 
 such warrant or process, shall not lose any jurisdiction over the 
 trial and proceedings against any such persons, by reason of 
 anything herein contained, nor shall such magistrate be allowed 
 any compensation for any further proceedings in any such case 
 beyond issuing such warrant or process." [Laws of 1845, chap. 
 180, ^ 26, as amended by Laws of 1847, cJiap. 455, § 13.) It 
 requires a critical reading to ascertain the true construction of 
 this provision. It is a section of an act entitled, "An act to 
 reduce the number of town officers, and town and county 
 expenses, and prevent abuses 'in auditing town and coimty ac- 
 counts," and appears to have been inserted in the act with but 
 little reference to the company in, which it is placed. It com- 
 mences with a provision requiring a magistrate who resides out 
 of the town or city wherein the offence -shall have been com- 
 mitted, in issuing a criminal warrant or process, to authorize 
 the officer executing the same to carry the person charged with 
 " an offence under this act," before any magistrate resident and 
 being in the town or city where such offence shall have been 
 committed, to be proceeded against according to "<Ae fifteenth 
 section of this act." This provision modifies the .statute before 
 cited, (2 R. 8. 706, § 3,) conferring criminal jurisdiction upon 
 Justices of the Peace, and explains how their authority in a 
 
THE WARRANT. 559 
 
 particular instance must be exercised. The act of 1845, referred 
 to, says, that the warrant issued in the case provided for by it, 
 "shall authorize" the officer executing it, to carry the person 
 charged with any offence under the act, before a magistrate resi- 
 dent and being in the town or city where such offence shall have 
 been committed. This was not required or practiced before. 
 ; It was sufficient before, as we have seen, to give the Justice 
 jurisdiction, that the offence should have been committed in his 
 county. Then he could make the warrant returnable before 
 himself. Now, however, in cases like the one given, he must 
 make the warrant returnable before a magistrate resident and 
 being in the town or city where such offence shall have been 
 committed. 
 
 But this new provision is not of universal application. It ' 
 applies only when the offence is charged " under this act" that 
 is, the act of 1845, containing the section. The question, then, 
 naturally arises what offences can be charged " under this act;" 
 or, in other words, when must the warrant be made so returnable. 
 The act itself contains no enumeration of specific offences, and 
 relates particularly to the subjects embraced in its title. It 
 does not allude to any offences, either generally or by name, 
 nor does it mention any class or grade of offences. In looking 
 further into th^ section, it will be perceived that the person 
 charged with the offence is to be proceeded against by the 
 magistrate before whom he is brought, " according to the pro- 
 visions of the fifteenth section " of the act. That section pro- 
 vides, that "Courts of Special Sessions of the peace shall be, 
 held by a single magistrate now authorized to sit as a member J 
 of a Court of Special Sessions, and all offences now triable/ 
 before such Courts, may be tried by such single magistrate,) 
 with or without a jury, at the election of the prisoner; and all/ 
 provisions of law now applicable to the powers, duties and\ 
 proceedings of such Courts, shall apply to such magistrate, and \ 
 the proceedings before him." In view, therefore, of the pro- 
 visions of this fifteenth section, the answer to the question 
 proposed seems to be this — that where the person charged can 
 be proceeded against and tried by the magistrate acting as a 
 Court of Special Sessions, or, in othier words, where his offence 
 is among those enumerated as within the jurisdiction of Courts 
 of Special Sessions, then his offence is ^' under this act" and 
 
560 NEW YORK JUSTICE. 
 
 the warrant must be made returnable as directed. If, on the 
 contrary, the offence is one not within the jurisdiction of a 
 Court of Special Sessions to try, then it would seem to be one 
 not "under this act" axxd that the Justice issuing the warrant 
 must make it returnable before himself. 
 
 The second clause of the 26th section of the act of 1845, 
 also deserves consideration. It is this: "But the magistrate 
 issuing such warrant or process shall not lose any jurisdiction 
 over the trial and proceedings against any such persons, by 
 reason of any thing herein contained." This seems to imply 
 that the Justice issuing the warrant shall retain bis jurisdiction 
 over the trial and proceedings against a person charged with 
 an offence " under this act." But, the magistrate before whom 
 the warrant is returnable, is to proceed against the person 
 charged, according to the provisions of the fifteenth section. 
 "When, then, is the Justice issuing the warrant to proceed and 
 try the offender? It cannot be that the statute contemplates a 
 concurrent exercise of jurisdiction over the same offence by the 
 two Justices; and jt is presumed that the second clause was 
 iUserted for the purpose of saving the jurisdiction of the Jus- 
 tice issuing the warrant, when, for any reason, the magistrate 
 before whom it is made returnable cannot proceed thereon. K 
 the magistrate before whom the warrant is returnable is absent, 
 then it is supposed the prisoner may be brought before the 
 Justice who- issued the warrant, and that he may proceed 
 thereon. The intention of the statute, taking the last clause 
 of the section into consideration, seems to be, that the Justice, 
 in case an offence is charged triable by a Court of Special Ses- 
 sions, must issue a warrant returnable before a magistrate of 
 the city or town in which the offence was committed; and that, 
 if he neglects so to do, he shall not receive any compensation 
 for any further proceeding in the case beyond' the issuing of 
 the warrant or process. 
 
 If a statute requires a warrant of arrest to be executed by a 
 constable of a particular town, and the Justice directs it to any 
 constable of the county, and delivers it to a constable of a dif- 
 ferent town, and he executes it, both the Justice and the con- 
 stable are liable for false imprisonment. {Reynolds vs. 0ms, 
 7 Cow. 269.) The warrant must be executed by " the officer to 
 Avhom it shall be directed," (2 R. S. 706, § 3,) and it may be 
 
THE WARRANT. 561 
 
 directed to the- sheriff of 1;he county or to any constable of the 
 county; (1 {Jhitty^s CriWi. Law, 38;) bilt it seStns that, in Eng- 
 land, if an Act of Parliament direct that a Justice shall grant 
 ■a warrant, and does not state to "whom it fehall be directed, it 
 must be directed to the constable, and not to the sheriff, unless 
 such power be giren by the act. {id.) Constables being the 
 proper officers for the purpose, the warrant may be directed to 
 any constable of the town, who has a right to execute it in any 
 town in the county, his territorial jurisdiction beiiig co-exten- 
 sive with that of the sheriff. ' {People vs. Garey, 6 Qow. 647.) 
 Forms for warrants are here given to accompany the most 
 usual complaints. Those to accompany the more unusual com- 
 plaints are not giveh, for the reason that no difficulty can be 
 experienced in preparing them from the forms inserted below. 
 It is only necessary to insert in the general form of warrant, 
 (§ 111,) the precise language of the complaint, commencing at 
 the word "that" after the * in the form of the complaint, and 
 concluding with the command to arrest, as in the general form 
 of warrant. Where the word deponent occurs in the complaint, 
 the name of the individual deposing should be inserted in full 
 in the warrant. 
 
 ^111. General Form of Warrant. 
 
 County, ss: 
 To any Constable of the said county, greeting: 
 
 Whereas, A B has made complaint, upon oath, before me, J 
 H B, one of the Justices of the Peace of the said county, on this 
 day of , 18 , that, &c., \state the offence as in 
 
 complaint .•] Therefore, the People of the State of New York 
 command you forthwith to apprehend the said R D, and bring 
 him before me, at my office, in the town of ' , , in said 
 
 county, \or, if the offence was committed in another town, and is 
 triable before a Court of Special Sessions, say: take him before 
 S T, Esq., or any other magistrate resident and being in the town 
 of ,] to be dealt with according to law. 
 
 Witness my hand, this day of , 18 . 
 
 J H B, Justice of the Peace. 
 
 36 
 
562 NEW YORK JUSTICE. 
 
 § 112. Warrant for Assault and Battery. 
 
 Town of , 
 
 » County, 
 To any* Constable of the said County, greeting: 
 
 Whereas, A B hath this day made complaint, upon oath, be- 
 fore me, J H B, one of the Justices of the Peace of the said 
 town, that on the day of , 18 , at the town of 
 
 , in said countya one C D did violently assault and beat 
 him, the said ^'B A Therefore, the People of the State of New 
 York command ymi forth"wath to apprehend the said C D, and 
 bring him before me, at my office in the said town of , 
 
 [or, change the form as in \ 111, if the offence was committed in 
 another town, and is triable before a Court of Special Session^,] 
 to be dealt with according to law. 
 
 Witness, [as in § 111.] 
 
 § 113. Warrant for Grand or Petit Larceny. 
 
 County, ss: 
 To any Constable of the said County, greeting: 
 
 Whereas, A B has made complaint, upon oath, before me, 
 J H B, one of the Justices of the Peace of the said county, that 
 on the day of ' , 18 , certain personal 
 
 property of the said A B, to wit: [describe property as in the 
 complaint, 'I of the value of dollars, or upwards, was stolen 
 
 and feloniously taken from his dwelling house in the town of 
 , in said county; and that he suspects that C D did steal 
 and take the same as aforesaid: 
 
 Therefore, &c., [as in \ 111, to tlje end.] 
 
SEKVING THE WARKANT. 563 
 
 CHAPTER ly. 
 
 ON THE EXECUTION OF THE WAEEANT. 
 
 1. Serving the Warrant. 
 
 The warrant is supposed to be directed to a constable, and if 
 so, it must be executed by him. (1 Chitty^s Crim. Law, 48.) 
 If directed to all constables generally, any constable may execute 
 it, at any place within the jurisdiction of the Justice. {People 
 vs. Oarey, 6 Cow. 647.) * 
 
 The first duty of the constable is, to see that the process is 
 regular on its face; and hence it becomes important for him to 
 know what constitutes a regular process. A process may be said 
 to be regular on its face, when it contains no intimation that 
 there was a defect of jurisdiction in the Court out of which it 
 issued, either as to the subject matter, or the person of the 
 defendant, and when the subject matter is apparently within the 
 jurisdiction of the Court. (5 Wend. 170; Dominick vs. Eacker, 
 3 Barb. 19.) If any such defects appear by the jprocess, it is 
 no protection to the officer, (id.; 12 Johns. 257; Cable \s. 
 Cooper, 15 id. 152.) If no such defects appear, the process is 
 regular on its face, and will protect the ofiicer. (10 id. 138; 5 
 Wend. 231, 240; 6 id. 367; 13 id. 379; 24 id. 485; 5 Hill, 
 440; Sheldon vs. Van BusMrh, 2 Corns. 473.) If the subject 
 matter be within the jurisdiction of the Court, but there is a 
 want of jurisdiction as to the person or place, yet unless the 
 want of jurisdiction appear by the process, the officer who exe- 
 cutes it is no trespasser. (5 Wend. 170; Dominick vs. E acker, 
 3 Barb. 18.) 
 
 (1.) Arrest. 
 
 The process, then, being regular on its face, the officer should, 
 as soon as he conveniently can, proceed with secresy to arrest 
 the party. (1 Chitty's Crim. Law, 47.) And he should notify 
 the party of his authority; {id. 51;) though it seems a regular 
 officer is not bound to exhibit his authority or process. 
 (1 Russell on Cnmes, 515; 1 Wend. 215; 10 id. 514; Bellows 
 Vs. Shannon, 2 Hill, 86.) No manual touching of the body, or 
 
664 ) NEW YORK JUSTICE. 
 
 actual force, is necessary to constitute an arrest and imprison- 
 ment. It is sufficient, if the party be within the power of the 
 officer, and submits to the arrest. (1 Wend. 215.) After the 
 party is arrested, the officer, if required, is bound to inform him 
 of the substance of the warrant or process. (Bellows vs. Shan- 
 non, 2 Hill, 86.), 
 
 The constable should carefully observe the command of the 
 warrant with respect to the person to be arrested. If he take a 
 different person from the one ;named, he will be a trespasser. 
 (1 GMtty's Grim. Law, 50.) If he arrest a person of a different 
 name from that in the warrant, he will not be protected, unless, 
 as we have seen, the person arrested be the one intended, and 
 be known as well under one name as the other. (8 East, 828; 
 6 Cow. 456; 7 id. 332; 1 Wend. 126; Guernsey vs. Lovell, 
 9 id. 319.) 
 
 The exigency of the process must be obeyed, and the person 
 accused must be taken forthwith. The process itself, however, 
 continues in force during the term of office of the magistrate 
 who granted it, (1 Ghitty^s Grim. Law, 50,) and is not vitiated 
 by any delay necessarily arising from the concealment or absence 
 of the party accused. 
 
 In making the arrest, the c.onstable, or person executing , the 
 process, has ample authority, both at common law {id. 49) and 
 by statute, (2 B. S. 441, § 80; id. 746, § 23,) to command all 
 necessary assistance; and every person wilfully and unlawfully 
 disobeying any such command is guilty of a misdemeanor. 
 {id.) In illustration of the power of those who are thus com- 
 manded to assist an officer in the executioti of process, the fol- 
 lowing case may be valuable. A sheriff, having a warrant to 
 apprehend several persons, who had riotously assembled 
 together, and committed an assault, came to the house where 
 they were assembled, aud being resistei^ and unable to make 
 the arrest, commanded A, and certain others of the bystanders, 
 to guard the house in which the persons were assembled, and 
 prevent their escape, while he went to the next town, about four 
 miles distant, to get a sufficient force to execute the warrant. 
 Under these circumstances, it was held, that A and the others 
 were bound to assist the sheriff, on his order or summons, in 
 preserving the peace and apprehending the offenders; and that 
 the sheriff was to be deemed constructively^ present, so as to 
 
SERVING THE WARRANT. 565 
 
 justify A and the others in arresting the offenders during his 
 temporary absence for the purpose of procuring further assist- 
 ance. {Goyles vs. Hurtin, 10 Johns. 85.) 
 
 If the accused be already in prison on a civil charge, the 
 proper course seems to be for the officer to leave the warrant 
 with the jailer, who, on the termination of the civil imprison- 
 ment, must send for a constable to take the party before the Jus- 
 tice; and then the same proceedings are to be had as in other 
 criminal cases. If the party is already in jail on a criminal 
 ohai'ge, and fully committed for trial, the Justice is to hear the 
 complaint, and, if it is sustained, send a warrant of detainer to 
 the jailer. Such seems to be the English practice. (1 Qhitfy'S 
 Grim. Law, 48, 49.) ' 
 
 Under certain circumstances the constable may break open 
 windows and doors, in order to make an arrest under a magis- 
 trate's warrant, {id. 54; Blacks. Qomm. 292; Foster's O. C. 
 196, 320.) But, before proceeding to that extremity, there 
 should be a notification of the officer's authority and business, 
 and a demand to enter, and a refusal, (id. 320; 1 Russell on 
 Orimes; 627.) In case of a felony actually committed, it seems 
 that the officer may not only break open the doors, but may kill 
 the felon, if he cannot otherwise be taken. (4 Blacks. Qomm. 
 292; 1 Qhitty's Grim. Law, 54.) And, if the accused leave his 
 own dwellings and fly to the house of a third person for refuge, 
 the doors of the latter may be broken open. (id. 57.) The 
 rule that every man's house is his castle, does not apply in crimi- 
 nal cases. (Foster's G. Q. 320.) And it may be regarded as 
 settled, that where a minister of justice comes armed with pro- 
 cess, founded on a breach of the peace, he may break open 
 doors, (id. 135, 320.) Where there is an affray in a house, in 
 the view or hearing of the constable, and manslaughter or 
 bloodshed is likely to ensue, he may break open doors to keep 
 the peace. (2 Hale's P. (7. 95; 1 Hawkin's P. G. 137.) So, 
 where A let a house, except one room, which he reserved for 
 himself, and occupied separately, and, the outer door of the 
 house being open, a constable broke open the door of the inner 
 room occupied by A, in order to arrest him, it was held, that 
 trespass by A would not lie against the constable. ( Williams 
 vs. iSpencer, 5 Johns. 352.) Where an affray occurs in a house 
 in the view or heaping of a constable, or where those who have 
 
566 NEW YORE JUSTICE. 
 
 been engaged in an affray in his presence fly to a house, and are 
 immediately pursued by him, and he is not suffered to enter, he 
 may break open the doors in order to suppress the afiray in the 
 first case, or to apprehend the persons committing the affray in 
 either case; and, if any officer enter into a houBe to serve any 
 process, civil or criminal, and the doors are locked upon him 
 while he is in the house, he may break them open in order to 
 regain his liberty. (Dunlap's Justice, 30.) 
 
 In respect to the time of making the arrest, it seems it may 
 be-made in the night time; and the statute authorizes it to be 
 made on Sunday. (1 E. S. 675, ^ 69; McCdlVs Con. Guide, 
 133.) 
 
 (2.) Escape. 
 
 It is remarked by Mr. Chitty, that, if a constable, having 
 arrested a party under a warrant, suffer him to go at large, 
 upon his promise to come again and find sureties, it is doubtful 
 whether he can afterwards be atrested upon the same process, 
 though it should seem, that as the public are interested in the 
 offender's being brought to justice, there can be no well founded 
 objections to such second arrest. (1 Ohitty's Grim. Law, 59.) 
 And it is certain, that if the escape be made without the con- 
 currence of the officer, the defendant may be taken as often as 
 he flies, upon fresh suit, although he were out of view, or had 
 reached another county or district. (?£?.) It is also certain, 
 that if, after a departure by permission of the constable, the 
 party return into his custody, he may lawfully detain him in 
 pursuance of his original warrant. («(?.) In New York it has 
 been decided, that after an escape from an arrest under crimi- 
 nal process, the officer is bound to retake the prisoner, whether 
 the escape be voluntary or otherwise; and that the distinction 
 between mesne and final process does not apply to criminal 
 proceedings. {Olark vs. Cleveland, 6 Hill, 344.) Under this 
 decision, it becomes the duty of the constable to retake the 
 prisoner whenever and however he may escape. But if the 
 prisoner be set at liberty on a void recognizance he cannot be 
 again taken on the same warrant. {Doyle vs. Russell, 3 Barh. 
 300.) 
 
 It seems that if the constable has apprehended the offender, 
 with or without warrant, for a felony, or a dangerous wound 
 
ENDORSING THE WAKRANT. 567 
 
 given, or to prevent the commission of a felony, if tlie party 
 fly to avoid the arrest, or break away after it has been effected, 
 and the oiEcer pursuing him happens to wound or Icill him in 
 endeavoring to prevent such escape, if the escape could not 
 otherwise have been prevented, the officer will be protected. 
 (2 R. S. 660, ^ 2; Foster's O. O. 271; Barb. Crim. Law, 539.) 
 And, if the person so^ pursued, tnrn upon the officer pursuing 
 him and kill him, it will be murder. {Foster's O. C. 272.) In 
 cases where resistance is made, the officer having authority to 
 arrest or imprison, may repel force by force, and, if death 
 ensues in the struggle, he will be justified, (id. 271.) But, 
 if the party flies from an arrest, for an offence less ithan a 
 felony, it seems that the officer is not justified in pursuing and 
 killing him. (id.) 
 
 If the prisoner escape and be retaken, the officer may take 
 him before the Justice of the county where he was first 
 arrested; for he is supposed in law to be always in custody 
 by force of the fii'st ari'cst. (^Barb. Orim. Law, 540.) If he 
 escapes or ffies before the arrest into any other county, the 
 duty of the constable is the same as though he were in another 
 county when the warrant was issued; a contingency which we 
 will now proceed to consider. 
 
 (3.) Endorsing the WaiTant. 
 
 This is familiarly termed "Backing the Warrant." The star 
 tute provides, that warrants issued by Justices of the Peace, 
 , cannot be executed out of the county within which they are 
 officers, unless endorsed in the following manner: If the person 
 against whom any warrant granted by any such Justice, shall 
 escape or be in any other county out of the jurisdiction of such 
 Justice, it shall be the duty of any Justice of the Peace within 
 the county where such offender shall be, or shall be suspected 
 to be, upon proof of the hand-writing of the magistrate issuing 
 the warrant, ' to endorse his name upon the same; and there- 
 upon, the person bringing the warrant, or any other officer to 
 whom it may have been directed, may arrest the offender in 
 the county where the warrant was envlorsed. (2 R. 8. 707, § 5.) 
 
 It will be seen that the statute onlv requires an endorsement 
 of the name of the magistrate upon ihe warrant; but as that 
 endorsement is only to be made upon jf-^oo/" of the hand-writing 
 
568 NEW YORK JUSTICE:. 
 
 of the nlagi^tr^te issuing it, it is desirable, for the sake of pre- 
 venting all question^ and mistakes, that the Justice should en- 
 dorse upon the back of the warrant a brief statement showing 
 that the hand-writing of the magistrate issuing it has befen proven 
 to tiim on oath. \ 
 
 ^ 114, Form of BapJeing or Endorsing a Warrant. 
 
 County, ss: 
 Proof upoii oath having been made before me, E W B, one 
 of the Justices of the Peace in and for the county aforesaid, that 
 the name of J H B, purporting to be subscribed to the within 
 warrant, is of the hand-writing of the said J H B, the Justice 
 of the Peace within mentioned, I do hereby authorize J L, the 
 person bringing this warrant, or any other officer to whom it is 
 directed, to execute the same within the said county of 
 
 E W B, Justice of the Peacei. 
 
 The statute further provides, that no magistrate shall be liable 
 to any indictment, action of trespass, or other action, for having 
 endorsed any warrant pursuant to the provisions of the section 
 above cited, although it shall afterwards appear that such war- 
 rant was illegally or improperly issued- {id. \ 6.) 
 
 2. Beinging up the Prisoner. 
 
 We have seen that the warrant, as a general rule, commands 
 the officer to whom it is addressed, to take the person accused 
 before the magistrate issuing it, (id. 706, § 3,) subject, however, 
 to the exception before remarked upon, {ante, p. 557,) in regard 
 to warrants for offences triable by Courts of Special Sessions. 
 But there is a provision of the statute, that in certain cases the 
 person accused may be brought before a different Justice fi"om 
 the one named in the warrant. The language of the statute is: 
 "If the offence charged in the warrant be not punishable with 
 death, or by imprisonment in a State prison, and if the person 
 arrested require to be brought before a Justice of the county ia 
 which he shall have been ai'rested, it shall be the duty of the 
 officer arresting him to carry such prisoner before a Justice of 
 the county in which he was arrested." (2 E. S. 707, ^ 8.) The 
 magistrate before whom the prisoner is brought, if the offence 
 is not punishable with death, or by imprisonment in a State 
 prison, may take from him a recognizance, with sufficient sure- 
 
BRINGING UP THE PRISONER. 569 
 
 ties, for his appearance at the next Court having cognizance of 
 the offence, to be held in the county where the offence is alleged 
 to have been committed. (2 M. S. 707, ^ 8.) If the Justice 
 let the prisoner to bail, he is to certify the fact upon the war- 
 rant, and then deliver it, together with the recognizance, to the 
 officer having charge of the prisoner, who must deliver the same, 
 without unnecessary delay, to the Clerk of the Court at which 
 the prisoner shall have been recognized to appear, (id. § 9.) 
 
 If such magistrate refuse to let to bail the person arrested, or 
 if bail is not given, the officer making the arrest must carry the 
 prisoner to the county where the warrant was originally issued, 
 an,d before some magistrate thereof; (id. 708, § 11;) that is, 
 before the magistrate issuing the warrant, or, if he be absent, 
 or his office be vacant, before the nearest magistrate of the same 
 county, (id. § 12.) And the same course must be pursued, 
 if the offence charged in the warrant be punishable with death, 
 or by imprisonment in a State prison, and therefore not bailable 
 out of the county where the warrant was issued. If, therefore, 
 an officer arrest, in a foreign county, a prisoner who is charged 
 with the commission of a felony, and take him before the Jus- 
 tice who endorsed the warrant, and he lets him to bail, and re- 
 leases him from custody, such release is equivalent to a volun- 
 tary escape, and the prisoner may be retaken under the warrant. 
 (Clark vs. Cleveland, 6 Sill, 344.) 
 
 When an officer has arrested any prisoner on a criminal charge 
 in any county, he may carry him through such parts of any other 
 county or counties as shall be in the ordinary route of travel 
 from the place where he was arrested, to the place where he is 
 to be conveyed and. delivered, under the process by which the 
 arrest was made, and such conveyance will not be deemed an 
 escape. (2 E. 8. 748, § 46.) While passing through such other 
 county or counties, the officer having such prisoner in charge is not 
 liable to arrest on civil process, and has the like power to require 
 any citizen to aid in securing such prisoner, and to retake him if he 
 escape, that he has in his own county. A refusal or neglect to 
 render such aid, is as miich an offeaee as if the officer were an 
 officer of the county where the tiid is required. (2 R. 8. 749, 
 § 47.) The prisoner, also, while being conveyed through sudh 
 county or counties, is not liable to arrest on any civil process; 
 (id. 427, § 7;) and, if he is arrested, all persons concerned in 
 
570 NEW YORK JUSTICE. 
 
 the same, with knowledge of the previous arrest, are answerable 
 as for an unlawful arrest. {Love vs. Humphrey, 9 Wend. 204.) 
 
 When the officer has arrested the prisoner, he is, as soon as 
 possible, to bring him before the proper Justice, and if he is 
 guilty of unnecessary delay, it is a breach of duty. (1 Ohitty^s 
 Oriminal Law, 59.) He may, however, detain a prisoner twelve 
 hours to find a Justice to try the cause. , {Arnold vs. Sleeves, 
 10 Wend. 514.) 
 
 When the accused is brought before the proper Justice, the 
 warrant by virtue of which the arrest shall have been made is to 
 be delivered to the Justice, with a proper return endorsed there- 
 on, by the officer making the arrest. (2 R. 8. 708, § 12.) K 
 the prisoner is arrested in a foreign county, and not held to bail, 
 the officer must return the warrant to a Justice in the county 
 where it was issued. If he is held to bail in such foreign 
 county, the warrant, certified by the Justice holding him to bail, 
 is to be delivered to the clerk of the Court at which the prisoner 
 shall have been recognized to appear, {id. 707, § 9.) The 
 officer, it is said, may keep the warrant for his own justification, 
 and need only return to the Justice what he has done in pursu- 
 ance of its commands. (1 Chitty''s Criminal Law, 60.) This 
 remark, however, does not apply, when the statute prescribes a 
 particular person to whom the warrant must be returned. 
 
 A magistrate has no authority to order a person accused of a 
 criminal offence to be committed until a subsequent day for 
 examination, without the accused being first brought before him. 
 And when a Justice late on Saturday night issued a warrant with 
 an endorsement directing that the accused should be committed 
 until Monday for examination, and the constable arrested the 
 accused the same evening, and committed him to jail without 
 first bringing him before the Justice, it was held that the Justice 
 had exceeded his authority, and that he together with the con- 
 stable and his assistants was liable in trespass. {Pratt vs. Hill, 
 16 Barb. 303.) 
 
 The prisoner having been taken by the officer before the 
 proper Justice, the next step is the examination of the complain- 
 ant, and of the witnesses produced in support of the chai'ge. 
 
EXAMINATION OF PERSONS ARRESTED. 571 
 
 CHAPTER V. 
 
 OF THE EXAMINATION OF PEESONS AEEESTED. 
 
 It must be borne in mind, that an examination, by a Justice, 
 of a charge made against a prisoner, is preliminary to a trial, 
 and is not the trial itself. No matter how clearly the commis- 
 sion of the offence may be 'proved, no matter how great the 
 magnitude of the crime, the prisoner is still entitled to a trial by 
 his peers. ( The grade of punishment attached to the crime dis- 
 closed by the examination, determines the duty of the Justice as 
 regards the final disposition of the prisoner — whether he shall 
 be committed, bailed, or tried. But, imtil this question of the 
 final disposition of the prisoner arises, the proceedings upon the 
 preliminary examination, and the duties of the Justice in con- 
 ducting it, are the same in all cases. 
 
 The examination we shall now consider, is supposed to take 
 place in a case where a crime is charged not bailable by a Jus- 
 tice of the Peace. This supposition is made, for the reason that 
 it permits the proceedings subsequent to the examination to be 
 considered in what appears to be their natural order, namely, 
 commitment, bail, and trial. The same preliminary examination, 
 however, as has been before remarked, will answer for either of 
 the three modes in which the prisoner may be disposed of ; its 
 office being to disclose the magnitude of the offence, and thus 
 determine the duty of the Justice. 
 
 The statute provides that the magistrate before whom any 
 person arrested upon a warrant shall be brought, shall proceed, 
 as soon as may be, to examine the complainant, and the wit- 
 nesses produced in support of the prosecution, on oath, in the 
 presence of the prisoner, in regard to the offence charged, and 
 in regard to any other matters connected with such charge, 
 which such ma;gistrate may deem pertinent. (2 R. 8. 708, § 13.) 
 The statute further provides, that it shall be lawful for any. 
 magistrate to whom any complaint may be made, or before 
 whom any prisoner may be brought, to associate with himself 
 any other magistrate of the same county; and the powers and 
 
572 NEW YORK JUSTIC]S. 
 
 duties conferred upon one magistrate by the statute may be exe- 
 cuted by the two magistrates so associated. (2 R. 8. 710, § 28.) 
 ' The statute requireij, also, that the examination of the com- 
 ' plainant, and of the witnesses produced in support of the prose- 
 ~'j cution, shall be taken as soon as may be. This is not interpreted, 
 ( however, so as (so preclude the magistrate from temporarily com- 
 mitting the prisoner, if such a step is demanded by the circum- 
 stances of the case. If, when the prisoner is brought before the 
 Justice, he finds that it is necessary 'to inquire further into the 
 case before he discharges or finally commits him, he may, from 
 time to time, verbally or by a written warrant, remand him into 
 custody. {Ex parte Smith, 5 Oow. 273; 1 Ohitty's Grim. Law, 
 73.) If a written warrant be used, it need not state the crime 
 of which the party is accused, (id.) It is said to be the usual 
 practice to commit from three days to, three days by a written 
 mittimus.; though, where the prisoner is remanded for a, single 
 day, it may be done by parol, {id. 74.) The time for which 
 a prisoner should be detained for further examination, is a mat- 
 ter resting in a measure in the discretion of the Justice, and he 
 ' should be careful not to act unreasonably. If he commits for 
 an unreasonable length of time, trespass will lie against him, 
 even though he acts without any improper motive. {Barb. 
 Grim. Law, 554.) He should be governed by the probability 
 of obtaining further evidence, and take into consideration the 
 time which must necessarily elapse before the attendance of the 
 witnesses can be procured. The prisoner, while awaiting such 
 further examination, may be continued in the custody of the 
 officer arresting him, or be detained in the Justice's house, or 
 'committed to some near safe place of custody till the final ex- 
 amination can be completed. {Ghitty'a Grim. Law, 74.) 
 
 The following form may be used when the prisoner is com- 
 mitted for further examination: 
 
 § 115. Warrant of Gommitment for Further Examination. 
 
 County, ss: 
 
 To the Keeper of the common jail of the said comity, greeting: 
 
 You will receive and safely keep in your custody, for further 
 
 examination, W V, who is charged before me, a Justice of the 
 
 Peace of the said county, upon the oath of D A, with larceny. 
 
 [Date.] , JHB, 
 
 Justice of the Peace. 
 
EXAMINATION OF COMPLAINANT AND HIS WITNESSES. 573 
 
 The prisoner, on being brought up for further exanaination, 
 should have read over to him all the examinations and deposi- 
 tions taken on the former examination, and then the additional 
 evidence should be taken. {^Barb. Grim. Law, 556.) 
 
 The Justice has also, as incident to the authority given him 
 by statute, a power to bring before him all persons who appear, 
 either from the statement made by the complainant, or from the 
 magistrate's own knowledge, to be material and necessary wit- 
 nesses for the prosecution; and, for this purpose, he may issue 
 his warrant to a constable, requiring him to cause such persons 
 to appear before him and give evidence. 1 GhUty's Grim. 
 Law. 76.) 
 
 1. Examination of the Complainant and his Witnesses. 
 
 If there be no necessity for committing the prisoner to await 
 a further examination, and all the material witnesses be present, 
 the Justice must proceed to take the examination on oath of the 
 complainant and his witnesses, in the presence of the prisoner. 
 (2 R. 8. 708, \ 13.) The form of the oath has already been 
 given. {Ante. 'p. 539.) The answers of the complainant and 
 of all the witnesses must be on oath, but, instead of taking the 
 examination first, and then swearing the parties to the truth of 
 the statement, they should be first sworn and then examined. 
 {People vs. Restell, 3 Hill, 300.) Before reducing the exami- 
 nation of the witnesses to writing, it it is advisable for the Jus- 
 tice to hear their narrative in the common way of relating events, 
 (1 GMtty^s Grim. Law, 77,) and afterwards to take their deposi- 
 tions as nearly as possible in their own language. (3 Hill, 300.) 
 The witnesses must be sworn, for, if they are not, the magistrate I 
 will be liable to an action for committing the prisoner, if he is 
 ultimately acquitted. {l-Ghitty's Grim. Law, 1%.) The statute 
 imperatively requires that the testimony of the witnesses shall 
 be in writing, and be signed by them. (2 R. 8. 708, § 19.) 
 
 At this stage of the proceedings, if an opportunity has not 
 been before afforded for the purpose, the prisoner should be 
 allowed a reasonable time for the employment of counsel. In 
 the zeal which is sometimes manifested to secure the punish- 
 ment of a supposed culprit, the rights which the statute intended 
 to secure Mm are entirely neglected. They should be scmpu- 
 lously guarded, and the Justice who seeks to punish an infrac- 
 
574 NEW TORK JUSTICE. 
 
 tion of the law, should recollect that a supposed offender jnay 
 be innocent, and that he has, even if guilty, a right to employ 
 counsel, and to cross-examine the witnesses who accuse him — • 
 rights which the law will not permit to be wrested from him 
 with impunity. (3 Hill, 300.) 
 
 The prisoner has the right to cross-examine the witnesses, 
 either himself or by his counsel, (1 Qhitty's Grimi Law, 79,) and 
 their, answers should be carefully written down by the magis- 
 irate. (3 Hill, 300.) 
 
 The testimony of accomplices should not be refused by a 
 Justice, as it may afford the best proof of the guilt of the ac- 
 cused that can be obtained; and if the accomplice die before 
 trial, his testimony thus taken by the magistrate can be given 
 in evidence on the trial against the prisoner. (3 id. 296; 1 
 Ohitty's Grim. Law, 603.) A Justice ought not to obtain a dis- 
 closure from an accomplice by promising or holding out the 
 hope of a pardon. 
 
 2. Examination of the Peisoner and his Witnesses. 
 
 Formerly,, says Mr. Chitty, the maxim. Nemo tenebatur pro- 
 dere seipsum, obtained at common law, and the giiilt of the pris- 
 oner was to be discovered by other testimony than his confes- 
 sions, (id. 84.) Our statute authorizing his examination is in 
 these words: "The magistrate shall then proceed," (after ex- 
 amining the complainant and his witnesses,) " to examine the 
 prisoner in relation to the offence charged. Such examination 
 shall not be on oath; and, before it is commenced, the prisoner 
 shall be informed of the charge made against him, and shall be 
 allowed a reasonable time to send for and advise with counsel. 
 If desired by the person arrested, his counsel may be present 
 during the examination of the complainant and the witnesses on 
 the part of the prosecution, and during the examination of the 
 prisoner. At the commencement of the examination, the pris- 
 oner shall be informed by the magistrate, that he is at liberty 
 to refuse to answer any question that may be put to him. The 
 answers of the prisoner to the several interrogatories shall be 
 reduced to writing by the magistrate, or under his direction. 
 They shall be read to the prisoner, who may correct or add to 
 them; and, when made conformable to what he declares is the 
 
EXAMINATION OF PRISONER AND HIS WITNESSES. 575 
 
 truth, shall be certified and signed by the magistrate." (2 H. 
 S. 708, §§ 13 to 16.) 
 
 There are two other provisions relative to the examination of 
 prisoners which it is proper to insert here: 1. " Jfothing con- 
 tained in the preceding sections," (those just quoted,) " shall be 
 construed to require any magistrate before whom a prisoner 
 , charged with a misdemeanor to be brought, to take the examin- 
 ation of such prisoner, except where such magistrate shall deem 
 it material so to do, or where such examination shall be required 
 by the prisoner." {Laws of 1830, chap. 320, § 60.) 2. " It 
 shall not be necessary for any magistrate to take the examina- 
 tion of any person brought before him, charged with any olTence 
 triable before such magistrate, in any case where such person 
 shall elect to be tried before him; and the board of supervisors 
 shall not audit or allow to any magistrate any fees or charges 
 for the arrest, examination, commitment or taking bail, of any 
 person charged with an ofience unless such magistrate shall have 
 fully complied with all the requirements of section 26, title 2, 
 chapter 2, part 4, of the Eevised Statutes." {Laws of 1845, 
 chap. 180, § 17.) The 26th section here referred to is the 61st 
 section of chapter 300 of the Laws of 1830, quoted at the close 
 of this chapter. A careful reading of these last provisions shows 
 first, that if the offence is triable by a Justice, and the prisoner 
 elect to be tried, his examination need not be taken; and second, 
 that if he is charged with a misdemeanor, his examination may 
 be dispensed with, unless the Justice shall deem it material, or 
 the prisoner shall require it. 
 
 If the prisoner does not elect to be tried, but requires to be 
 examined, or if his offence is not triable by the Justice, his ex- 
 amination should then be taken. {Son vs. People, 12 Wend. 344.) 
 At this stage of the proceedings, a reasonable time must be 
 afforded the prisoner to send for and advise with counsel, if it 
 has not been allowed before. The first duty of the Justice is to 
 caution the prisoner that he is not bound to answer any questions 
 that may be put to him, and that any admission he may make 
 may be produced against him on his trial. (2 Ji. S. 708, § 45; 
 1 Qhitty's Orim. Law, 85.) And the Justice should be careful to 
 use no improper influence to extort a confession from the prisoner, 
 for, by so doing, he may defeat the very object of his endeavors. 
 If threats or promises, or any inducements, are used and a con- 
 
576 NEW YORK JUSTICE. 
 
 fession ie thereby obtained, it cannot be received in evidence, 
 because of the uncertainty and doubt whether it was not made 
 rather from a motive of fear or interest, than from a sense of 
 guilt, {id.; 4 Blacks. Oomm. 357; 2 Rale's P. a '284.) It is 
 at the option of the prisoner either to disclose his defence, con- 
 fess his guilt, or remain silenti He himself is made the judge 
 of what it is best for him to do; and whatever he does, if to be 
 used against him thereafter, must be done voluntarily, {id.') It 
 is the duty, also, of the Justice to prevent the complainant, and 
 the officers who may have the prisoner in charge, from making 
 any attempts to obtain a confession from him. The officiousness 
 and misplaced zeal oftentimes manifested by prosecutors and 
 inferior functionaries, cannot be too severely reprimanded. If, 
 however, by means of a confession so unduly obtained, other 
 facts are brought to light, they may be proved against the party, 
 though the confession itself is inadmissible. (1 C'hitty's Grim. 
 Law, 69; Davis' Justice, 72.) 
 
 The examination is not to be an oath, (2 R. 8. 708, § 14,) 
 and, if so taken, it may be rejected, if offered against the prisoner 
 on the trial. The reason of this is, that the examination must 
 be entirely voluntary, and, therefore, the prisoner must never be 
 required to swear to it. {Davis' Justice, 74.) He should be 
 allowed to speak freely and voluntarily, and not be pressed to 
 answer, or examined or questioned like a common witness. An 
 examination so obtained has been rejected as inadmissible, 
 though nothing like a threat or promise was used. {JBa7-bour's 
 Criminal Laiv, 560.) 
 
 In a late case, {People vs. McMaJion, 15 New York P. 384,) 
 the prisoner was arrested by a constable without warrant on 
 suspicion of being the murderer of his wife, the constable took 
 him before the coroner who was holding an inquest on the body 
 of the muiidered woftian, and by whom he was sworn and exam- 
 ined as a witness. It was held that his evidence given before 
 the coroner was not admissible on the trial of the accused for 
 murder. The sworn statements of a prisoner are admitted or 
 excluded, not upon the ground of immunity or privilege, nor 
 upon consideration whether the rule forbidding a committing 
 magistrate to take the examination under oath has been violated^ 
 but on consideration whether the circumstances of the prisoner, 
 Avhen examined, were such as to render his testimony reliable. 
 
EXAMINATION OP PKIBONBR AND HIS WITNESSES. 577 
 
 If the prisoner answers the interrogatories of the magistrate 
 his answers are to be reduced to wi-iting, and then read over to 
 him; and he may correct or add to them. They are then to be 
 signed, and certified by the magistrate. (2 R. 8. 708, § 16.) 
 The signature of the prisoner is not essentially necessary. 
 (Davis' Justice, 75.) If he refuses to sign the written examina- 
 tion, and makes no acknowledgment of its truth, it cannot be 
 received in evidence. (1 PJdllips' Evidence, ljL5.) If more 
 than one person is accused, it is important that the exiaminations 
 should be separately made; otherwise an opportunity will be 
 afibrded, and probably improved, to prevent any variation in 
 the different statements. (1 Qhitty's Crim. Law, 88.) 
 
 After the examination of the prisoner is completed, his wit- 
 nesses, if he have any, must be sworn and examined, and he may 
 have the assistance of counsel in such examination." (2 R. 8. 
 708, § 17.) 
 
 It is proper to state here, that all the witnesses must be 
 excluded from the office of the Justice during the examination 
 of the prisoner, {id. § 18.) The Justice has power, also, to 
 exclude from the place where such examination is had, while 
 any one witness is being examined, those witnesses whose exam- 
 ination has not yet been had: and he may cause the witnesses 
 to be kept separate, and to be prevented from conversing with 
 each other until they shall all have been examined, {id.') 
 
 The evidence given by the several witnesses must be reduced 
 to writing by the Justice, or under his direction, and be signed 
 by the witnesses respectively, {id. 709, § 19.) 
 
 The following forms will answer for the examination of the 
 prisoner, ^f the complainant, and of the witnesses for both 
 parties. 
 
 ^ 116. Prisoner's Examination. * 
 
 County, ss: 
 The voluntary examination of W V, taken before me, J H B, 
 a Justice of the Peace, in and for the said county, on the 
 day of , 1852, the said W V being charged on oath before 
 
 me by D A, with [here set out the offence as in the complaint.) 
 The said W V, having been arrested and brought before me to 
 aiiswer said charge, and having, before the commencement of 
 his examination, been informed by me that he was at liberty to 
 refuse to answer any question that might be put to him, and 
 having been allowed a reasonable time to send for and advise 
 
 37 
 
578 NEW YORK JUSTICE. 
 
 with counsel, upon his examination now taken before me as such 
 Justice, says: Uiere insert Ihc statement of the prisoner in his 
 own language. \ 
 
 Taken before me on the day and year above written. 
 
 J H B, Justice of the Peace. 
 
 ^ 117. Examination of the Complainant and the Witnesses for 
 
 both Parties. 
 County, ss: 
 The examination of witnesses taken on oath before me, J H 
 B, a Justice of 'the Peace of the county aforesaid, on the 
 day of , 1852, upon the complaint before me of D A, 
 
 charging W V, \here insert the desqiription of the offence as set 
 forth in the complaint or warrant.^ The said W V, having been 
 arrested and brought before me to answer such charge, and 
 such examinations being taken in his presence and hearing. 
 
 • The said D A, on his oath before me, in the presence and 
 hearing of the said W V, says: \here insert the testimony of the 
 complainant.^ D A. 
 
 Taken before me the day and year first above written. 
 
 J H B, Justice of the Peace. 
 
 John Doe,, a witness on the part of the people, [or, of the 
 said W V,] on his oathpbefore me, and in the presence and 
 hearing of the said W V, says: \here insert witness's testimony.^ 
 
 John Doe. 
 Taken before me the day and year first above written. 
 
 J H B, Justice of the Peace. 
 
 The prisoner, or any other person who, during the pendency 
 of these proceedings, insults the magistrate, may be committed 
 for a contempt in the manner already pointed out. {Ante, 
 p. 526.) 
 
 The examination being fimshed, the Justice should attach 
 together the complaint, process and depositions, in the order in 
 which they are taken, and safely retain them in his keeping 
 until they can be transmitted to the clerk of the court at which 
 they are returnable as hereinafter mentioned. {Davis' Justice, 
 75.) While they remain in the Justice's keeping, he should not 
 permit them to be read by any one not properly authorized. 
 (1 cutty's Crim. Law, 88.) 
 
RBCOaNIZING THE COMPLAINANT AND HIS WITNESSES. 579 
 
 3. Discharge of the Prisoner. 
 
 If, upon the examination of the whole matter, says the statute, 
 it shall appear to the magistrate, either that no offence has been 
 committed by any person, or that there is no probable cause 
 for charging the prisoner therewith, he shall discharge such 
 prisoner. (2 E. S. 709, § 20.) 
 
 "We cannot better convey to Justices an idea of their power 
 and duty under the section above quoted, than by citing the 
 Isinguage of Mr. Justice Bayley: "A magistrate is clearly bound, 
 in the exercise of a sound discretion, not to commit any one 
 unless a, prima facie case is made out against him, by witnesses 
 entitled to a reasonable degree of credit." {Oox vs. Coleridge, 
 l,Bamewall & Cresswell, 50, 51.) The Justice, therefore, 
 should discharge the prisoner, whenever it appears either that 
 no crime has been committed, or that the reasons for suspecting 
 the prisoner are groundless. 
 
 4. Recognizing the Complainant and His Witnesses. 
 
 If it shall appear that an offence has been committed, and that 
 there is probable cause to believe the prisoner to be guilty there- 
 of, the magistrate must, by recogniz&nce, bind the prosecutor, 
 and all the material witnesses against the prisoner, to appear and 
 testify at the next Court having cognizance of the offence, and 
 in which the prisoner may be indicted. (2 R. 8. 709, § 21; 
 People vs. Mach, 1 Parher's Gr. R. 567.) 
 
 Whenever the magistrate is satisfied by due proof that there 
 is good reason to believe that any such witness will not fulfil 
 the conditions of such recognizance, unless security be required, 
 he may|)rder the witness to enter into a recognizance, with such 
 sureties as he deems sufficient, for his appearance at such Court. 
 (2 R. 8. 709, ^ 22.) Infants and married women, who are 
 material witnesses, may in like manner be required to procure 
 sureties for their appearance at such Court, (id. § 23.) If any 
 witness so required to enter into a recognizance, either with or 
 without sureties, refuses to comply with such order, it is the 
 duty of the magistrate to commit him to prison, until he com- 
 plies with the order, or is otherwise discharged according to 
 law. {id. § 24.) 
 
580 NEW YORK JXrSTICE. 
 
 § 118. Warrant cf Gommitment of a Witness refusing to enter 
 into a Recognizance. 
 
 County, ss: 
 
 To any constable of the said county, and to the keeper of the 
 common jail of the said county, greeting: 
 
 Whereas, it appears, by the examination of J D, this day 
 taken before me, J H B, Esquire, a Justice of the Peace in and 
 for the said county, upon a charge made on oath by D A before 
 me, against W V, for \here state the offence charged^ that he, 
 the said J D, is a material witness against the sAid W V in 
 regard to the said charge, and whereas the said J D, on being 
 required by me to enter into a recognizance in the sum of 
 dollars, to appear and testify at the next Court of \here insert 
 the Court, and the time and place at which it is to be held,^ on 
 behalf of the people, against the said W V, for the offence 
 aforesaid, did refuse, and still refuses, to enter into such recog- 
 nizance: These are, therefore, in the name of the people of the 
 State of New York, to comniand you, the said constable, forth- 
 with to convey and deliver into the custody of said keeper of 
 the common jail, the said J D; and you, the said keeper, are 
 hereby required to receive the said J D into your custody, in 
 the said jail, and him there safely keep until he shall enter into 
 such recognizance as aforesaid, or be otherwise dis^charged 
 according to law. 
 
 Given under my hand the day of 1853. 
 
 J H B, Justice of the Peace. 
 
 The above form can be easily varied so as to suit the case of 
 a witness examined on the complaint, but failing to give sure- 
 ties, or the case of a person not examined on the complaint, 
 but whom it may be thought proper to bind over as a witness. 
 
 All the examinations and recognizances are to be certiiied by 
 the magistrate taking them, to the Court at which the witnesses 
 are bound to appear, on the first day of the sitting thereof. 
 (2 B. 8. 709, § 26.) 
 
 It is important for the Justice to know what the jurisdiction 
 of the several Criminal Courts is, in order that he may take the 
 recognizances to appear at tho proper Court, and also that he 
 may know where to transmit the recognizances and the examin- 
 ations. 
 
 The jurisdiction of Courts of Special Sessions extends only 
 to those crimes of lesser magnitude which are particularly enu- 
 
RECOGNIZING THE COMPLAINANT AND HIS WITNESSES. 581 
 
 merated in the statute, and which will be considered hereafter. 
 {Post, part II. chap. VIII.) 
 
 If the crime with which the prisoner is charged is found in 
 that enumeration, he must, as we shall presently see, if he 
 refuses to give bail, be tried by a Court of Special Sessions; 
 and it then becomes unnecessary to take the recognizances of 
 the witnesses, or to send the examinations to the Court above. 
 The statute requires the examinations to be sent to the Court 
 at which the witnesses are bound to appear. If the witnesses 
 are not bound to appear at any Court, there is of course no 
 Court to which to send the examinations, and they must, there- 
 fore, be retained by the Justice. 
 
 Courts of Sessions have power to inquire, by the oaths of 
 good and lawful men of the county, of all crimes and misde- 
 meanors committed or triable in ^uch county, although they 
 have power to hear, determine, and punish, according to law, 
 only such crimes and misdemeanors as are not punishable with 
 death, or by imprisonment in a State prison for life. (2 E. iS. 
 208, § 5.) 
 
 Courts of Oyer and Terminer have power to inquire, by the 
 oaths of good and lawful men of the same county, of all crimes 
 and misdemeanors committed or triable in such county, and to 
 hear and determine all such crimes and misdemeanors, (id. 
 205, § 29.) 
 
 Courts of Sessions and Courts of Oyer and Terminer have 
 each, therefore, cognizance, so far as finding indictments is 
 concerned, of all crimes and misdemernors committed or tri- 
 able within the county in which they are held, and the Justice 
 must take the recognizances' to appear at the next Court in 
 which the prisoner may be indicted, whether it be a Court of 
 Sessions or a Court of Oyer and Terminer. 
 ^ The recognizances must be in writing, and be signed by the 
 persons to be charged thereby. (2 H. S. 746, § 24.) If a 
 recognizance contains, in addition to the condition required by 
 statute that the party bound will appear and testify at the next 
 Court having cognizance of the oifence, &c., the words, "as 
 well to the grand jury as the petit jury, and not depart the 
 said Court without leave," it will not be vitiated by such addi- 
 tion. [People vs. Millis, 5 Barb. 511.) In a recognizance for 
 the appearance of a witness to testify on a criminal charge, 
 
582 , NEW YORK JUSTICE. 
 
 there must, be inserted an acknowledgment of indetedriess to 
 the people, and a statement of the offence charged, or no action 
 can be maintained upon it. {People vs. Bundle, 6 Hill, 506.) 
 
 § 119. Recognizance hy Witness to give Evidence. 
 
 jf 
 
 State of New York, ) 
 County, 5 
 
 I, J D, of the town [or, city] of , in said coimty, do 
 
 acknowledge myself indebted to the people of the State of New 
 York in the sum of dollars, to be well and truly paid 
 
 if default shall be made in the condition following:* 
 
 The condition of this recognizance is such, that if the said J 
 D shall personally appear at the next Court of [here insert the 
 Court and the time and place of holding «Y,] then and there to 
 give evidence on the part of the people against W V, charged 
 with \here state the offence,^ as well to the grand jury as to the 
 petit jury, and shall not depart the said Court without leave, 
 then this recognizance to be void, otherwise of force. 
 
 J D. [l. s.] 
 
 Taken, subscribed and acknowledged ) 
 before me this day of , 1852. ) 
 
 J H B, Justice of the Peace. 
 
 ^'Jss: 
 
 § 120. Recognizance by Witness yiith Sureties. 
 
 State of New York, 
 County, 
 We, J D, N P, and J B, of the town of , m said coimty, 
 
 acknowledge ourselves to be severally indebted to the people 
 of the State of New York; that is to say, the said J D in the 
 sum of dollars, the said N P in the sum of 
 
 dollars, and the said J B in the sum of dollars, to be 
 
 well and truly paid if default shall be made in the condition 
 following:! « 
 
 Follow ^ 119/TOm the*] 
 
 All the obligors must sign, seal, and acknowledge the recog- 
 nizance.] 
 
 § 121. Recognizance by Sureties for a Witness w7io is an Infant 
 or a Married .Woman. ' 
 
 [As in § 120 to the f.J The condition of this recognizance is 
 such, that if R L, who is an infant under the age of twenty-one 
 years, [or a married^ woman,] shall personally appear [as in § 
 119 to the end.] 
 
COMMITMENT, WHEN TO BE MADE. 583 
 
 These recogiiizanoes, together with the examinations, must, 
 as has been before stated, be all certified by the Justice to the 
 Court at which tlie witnesses are bound to appear, on the first 
 day of the sitting thereof. If the Justice refuses to return them,' 
 he may be compelled to do so by a rule of Court; and, in case 
 of his disobedience to the rule, he may be proceeded against by 
 attachment. (2 B. 8. 709, §§ 26, 27.) 
 
 If the offence with which the prisoiier is charged be bailable 
 by a Justice of the Peace, or an alderman of a city, and the 
 prisoner offer sufiicieut bail, such bail may be taken, and the 
 prisoner discharged. If no bail be offered, or the offence be 
 not bailable by {i Justice, or an alderman, the prisoner must be 
 committed to prison, except in cases in which a Court of Special 
 Sessions is authorized to try him. (^Laws of 1830, chapf 320, 
 §61.) 
 
 The different duties imposed upon Justices of the Peace by 
 the provisions of the section of the statute just cited, will be 
 thcisubject of consideration in the three succeeding chapters. 
 
 CHAPTER VI. 
 
 OF COMMITMENTS. 
 
 The examination of all the parties being finished, it becomes 
 the duty of the Justice to determine what disposition he shall 
 niake of the prisoner. It will be seen by the section of the 
 statute last quoted, that the Justice is required to do one of 
 three things, either to commit to prison the party charged, or 
 to bail him, or to try him. 
 
 1. Commitment, when to be Made. 
 The question now arises — when must the piisoner be com- 
 mitted to prison? He must be so committed, either when he 
 cannot be tried by a Court of Spee^ial Sessions, or when no suffi- 
 cient bail is offered for him, or when the offence with which he 
 is charged is a felony which may be punished by imprisonment 
 
584 NEW TOEK JUSTICE. 
 
 in the State prison for a period exceeding five years; for then 
 he cannot be bailed by a Justice of the Peace, or an alderman 
 of a' city. {Laws of 1830, chap. 320, § 61.)' 
 
 The ofiences punishable with death, or by imprisonment in 
 the State prison for a period exceeding five years, and which 
 are, therefore, not bailable by a Justice of the Peace, are enum- 
 erated and defined by the statute as follows; 
 
 (1.) Crimes Funishahle with Death. 
 
 Arson in the First Degree. (2 R. 8. 656, § 1.)] This crime 
 consists in wilfully setting fire to, or burning, in the night time, 
 a dwelling house in^ which thei'e is at the time some human 
 being;, and every house, prison, jail or other edifice, -which has 
 been usually occupied by persons lodging therein at night, is 
 deemed a dwelling house of any person so lodging therein. But 
 no warehouse, barn, shed or other house, is deemed a dwelling 
 house, or part of a dwelling house, within the meaning of the 
 statute, unless the same is joined to, immediately connected 
 with, and part of a dwelling house. (2 R. 8. 651, §§ 9, 10.) 
 
 Duelling.^ Every inhabitant or resident of this State, who, 
 by previous appointment or engagement, fights a duel without 
 the jui'isdiction of this State, and, in so doing, inflicts a wound 
 upon his antagonist or any other person, whereof the person 
 thus injured dies within this State, and every second engaged 
 in such duel, is deemed guilty of murder witliin this State, and 
 may be indicted, tried and convicted in the county where such 
 death happens, {id. § 6.) 
 
 Murder.l The killing of a human being, without the author- 
 ity of law, by poison, shooting, stabbing or any other means, or 
 in any other manner, is either murder, manslaughter, or excusa- 
 ble or justifiable homicide, according to the facts and circum- 
 stances of each case. {id. 656, ^ 4.) Such killing, unless it be 
 manslaughter or excusable or justifiable homicide, as hereinafter 
 provided, is murder in the following cases: 1. When perpe- 
 trated from a premeditated design to efiect the death of the 
 person killed, or of any human being; 2. When perpetrated by 
 an act imminently dangerous to others, and evincing a depraved 
 mind, regardless of human life, although without any premedi- 
 tated design to effect the death of any particular individual; 3. 
 
CKIMES PUNISHABLE BY IMPRISONMENT. 585 
 
 When perpetrated without any design to effect death, by a per- 
 son engaged in the commission of any felony. (2 B. S. 657^ § .'i.) 
 Treason.] The following acts constitute treason against the 
 people of this State; 1. Levying war against the peoplp of this 
 State, within the State; 2. A combination of two or more per- 
 sons by force, to usurp the government of this State, or to over- 
 turn the same, evidenced by a forcible attempt made within this 
 State to accomplish such purpose; 3. Adhering to the enemies 
 of this State, while separately engaged in war with a foreign 
 enemy in the cases prescribed in the Constitution of the United 
 States, and giving to such enemies aid and comfort, in this State 
 or elsewhere. (2 B. S. 656, ^ 2.) 
 
 (2.) Grimes Punishable hy Imprisonment in a State Prison for 
 a period exceeding five years. 
 
 Abandoning Children.] If the father or mother of any child 
 under the age of six years, or*any other person to whom any 
 such child has been confided, exposes such child in any highway, 
 street, field, house or out-house, with intent wholly to abandon 
 it, he or she, upon conviction, is to be punished by imprison- 
 ment in a state prison not exceeding seven years, or in a county 
 jail not more than one year. {id. 665, § 35.) 
 
 Administering Poison.] Every person convicted of having 
 administered, or of having caused and procured to be adminis- 
 tered, any poison to any other human being, with intent to kill 
 such human being, and which shall have been actually taken by 
 such being, whereof death does not ensue, is to be punished by 
 imprisonment in a state prison for a term not less than ten years. 
 {id. § 37.) ^ 
 
 Accessories before the fact.] Every person who is a principal 
 in the second degree, in the commission of any felony, or who is 
 an accessory to a murder, before'the fact, and every person who 
 is an accessory to any felony, before the fact, is, upon conviction, 
 to be punished in the same manner prescribed by law with re- 
 sped? to principals in the first degree, {id. 698, § 6.) 
 
 Aiding prisoners to escdpe. Every person who conveys into 
 a state prison, jail, or other place of confinement, any disguise, 
 instrument, arms, or other thing proper or useful to aid any pris- 
 soner in his escape, with intent thereby to facilitate the escape 
 
586:4 . NEW TOBK JUSTICE. 
 
 of any prisoner lawfully committed, to, or detained in, such 
 prison, jail or place, for any felony whatever, or on a charge for, 
 any felony, whether such escape, be effected or attempted or not, 
 is, upon conviction, to be punished by imprisonment in a Stater 
 prison not exceeding ten years. (Laws of 1837, dia'p. ^hl^ ^ 1.) 
 
 Every person, who, by any means whatever, aids and assists 
 any prisoner lawfuUj^ detained in a State prison, or in any jail 
 or place of confinement, for a felony, or on a charge for any 
 felony, to escape therefrom, whether such escape be effected or 
 not; or who forcibly rescues any prisoner held in legal custody 
 upon any criminal charge, is, upon conviction, to be punished 
 by imprisonment in a State prison not exceeding ten years. 
 (id. \ 2.) 
 
 Every person who, by any means whatever, aids or assists any 
 prisoner lawfully committed to any jail or place of confinement, 
 in execution of any conviction, or on a charge, for any criminal 
 offence other than felony, whether such escape be effected or 
 not; or who conveys into such jail or place of confinement, any 
 disguise, instrument, arms, or other thing proper or useful to 
 facilitate the escape of any prisoner, with the intent to facilitate 
 the escape of any pi-isoner so committed, whether such escape 
 be effected, or attempted, or not, is, upon conviction, to be pun- 
 ished by imprisonment in a county jail not exceeding one year, 
 or by fine not exceeding five hundred dollars, or both such fine 
 and imprisonment, (id. § 3.) 
 
 Arson in the second degree^ Every person who wilfully sets 
 fire to or burns any inhabited dwelling house, in the day time, 
 which, if committed in the night time, would be arson ia the 
 first degree, is, upon conviction, to be adjudged guilty of arson 
 in the second degree. (2 R. 8. 666, § 1.) 
 
 Every person who wilfully sets fire to or burns, in the night 
 time, any shop, warehouse or other building, not being the sub- 
 ject of arson in the first degree, but adjoining to, or within the 
 curtilage of any inhabited dwelling house, so that such house is 
 endangered by such firing, is, upon conviction, to be adjudged 
 guilty of arson in the second degree, (id.,^ 2.) * 
 
 Arson in the third degree.'] Every person who wilfully sets 
 fire to or burns, in the day time, any shop, warehouse or other 
 building, which, if committed in the night time, would be arson 
 
CRIMES PUNISHABLE BY IMPRISONMENT. 687 
 
 in the second degree, is, upon conviction, to be adjudged guilty 
 of arson in the third degree. (2 B. S. 667,' § 3.) 
 
 Every person who wilfully sets fire to or bums, in the night 
 lime, the house of another, not the subject of arson in the first 
 or second degree;' any house of public worship, or any school 
 house; any public building belonging to the people of this 
 State, or to any county, city, town or village, or any building 
 in which are deposited the papers of any public officer; or any 
 barn or grist-mill; or any building erected for the manufacture 
 of cotton or woolen goods, or both, or paper, iron, or any other 
 fabric; or any fulling mill, or any ship or vessel; is, upon con- 
 viction, to be adjudged guilty of arson in the third degree. 
 {id. 667, § 4.) ■ 
 
 Every person who wilfully burns any building, ship of vessel, 
 or any goods, wares, merchandise, or other chattel, insured at 
 the time against loss or damage by fire, with intent to prejudice 
 such insurer, whether the same be the property of such person 
 or of any other, is, upon conviction, to be adjudged guilty of 
 arson in the third degree, (id. § 5.) 
 
 Arson in the fourth degree.] Every person, who, in the day 
 time, wilfully sets fire to or burns any dwelling house or build- 
 ing, ship or vessel, which, if committed in the night time, would 
 be arson in the third degree, is, on conviction, to be adjudged 
 guilty of arson in the fourth degree, {id. § 6.) 
 
 Every person who, in the 4ay or night time, wilfully sets fire 
 to or burns any saw-n^U, any carding machine or building con- 
 taining the same, any stack of grain of any kind, or any stack of 
 hay, not being the property of such person; any toll bridge, or 
 any other public bridge; is, upon conviction, to be adjudged 
 guilty of arson in the fourth degree, {id. § 7.) 
 
 Every person -vlho wilfully sets fire to or burns, in the day or 
 in the night, any crop of grain growing or standing in the field, 
 or any nursery or orchard of fruit trees, belonging to another; 
 or the woods in any town not belonging to himself ; or any grass 
 ■ or herbage growing, or any marshes or other lands, not belong- 
 ing to himself; is, on conviction, to be judged guilty of arson 
 in the fourth degree. (2 B. 8. 667, § 8.) 
 
 Punishment of arson in the second, third, and fourth degrees.] 
 Every person convicted of any degree of arson above specified, 
 is to be punished by imprionment in a state prison, as follows: 
 
588 NEW YOEK JUSTICE. 
 
 1. Of arson in the second degi'ee, for any term not less than 
 ten years; 2. Of arson in the third degree, for any term not 
 more than ten years, and not less than seven years; 3. Of arson 
 in the fourth degree, for any term not more than seven, and not 
 less than two years; or by imprisonment in* a cvunty jail,- not 
 exceeding one year. (2 R. 8. 667, § 9.) 
 
 Assault with deadly weapons.] Every person convicted of 
 shooting at another, or attempting to discharge any kind • of 
 fire-arms, or any air-gun, at another, or of any assault and bat- 
 tery upon another, by means of any deadly vsreapons, or by such 
 other means or force as was likely to produce death, with the 
 intent to kill, maim, ravish, or rob such other person, or in the 
 attempt to commit any burglary, larceny, or other felony, or in 
 resisting the execution of any legal process, is to be punished 
 by imprisonment in the State prison for a term not more than 
 ten years, {id. 665, ^ 36.) 
 
 Attempts to commit offences.] Every person who attempts to 
 commit an offence prohibited by law, and in such attempt does 
 any act towards the commission of such offence, but fails in the 
 perpetration thereof, or is prevented or intercepted in executing 
 the same, upon conviction thereof, is, in cases where no provi- 
 'sion is made by law for the punishment of such attempt, to be 
 punished as follows: 1. If the offence attempted to be commit- 
 ted be such as is punishable by the death of the offender, the 
 person convicted of such attempt is to be punished by impri- 
 sonment in a state prison not exceeding ten years; 2. If the 
 offence so attempted be punishable by imprisonment in a state 
 prison for four years or more, or by imprisonment in a county 
 jail, the person convicted of such attempt is to be punished by 
 imprisonment in a state prison or in a county jail, as the case 
 may be, for a term not exceeding one half the longest term of 
 imprisonment prescribed for the offence so attempted. (2 R. 8. 
 698, ^ 3.) 
 
 Bribery.] Every person who promises, offers, or gives to 
 the governor, lieutenant-governor, or to any member of the 
 Senate or Assembly of this State, after his election as such 
 member, and either before or after he has qualified and taken 
 his seat; to any commissioner of the land oflSce, or of the canal 
 fund, or any canal commissioner; to the comptroller, state 
 engineer and surveyor, secretary of state, or attorney-general; 
 
' CRIMES "PUNISHABLE BY IMPRISONMENT. 589 
 
 to any judge of any Court of Eecord, oi* to any judicial officer 
 •whatever; any money, goods, right in action or other property, 
 with intent to influence his vote, opinion, or judgment on any 
 question, matter, cause, or proceeding, which may be then pend- 
 ing, or may by law be brought before him in his official capacity, 
 is, upon conviction, to be imprisoned in a state prison not ex- 
 ceeding ten years, or to be fined not exceeding five thousand dol- 
 lars, or both, in the discretion of the Court. (2 R. S. 682, § 9.) 
 
 Every such officer who accepts any such gift, or any promise 
 or undertaking to make the same, under any agreement that 
 his vote, opinion, or judgment shall be given in any particular 
 manner, or upon any particular side of any question, matter, 
 cause, or proceeding then pending, or which may by law be 
 brought before him in his official capacity, is, upon conviction, 
 forever disqualified from holding any public office, trust, or 
 appointment, under the Constitution or laws of this State, and 
 forfeits his toffice, and is to be punished by imprisonment in a 
 state prison not exceeding ten years, "br by a fine not exceeding 
 five thousand dollars, or both, in the discretion of the Court. 
 {id. ^ 10.) 
 
 Bwglary in the First Degree.\ Every person convicted of 
 breaking into and entering, in the night time, the dwelling 
 house of another, in which there is at the time some human 
 being, with intent to commit some crime therein, either, 1. By 
 forcibly bursting or breaking the wall, or an outer door, win- 
 dow, or shutter of a window, of such house, or the lock or bolt 
 of such door, or the fastening of such window or shutter; or, 
 2. Breaking in any other manner, being armed with some dan- 
 gerous weapon ; or with the assistance and aid of one or more 
 confederates, then actually pi'eseht, aiding and assisting; or, 3. 
 - By unlocking an outer door by means of false keys, or by pick- 
 ing the lock thereof, is deemed guilty of burglary in the first 
 degree. (2 R. 8. 668, § 10.). 
 
 Burglary in the second degree.] Every person convicted of 
 breaking into any dwelling house in the day time, under such 
 circumstances as would have constituted the crime of -burglary in 
 the first degree, if committed in the night time, is deemed guilty 
 of bui'glary in the second degree, (id. § 11.) 
 
 Every person convicted of breaking into any dwelling house 
 ]!■> the night time, with intent to commit a crime, but under, 
 
590 NEW YORK JUSTICE.' 
 
 such cix-cumstances as do not constitute the offence of burglary 
 in the first degi'ee, is deemed guilty of burglary in the second 
 degree. (2 R. 8. 668, § 12.) ' < 
 
 Every person who enters into the dwelling house of another 
 by day or by night, in such manner as not to constitute any 
 burglary hereinbefore specified, with an intent to commit a 
 crime; or, being in the dwelling house of another, commits a 
 crime; and, in the night time, breaks any outer door, window, 
 or shutter of a window, or any other part of such house, to get 
 out of the same, is to be adjudged guilty of burglary in the 
 second degree, {id. § 13.) 
 
 Every person who, having entered the dwelling house of 
 another in the night time, through an open outer door or win- 
 dow, or other aperture not made bj such person, breaks any 
 inner door of the ' same house, with the intent of committing 
 any crime, is to be adjudged guilty of burglary in the second 
 degree, (id. ^14.) 
 
 Every person whoj befhg admitted into any dwelling house 
 with the consent of the occupant thereof, or who, being lawfully 
 in such house, breaks, in the night time, any inner door of the 
 same house, with thp intent of committing any crime, is to be 
 adjudged guilty of burglary in the second deree. (id. 669, 
 §15.) . 
 
 No building is deemed a dwelling house, or any part of a 
 dwelling house, within the meaning of the foregoing provisions, 
 unless the same be joined to, or immediately connected with, 
 and part of a dwelling house, (id. § 16.) 
 
 Punishment of burglary in the first and second degrees.} Buf- 
 glary in the first degree is to be punished by imprisonment in a 
 State prison, for a term not Wss than ten years; burglary in the 
 second degree, by imprisonment in a State prison for a term not 
 more than ten years, nor less than five years. (2 R. S. 669, 
 
 h 21.) 
 
 Oompelting to marry.] Every person who takes any woman 
 unlawfully, against her will, and by force, menace or duress, 
 . compels her to marry him, or to marry any other person, or to 
 be defiled, and is thereof duly convicted, is to be punished by 
 imprisonment in a State prison, not less than ten years. ' (id. 
 663, § 24.) 
 
 Ever}' person who takes any woman unlawfully, against her 
 
CRIMES PUNISHABLE BY IMPRISONMENT, 591 
 
 will, with the intent to compel her by force, menace or duress, 
 to marry him, or to marry any other j)erson, or to be defiled, 
 is, upon conviction thereqif, to be punished by imprisonment in 
 a State prison, for such term as the Court shall prescribe, not 
 less than ten years. (2 E. S. 664, ^ 25.) 
 
 Decoying children.^ Every person who, maliciously, forcibly, 
 . or fraudulently, leads, takes or carries away, or decoys, or en- 
 tices away, any child under the age of twelve years, with intent 
 to detain and conceal such child, from its parent, guardian, or 
 oth(ir person having the lawful charge of such child, is, upon 
 conviction, to be punished by imprisonment in a State prison, 
 not exceeding ten years, or by imprisonment in a county jail, 
 not exceeding one year, or by fine, not exceeding five hundred 
 dollars, or by both such fine and imprisonment, (id. 665, § 24.) 
 
 Dicellinff.] Every person who fights a duel with any deadly 
 weapon, although no death ensues, is, upon conviction to be pun- 
 ished by imprisonment in a State prison for a term not exceed- 
 ing ten years, (id. 686, § 1.) 
 
 Every person who challenges another to fight such duel, or 
 who sends or dcKvers any written or verbal message, purport- 
 ing or intending to be such challenge; or who accepts any such 
 challenge or message: or who knowingly carries or delivers any 
 such challenge or message; or who is present at the time of 
 fighting any duel with deadly weapons, either as second, aid, or 
 surgeon; or who advises, or gives any countenance or assistance 
 to such duel; is, upon conviction, to be punished by imprison- 
 ment in a State prison, for a term not exceeding seven years. 
 (2 E. S. 686, § 2.) 
 
 If any inhabitant of this State leaves the same, for the pur- 
 pose of eluding the operation of the above provisions respecting 
 duelling, or challenges to fight, with the intent of giving or re- 
 ceiving such challenge, or aids and abets in giving and receiving 
 the same, without this State, he is deemed as guilty, and is sub- 
 ject to the like punishment, as if the ofifence had been com- 
 mitted within this State, {id. § 5.) 
 
 Falsely personating others.^ Every person who falsely rep- 
 resents or personates another, and, in such assumed character, 
 1. Mimics another; or 2. Becomes bail or surety for any party, 
 in any proceeding, civil or criminal, before any Court or officer 
 authorized to take such bail or surety; or, 3, Confesses any 
 
592 NEW YORK JUSTICE. 
 
 judgment; or, 4. Acknowledges the execution of any convey- 
 ance of real estate, or of any other instrument, which by law 
 may be recorded; or, 5. Does any other act in the course of any 
 suit, pi'oceeding or prosecution, whereby the person so repre- 
 sented or personated may be made liable, in any event, to the 
 payment of any debt, damages, costs or sum of money, or his 
 rights or interests may in any manner be affected; is, upon con- 
 viction, to be punished by imprisonment in a State prison for a 
 term not exceeding ten years; (2 li. S. 676, § 48 ;) but no indict- 
 ment for falsely representing or personating another, and, in 
 such assumed character, marrying another, can be found, unless 
 upon the complaint of the injured party, and within two years 
 after the perpetration of the offence, (id. § 49.) 
 
 Every person who falsely represents or personates another, 
 and, in such assumed character, receives any money or valuable 
 property of any description, intended to be delivered to the 
 individual so personated, is, upon conviction, to be punished in 
 the samfe manner and to the same extent, as for feloniously 
 stealing the money or property so received, (id. § 50.) 
 
 Every person who fraudulently produces an infant, falsely 
 pretending it to have been born of parents whose child would 
 be entitled to a share of any personal estate, or to inherit any 
 real estate, with the intent of intercepting the inheritance of 
 any such real estate, or. the distribution of any such personal 
 property, from any persoii lawfully entitled thereto, is, upon 
 conviction, to be punished by imprisonment in a State prison, 
 not exceeding ten years. (2 H. 8. 676, § 51.) 
 
 Every person to whom an infant under the age of six years 
 is confided, for nursing, education, or any other purpose, who, 
 with intent to deceive any parent or guardian of such child, sub- 
 stitutes or produces to such parentor guardian another child in 
 the place of the one so confided, is, upon conviction, to be pun- 
 ished by imprisonment in a State prison, not exceeding seven 
 years, (id. 677, § 52.) 
 
 Forgery in the first decree.] Every person convicted of having 
 forged, counterfeited or falsely altered, 1. Any will of real or 
 personal property, or any deed or other instrument being or 
 purporting to be the act of another, by which any right or in- 
 terest in real property is, or purports to be, transferred, con- 
 veyed, or in any way changed or affected; 2. Any certificate or 
 
CRIMES PUNISHABLE BY IMPRISONMENT. 593 
 
 endorsement of the acknowledgment by any person of any deed 
 or other instrument which by law may be recorded, made, or 
 purporting to have been made, by any officer duly authorized 
 to make such certificate or endorsement; or, 3, Any certificate 
 of the proof of any deed, will, or other instrument, which by 
 law ,may be recorded, made, or purporting to have been made, 
 by any Court or officer duly .authorized to make such certifi- 
 cates, with intent to defraud, is to be adjudged guilty of forgery 
 in the first degree. (2 JR. 8. 670, § 22.) 
 
 Every person who is' convicted of having forged, counter- 
 feited or falsely altered, 1. Any certificate or other public 
 security, issued or purporting to have been issued under the 
 authority of this State, by virtue of any law thereof, or any bill 
 of credit heretofore issued by or under the authority of the 
 legislature of this State, or purporting to have been so issued, 
 by which certificate, bill or other public security, the payment 
 of any money absolutely, or upon any contingency, shall be 
 promised, or the receipt of any money, goods or valuable thing 
 shall be acknowledged; or, 2. Any certificate of any share, 
 right or interest in any public stock, created by virtue of any 
 law of this State, issued or purporting to have been issued by 
 any public officer, or any other evidence of any debt or liability 
 of the people of this State, either absolute or contingent, issued 
 or purporting to have been issued by any public officer; or, 3. 
 Any endorsement or other instrument, transferring, or purport- 
 ing to transfer, the right or interest of any holder of any such 
 certificate, public security, bill of credit, certificate of stock, 
 evidence of debt, or liability, or of any person entitled to such 
 right or interest; with intent to defraud the people of this 
 State, or any public officer thereof, or any other person, is to be 
 adjudged guilty of forgery in the first degree. (2 B. S. 670, 
 §23.) 
 
 Forgery in the second degree.\ Every person who forges or 
 counterfeits the great or privy seal of this State; the seal of any 
 public office authorized by law; the seal of any Court of Rec- 
 ord, including surrogates' seals; or the seal of any body corpo- 
 rate, duly incorporated by or under the laws of this State; or, 
 who falsely makes, or forges, or counterfeits any impression 
 purporting to be the impression of any such seal, with intent to 
 38 
 
594 NEW YORK JUSTICE, 
 
 defraud, is, upon conviction, to be adjudged guilty of forgery 
 in the second degree. (2 B. S. 671, § 24.) 
 
 Every person who, with intent to defraud, falsely alters, de- 
 stroys, corrupts, or falsifies, 1. Any record of any will, convey- 
 ance, or other instrument, the record of which is by law evidence; 
 or, 2. Any record of any judgment in a Court of Record, or 
 any enrolment of a decree of a Cpurt of Equity; or, 3. The re- 
 turn of any officer, Court, or tribunal, to any process of any 
 Court, is' upon conviction, to be adjudged guilty of forgery in 
 the second degree, {id. § 25.) 
 
 Every person who falsely makes, forges, or alters any entry 
 in any book of records, or any instrument purporting to be any 
 record or return, before specified, with intent to defraud, is, 
 upon conviction, to be adjudged guilty of forgery in the second 
 degree, {id. § 26.) 
 
 If any officer authorized to take the proof or acknowledgment 
 of any conveyance of real estate, or of any other instrument 
 which by law may be recorded, wilfully and falsely certifies 
 that any such conveyance or instrument was acknowledged by 
 any party thereto, when in truth no such acknowledgment was 
 made; or that any such conveyance or instrument was proved, 
 when in truth no such proof was made, he is, upon conviction, 
 to be adjudged guilty of forgery in the second degree. (2 R. 
 >S'. 671, § 27.)^ 
 
 Every person convicted of having counterfeited any of the 
 gold or silver coins, which are at the time current by custom 
 or usage within this State, is to be adjudged guilty of forgery 
 in the second degree, {id. § 28.) 
 
 Every person convicted of, 1. Having made, or engraved, or 
 having caused or procured to be made or engraved, any plate 
 in the form or similitude of any promissory note, bill of ex- 
 change, draft, check, certificate of deppsit, or other evidence of 
 debt, issued by any incorporated bank in this State, or by any 
 bank incorporated under the laws of the United States, or of 
 any state or territory thereof, or under the laws of any foreign 
 country or government, without the authority of such bank; 
 or, 2. Having or keeping in his custody or possession any such 
 plate, without the authority of such bank, with the intent of 
 using or having the same used for the purpose of taking there- 
 from any impression to be passed, sold, or altered; or, 3, 
 
CRIMES PUNISHABLE BY IMPRISONMENT. 595 
 
 Having or keeping in his custody or possession, -without the 
 authority of such bank, any impression taken from any such 
 plate, with intent to have the same filled up and completed for 
 the purpose of being passed, sold, or altered; or, 4. Having 
 made or caused to be made, or having in his custody or pos- 
 session, any plate, upon which shall be engraved any figures or 
 words which may be used for the purpose of falsely altering 
 any evidence of debt issued by any such incorporated bank, 
 with the intent of having the same used for such purpose, is to 
 be adjudged guilty of forgery in the second degree. (2 B. JS. 
 671, ^ 29.) 
 
 Every person convicted, 1. Of having sold, exchanged or 
 delivered, for any consideration, any forged or counterfeited 
 promissory note, check, bill, draft or other evidence of debt or 
 engagement, for the payment of money absolutely, or upon any 
 gontingency, knowing the same to be forged or counterfeited, 
 with the intention to haVe the same uttered or passed; or, 2. Of 
 having oflered any such note or other instrument for sale, ex- 
 change, or delivery, for any consideration, with the like knowl- 
 edge, and with the like intention; or, 3. Of having received any 
 such note or other instrument, upon a sale, exchange, or delivery, 
 for any consideration, with the like knowledge, and with the like 
 intention: is to be adjudged guilty of forgery in the second 
 degree. (2 R. 8. 672, § 32.) 
 
 Every person who has in his possession any forged, altered or 
 counterfeit negotiable note, bill, draft or other evidence of debt, 
 issued, or j^urporting to have been issued, by any corporation or 
 company duly authorized for that purpose by the laws of the 
 United States, or of this State, or of any other State, "government 
 or country, the forgery of which is declared by law to be punish- 
 able, knowing the same to be forged, altered or counterfeited, 
 with intention to utter the same as true or as false, or to causfe 
 the same to be so uttered, with intent to injure or defraud, is, 
 upon conviction, to be subject to the punishment prescribed for 
 forgery in the second degree, {id. 674, § 36.) 
 
 Punishment of forgery in the first and second degrees.^ Per- 
 sons convicted of the difierent degrees of forgery are to be 
 punished as follows: 1. Those convicted of forgery in the first 
 degree, by imprisonment in a state prison for a term not less 
 than ten years; 2. Those in the second degree, by the like 
 
596 NEW YORK JUSTICE. 
 
 imprisonment, not more than ten, and not less than five years. 
 (2 R. 8. 675, § 42.) 
 
 Incest.^ Marriages between parents and children, including 
 grand-parents and grand-children of every degree, ascending 
 and descending, and between brothers and sisters of the half, 
 as well as of the whole blood, are declared to be incestuous and 
 absolutely void; and this includes illegitimate, as well as legiti- 
 mate, children and relatives, (id. 139, § 3.) 
 
 Persons within the degrees of consanguinity, within which 
 marriages are declared to be incestuous and void, who inter- 
 marry with each other, or who commit adultery or fornication 
 with each other, are, upon conviction, to be punished by impri- 
 sonment in a, state prison for a term not exceeding ten years. 
 {id. 688, % 12.) 
 
 Kidnafping.^ Every person who, without lawful authority, 
 forcibly seizes and confines any other, or inveigles or kidnap j 
 any other, with intent either, 1. To cause such other person to 
 be secretly confined or imprisoned in this State against his will; 
 or, 2. To cause suph other person to be sent out of this State 
 against his will; or, 3. To cause such person to be sold as a slave, 
 or any way held to service against his will, is, upon conviction, 
 to be punished by imprisonment in a state prison not exceeding 
 ten years, (2 R. S._ 664, § 28.) 
 
 Every person convicted of having been an accessory after the 
 fact, to any kidnapping or confinement above prohibited, is to 
 be punished by imprisonment in a state prison, not exceeding 
 six years, or in a county jail, not exceeding one j^ear, or by a 
 fine, not exceeding five hundred dollars, or by both such fine 
 and imprisonment, (id. 665, § 31.) 
 
 Every person who sells, or in any manner transfers for any 
 term, the services or labor of any black, mulatto, or other person 
 of color, who has been forcibly taken, inveigled or kidnapped 
 from this State to any other State, place or country, is, upon 
 conviction, to be punished by imprisonment in a state prison not 
 exceeding ten years, or in a county jail, not exceeding one year, 
 or by fine, not exceeding one thousand dollars, or by both such 
 fine and imprisonment, (id. § 32.) 
 
 Larceny.^ Every person convicted of the felonious taking 
 and carrying away the personal property of another, of the value . 
 of more than twenty-five dollars, is to be adjudged guilty of 
 
CRIMES PUNISHABLE BY IMPRISONMENT. 59 1 
 
 grand larceny, and to ]t)e imprisoned in a State prison for a 
 term not exceeding five years. (2 li. S. 679, § 63.) Or convicted 
 the second time of taking and carrying away property less than 
 $25. (2 B. S. 700, § 9; People vs. Omar, 1 Park. Or. 645.) 
 
 If such larceny be committed in u dwelling house, or in a ship 
 or other vessel, the imprisonment of the offender may be 
 increased by the Court, three years in addition to the term above 
 prescribed, (id. § 64.) If such larceny be committed by steal- 
 ing in the night time, from the person of another, the offender 
 may be ipunished by imprisonment in a state prison not exceed- 
 ing ten years, (id. § 65.) In the last two cases, where the 
 offender may be punished by imprisonment in a state prison for 
 a period exceeding five years, the Justice cannot take bail, but 
 must commit the prisoner. 
 
 Manslaughter. '\ The killing of one human being, by the act, 
 procurement, or omission of another, in cases where such killlrig 
 is not murder according to the provisions of the sections of the 
 statute before quoted, (ante, p. 584,) is either justifiable, or ex- 
 cusable homicide, or manslaughter. 
 
 Such homicide is justifiable, when committed by public offi- 
 cers and those acting by their command in their aid and assist- 
 ance, either, 1. In obedience to any judgment of a competent 
 Court; or, 2. When necessarily committed in overcoming actual 
 resistance to the execution of some legal process, or to the dis- 
 charge of any other i legal duty; or, 3. When necessarily com- 
 mitted in retaking felons who have been rescued, or who have 
 escaped; or, 4. When necessarily committed in arresting felons 
 fleeijig from justice. 
 
 Such homicide is also justifiable, when committed by any per- 
 son, in either of the following cases: 1. When resisting any 
 attempt to murder such person, or to commit any felony upon 
 him or her, or upon or in any dwelling house, in which such 
 person shall be; or, 2. When committed in the lawful defence> 
 of such person, or of his or her husband, wife, parent, child, 
 master, mistress or servant, wRn there is a reasonable ground 
 to apprehend a design to commit a felony, or to Ah some great 
 personal injury, and there is imminent danger of such design 
 being accomplished; or, 3. When necessarily committed in at- 
 tempting, by lawful ways snA me5.ns to apprehend,- any person 
 
598 NEW YORK JUSTICE. 
 
 for any felony committed; or in lawfully suppressing any riotj 
 or in lawfully keeping and preserving the peace. 
 
 Such homicide is excusable, when committed, 1. By accident 
 or misfortune, in lawfully correcting a child or servant; or in 
 doing any other lawful act, i)y lawful means; with usual and 
 ordinary caution, and without any unlawful intent; or, 2. By 
 accident or misfortune, in the heat of passion, upon any sudden 
 and sufficient provocation, or upon a sudden combat, without 
 any undue advantage being taken, and vdthout any dangerous 
 weapon being used, /and not done in a cruel or unusual manner. 
 (2 E. S. 660, 661, §§ 1 to 4.) 
 
 Manslaughter in the first degree.^ The Idlling of a human 
 being, without a design to effect death, by the act, procurement 
 or culpable negligence of any other, while such other is en- 
 gaged, 1. In the perpetration of any crime or misdemeanor not 
 amounting to felony; or, 2. In an attempt to perpetrate any 
 such crime or misdemeanor, in cases where such killing would 
 be murder at the common law, is deemed manslaughter in the 
 first degree. (2 E. S. 661, § 6.) 
 
 Every person deliberately assisting another in the commis- 
 sion of self-murder, is deemed guilty of manslaughter in the 
 first degree, {id. § 7.) 
 
 The wilful killing of an imborn quick child, by an injury to 
 the mother of such child, which would be murder if it resulted 
 in the death of such mother, is deemed manslaughter ia the first 
 degree (id. § 8.) 
 
 Manslaughter in the second degree.^ Every person who ad- 
 ministers to any woman pregnant with a quick child, or pre- 
 scribes for any such woman, or advises or procures any such 
 woman to take any medicine, drug or substance whatever, or 
 uses or employs any instrument or other means with intent 
 thereby to destroy such child, unless the same is necessary to 
 preserve the life of such mother, is in case the death of such 
 child, or of such mother, be thereby produced, deemed guilty 
 of manslaughter in the secondWegree. (Laws of 1846, chap. 
 
 22, U-) ' ■ 
 
 The killing of a human being, without a design to effect death, 
 in a heat of passion, but in a cruel and unusual manner, unless 
 it be committed under such circumstances as to constitute 
 
CRIMES PUNISHABLE BY IMPRISONMENT. 599 
 
 excusable or justifiable homicide, is deemed manslaughter in 
 the second degree. (2 E. S. 661, § 10.) 
 
 ,Every person who unnecessarily kills another, either, 1. While 
 resisting an attempt by fiich other person to commit any felony, 
 or to d,o any other unlawful act; or, 2. Aftei- such attempt has 
 failed, is deemed guilty of manslaughter in the second degrep. 
 {id, ^11.) 
 
 Punishment of manslaughter in the first and second degrees.^ 
 Persons convicted of manslaughter in tfee first or second degrees, 
 are to be punished by imprisonment in a state prison, as follows: 
 1. Persons convicted of manslaughter in the first degree, for a 
 term not less than seven years; 2. If convicted of manslaughter 
 in the second degree, for a term not less than four, and not 
 more than seven years. (2 R. 8. 662, § 20) 
 
 MayhemJ\ Every person who, from premeditated design, 
 evinced by lying in wait for the purpose, or in any other man- 
 ner; or, with intention to kill, or commit any felony; 1. Cuts 
 out or disables the tongue; or, 2. Puts out an eye; or, 3. Slits 
 the lip, or slits or destoys the nose; or, 4. Cuts ofi' or disables 
 any limb or member, of another, on purpose, is, upon conviction 
 thereof, to be imprisoned in a state prison, for such term as the 
 Court shall prescribe, not less than seven years, {id. 664. § 27.) 
 
 Perjury, and s^ibornation of petjury.'\ Every person who 
 wilfully and corruptly swears, testifies or affirms falsely, to 
 any material matter, upon any oath, affirmation, or declaration, 
 legally administered, 1. In any matter, cause or proceeding 
 depending in any Court of law or equity, or before any officer 
 thereof; 2. In any case where an oath or affirmation is required 
 by law, or is necessary for the prosecution or defence of any 
 private right, or for the ends of public justice; 3. In any mat- 
 ter or proceeding before any tribunal or officer created by the 
 Constitution or by law, or where any oath' may be lawfully 
 required by any judicial, executive or administrative officer; is, 
 upon conviction, to be adjudged guilty of perjury, and cannot 
 thereafter be received as a witness to be sworn, in any matter 
 or cause whatever, until the judgment against him be reversed. 
 {id. 681, § 1.) 
 
 Persons convicted of perjury, are to be punished by impri- 
 sonment in a state prison, as follows: 1. For perjury committed 
 on the tri^l of any indictment for a capital offence, or for any 
 
600 NEW YORK JUSTICE. 
 
 other felony, for a term not less than ten years; 2. For perjury 
 committed on any other judicial trial or inquiry, or in any other 
 case, for a term not exceeding ten years. (2 R- S. 681, § 2.) 
 
 Every person who unlawfully and ^corruptly procures any 
 witness, by any means whatsoever, to commit any wilfiil and 
 corrupt perjury, in any cause, matter or proceeding, in or con- 
 cerning which such witness is legally sworn and examined, is 
 to be adjudged guilty of subornation of perjury, {id. ^ 3.) 
 
 The consequences of a subornation of perjury are the same 
 as those above declared upon a conviction of perjury; and 
 every person convicted oif subornation of perjury, is to be 
 punished by imprisonment in a state prison, for the same terms 
 as hereinbefore prescribed upon a conviction for the perjurj- so 
 procured, (2 B. S. 681, § 4.) 
 
 Poisoning food, springs, dtc] Every person who mingles 
 any poison with any food, drink or medicine, with intent to 
 kill or injure any human being; or who wilfully poisons any 
 spring, well or reservoir of water, is upon conviction, to be 
 punished by imprisonment in a state prison not exceeding ten 
 years, or in a county jail not exceeding one year, or by fine not 
 exceeding five hundred dollars, or by both such fine and impri- 
 sonment, (id. 655, § 37.) 
 
 Bape.] Every person convicted of rape, either, 1. By car- 
 nally and unlawfully knowing amy female child under the age 
 of ten years; or, 2. By forcibly ravishing any woman of ten 
 years or upwards, is to be punished by imprisonment in. a state 
 prison, not less than ten years, (id. 663, § 22.) 
 
 Bobbery in the first degree.] Every person convicted of 
 feloniously taldng the personal property of another from his 
 person, or in his presence, and against his will, by violence to 
 his person, or by putting such person in fear of some imme- 
 diate injury to his person, is to be adjudged guilty of robbery 
 in the firsf degree, {id. 677, § 55.) 
 
 Bobbery in the second degree.] Every person convibted of 
 feloniously taking the pei'sonal property of another in his 
 presence, or from his person, which has been delivered or 
 sufiered to be taken through fear of some injury to his person 
 or property, or to the person of any relative or member of his 
 family, threatened to be inflicted Jit some diflTerent time, which, 
 fear has been produced by the. threats of the person so receivr 
 
 I 
 
CRIMES PUNISHABLE , BY IMPRISONMENT. 601 
 
 ing or taking the property, is to^be adjudged guilty of robbery 
 in the second degree. (2 i?. /S'. 678, § 56.) 
 
 Punishment for robber'y in the first and second degrees.^ 
 Every person convicted of robbery in the first degree is to be 
 punished by imprisonment in a State prison, for a term not less 
 than ten years; and every person convicted of robbery in the 
 second degree is to be punished by a like imprisonment, for a 
 term not exceeding ten years. (2 R. S. 678, § 57.) 
 
 /Second offences.^ If any person convicted of any ofience pun- 
 ishable by imprisonment in the State prison, is discharged, 
 either upon being pardoned, or upon the expiration of his sen- 
 tence, and is subsequently convicted of any ofience committed 
 after such pardon or discharge, he is to be punished as follows: 
 1. K the ofience of which such person is subsequently convicted 
 be such that, upon a first conviction, an offender would be pun- 
 ishable by imprisonment in a State prison for any term exceed- 
 ing five years, then such person is to be punished by imprison- 
 ment in a State prison for a term not less than ten years; 2. If 
 such subsequent offence be such that, upon a first conviction, 
 the offender would be punishable by imprisonment in a State 
 prison for five years or any Ijess term, then the person convicted 
 of such subsequent offence is to be punished by imprisonment 
 in a State prison for a term not exceeding ten years, (id. 699, 
 §8.) 
 
 Every person convicted of petit larceny, or of an attempt to 
 conunit an offence, which, if perpetrated, would be punishable 
 by imprisonarent in a state prison, and pardoned or otherwise 
 discharged, who is subsequently convicted of any offence com- 
 mitted after such pardon or dischai'ge, is to be punished as fol- 
 lows: 1. If such subsequent offence be such that, upon a fii'st 
 convictioii, the offender would be punishable by imprisonment 
 in a state prison for life, at the discretion of the Court, then 
 such person is to be sentenced to imprisonment in such prison 
 during life; 2. If such subsequent offence be such that, upon a 
 first conviction, the offender would be punishable by imprison- 
 ment in a state prison for any term less than for life, then such 
 person is to be sentenced to imprisonment in such prison for 
 the longest term prescribed upon a conviction for such first 
 offence, (id. § 9.) 
 
 S^domy.^ Every person convicted of the detestable and 
 
602 NEW YOEK JUSTICE. 
 
 abominable crime against nature, committed with mankind or 
 with a beast, is to be punished by imprisonment in a state prison 
 for a term not more than ten years. (2 B. S. 689, § 20.) 
 
 The Justice, upon ascertaining that he cannot take bail in the, 
 case, or that the prisoner is unable to give bail, naturally in- 
 quires to what prison he must commit the prisoner, and by what 
 process. These inquiries will be the subject of consideration 
 in the remaining portion of this chapter. 
 
 2. 1*0 WHAT Prison. 
 
 The statute does not designate any particular prison or jail 
 to which the Justice must commit the prisoner, but merely re- 
 quires that he must be committed to prison. There can be no 
 doubt that the prison intended by the statute, is the common 
 jail of the county in which the offence is committed. The stat- 
 ute relative to county jails contains the following provision: 
 " The common jails in the several counties of this State shall be 
 kept by the ^sheriffs of the counties in which they are respect- 
 ively situated, and shall be used as prisons for, among other 
 things, ,the detention of persons charged with crimes, and com- 
 mitted for trial." (Laws of 1847, chap. 460, ^ 1.) There can 
 be no doubt, then, that the prisoner is to be committed to the 
 common jail of the county. If the prisoner has been arrested 
 upon an endorsed warrant, he must, unless bail be given in 
 some other county than the one from which the warrant origin- 
 ally issued, be brought before the magistrate by whoui the war- 
 rant was issued. The magistrate endorsing the warrant, has, as 
 we have before seen, [ante, jp. 569,) no power to commit or try 
 the offender, but can only, in certain cases, admit him to bail. 
 (1 Chitty's Orim. Law, 108.) In half-shire counties, as t^e 
 county of Seneca, where there are two common jails, tjie magis- 
 trate should, direct the prisoner to be committed to the neai-est 
 jail, naming the place where it is located. Otherwise it is at 
 the option of the officer having charge of the prisoner to con- 
 vey him to either prison, and he will probably select the more 
 remote one for the sake of increasing his mileage. (Davis' Jus- 
 tice, 112.) 
 
 3. The Mittimus. 
 
 Great care should be exercised by the Justice in drawing the 
 process for the commitment of the pi'isoner, or as it is familiarly 
 
THE MITTIMUS. 603 
 
 termed the mittimus. This mittimus is the warrant which au- 
 thorizes the jailer to receive and detain the prisoner in his 
 custody; {Davis' Just. 104;) and it is said, that though it need 
 not be drawn with the same precision as an indictment, yet it 
 ought to be framed with great accuracy, or the party may, 
 though prosecuted for a felony, be discharged out of custody, 
 or, if he escape, the officer may not be answerable. (Ohitty's 
 Grim. Law, 109.) If the warrant of commitment be defective, 
 the prisoner will not, however, be, for that reason, finally dis- 
 charged; but, if a crime be made out by the depositions, 
 (which, as we have seen, are to be returned to the Court at 
 which the witnesses are bound to appear,) the course is to dis- 
 charge the prisoner pro forma, and then remand him upon a 
 special order. {Ex parte Taylor, 5 Cow. 39.) 
 
 The commitment must be in writing, and be signed and sealed 
 by the magistrate, and have apparent upon its fafce the time and 
 place of making it, and the official character of the magistrate. 
 (1 Ohitty's Crim. Law, 109; Barh. Orim. Law, 568; Davis' 
 Justice, 106.) A Justice may verbally order a party to be 
 detained a reasonable time, until he can prepare a mittimus. (2 
 Hale, 122.) 
 
 It is stated by Mr. Chitty, that the mittimus may be made 
 either in the King's name, or in that of the Justice awarding 
 it, but the latter is the more usual. (1 Chitty's Orim. Law, 109.) 
 There seems no propriety or authority for issuing a mittimus in 
 the name of a Justice. He is simply the instrument of the 
 people of the State, elected by them to enforce the laws which 
 from time to time they enact, and whatever the Justice does in 
 his official capacity ought to be done in their name. {Davis' 
 Justice, 107.) Besides, the statute provides, that all process 
 shall be in the name of the people of this State, except when 
 otherwise p];ovided by law; (2 R. S. 275, § 8;) and though it 
 may be that this has reference to civil process only, yet the 
 argument from analogy holds good, and it is certainly more 
 proper to issue the warrant in the name of the people from 
 whom the authority to issue it emanates, than in the name of 
 the person upon whom that authority is conferred. 
 
 The mittimus should contain both the Christian name and 
 surname of the prisoner, if they are known. If they are not 
 known, it will be sufficient to describe the person J)y his appa- 
 
604 NEW YOEK JUSTICE. 
 
 rent age, stature, complexion, color of the hair, <fec.,'and to add 
 that he refuses to tell his name. (1 CMtty's Grim. Law, 110; 
 1 Burns' Justice, 276; Davis' Justice, 107.) 
 
 The mittimus ought to state that the party has been charged 
 upon oath. In other words, it must set forth a good cause for 
 commitment, be expi-essed with certainty, and appear to be sup- 
 ported by oath. (3 Oranch, 448; People vs. Rhoner, 4 Park. 
 Or. 166.) There may be an exception to this rule in the case 
 of a Commitment made by a magistrate immediately after see- 
 ing a crime perpetrated; in which case an oath does not appear 
 to be essentially requisite. It is not necessary, however, that 
 the evidence of the charge made against the prisoner should be 
 stated in the commitment. {Kinff vs. Wilkes, 2 Wilson, 158.) 
 
 It is necessary, also, that the mittimus should set forth clearly 
 the particular species of crime with which the prisoner is 
 charged. (1 GMtty's Orim. Law, 110; Barb. Grim. Law, 570; 
 1 Burnis Justice, 276; Davis' Justice, 108.) Therefore, if the 
 commitment be for a felony, it ought not to be generally for a 
 felony, but it should express the special nature of the felony, 
 briefly; as, "for a felony in causing the death of A B," or, 
 " for burglary in brealdng into the house of A B." The reason 
 is, that it may appear, on the return of a habeas corpus, whether 
 it be a felony or not. (id!) If no cause be shown in the com- 
 mitment, and the prisoner escape, it is said the officer is not 
 answerable. (1 Ghitty's Grim, Law, 111.) It is not necessary, 
 however, to allege in the mittimus that the offence was feloni- 
 ously committed; it is sufficient if it appear upon its face that 
 the charge was one of felony, {id. 113.) There is another 
 reason why the commitment should show the cause for which 
 the prisoner is committed. The statute requires the keeper of 
 every county jail to present to every Court of Oyer and Termi- 
 ner, and to every Court of Sessions held in this county, at the 
 opening of such Court, a calendar, stating the name of every 
 prisoner detained in such jail; the time when such prisoner was 
 committed, and by virtue of what precept or process, and the 
 cause of detention of every such prisoned-. {Laws of 1847, 
 cMp. 460, §'25.) The keeper of the prison can oAly ascertain 
 these particulars from the mittimus, which should, for that if for 
 no other reason, be so precisely drawn that the keeper may 
 make out and return his calendar in compliance with the re- 
 
THE mittimus: 605 
 
 quirements of the statute. {Davis' Justice, 109.) There can 
 be no objection to incorporating in the mittimus the body of the 
 complaint, as originally preferred by the complainant, if the 
 charge has been made out by the evidence. "Where the offence 
 is created by statute, the Justice should pursue the terms of the 
 statute in describing it. {Barb. Grim. Law, 571.) 
 'i The mittimus should point out the ;place of imprisonment, 
 or the prison to which the prisoner is to be committed, as has 
 been before remarked. {Ante, p. 603.) Where the nearest 
 jail, (if there are two in the same county,) is not sufficiently 
 secure, the prisoner should be sent to the more distant one; but 
 of that sufficiency the magistrate, and not the officer conveying 
 the prisoner, should be the judge. 
 
 If the county jail is unsafe, it is the duty of the County Court, 
 by an instrument in writing, to be filed in the county clerk's 
 office, to designate the jail of some contiguous county to be used 
 for the confinement of prisoners, and, in such case, the Justice 
 must direct the mittimus to the keeper of the jail in the county 
 designated. {Laws of 1847, chap. 280, § 29.) 
 
 The mittimus must have a proper and apt conclusion. If the 
 offence is not bailable by a Justice, then the language of the 
 conclusion is: to detain the prisoner "until he shall be dis- 
 charged according to law." If the offence is bailable by a Jus- 
 tice, and the prisoner is committed for want of sureties, then the 
 language of the conclusion is: " to keep the prisoner in his " (the 
 keeper's) " custody, for want of sureties, or until he shall be dis- 
 charged by due course of law." (1 Ohitty^s Qrim. Law, 114; 
 1 BurmJs Justice, 276.) These forms of conclusion are author- 
 ized by the common law; the statute prescribing no particular 
 form. If the-conclusion is irregular, it will not, however, vitiate 
 the mittimus. {Barb. Grim. Laio, hl'i; Davis' Justice, 114.) 
 
 The forms heretofore given for complaints will answer to guide 
 the Justice in describing the offence in the mittimus. 
 
 The mittimus should state at its commencement the jurisdic- 
 tion ol the Justice, and be directed to the sheriff of the county, 
 or his deputies, or to any constable of a town named in the 
 mittimus, and to the keeper of the particular jail to which the 
 prisoner is to be comniitted, and should command the sheriff 
 or constable to convey the prisoner into the custody of the 
 jailer, and the jailer to receive and keep him in the jail, until 
 
606 NEW YORK JUSTICE. 
 
 lie be thence delivered by due course of law. (1 Ohitty^s Grim. 
 Law, 110, 116; Barb. Grim. Law, 573; 1 Burn's Justice, 276; 
 Davis' Jmtice, 107, 114.) 
 
 If the officer to whom the mittimus is directed, wilfully or 
 corruptly refuses to execute it, or wilfully or corruptly executes 
 it in such a manner that the prisoner escapes, or receives any 
 gratuity, reward, security or engagement for the same, from the 
 prisoner, to procure, assist, connive at or permit the escape of 
 such prisoner, he is liable, upon conviction, to be punished by 
 imprisonment in the county jail, not exceeding one year, or by 
 fine, not exceeding one thousand dollars, or both. (2 R. 8. 
 684, § 18.) 
 
 The keeper of the jail must receive and safely keep the pris- 
 oner, and must not, without lawful authority, let him out of 
 prison on bail or otherwise. (Laws of 1847, chap. 460, § 3.) 
 He must be kept in a room separate and distinct from the room 
 in which persons convicted are confined, (id. §\4.) While he 
 is so detained in jail, ^e may converse vrith counsel, and with 
 such other persons as the keeper in his discretion may allow. 
 (id. § 7.) If the keeper wilfully refuses to receive the prisoner, 
 or permits him to escape after commitment, he is liable, upon 
 conviction, to be punished by imprisonment in the county jail, 
 not exceeding one year, or by fine, not exceeding one thousand 
 dollars, or by both. (2 R. 8. 684, § 18.) If the keeper of the 
 jail will not receive the prisoner, it is said he may be kept in 
 the house of the person who arrested him. (1 Ghitty's Grim. 
 Law, 117.) The officer, to whose custody he was committed on 
 the mittimus, may, in such case, keep him until the jailer can be 
 induced or compelled to receive him. (Davis' Justice, 115.) 
 If the jailer should receive, by mistake, from the constable, a 
 person whom it was not intended to confine, he is protected from 
 liability. (1 Ghitty's Grim. Law, 117.) 
 
 The constable must deliver the warrant of commitment to the 
 jailer at the time of delivering the prisoner, for it is the jailer's 
 authority for keeping him, alid is the only return the jailel" can 
 make to a writ of habeas corj^is, if one should be sued out. It 
 is prudent for the constable to keep a copy of the warrant, and 
 to take a receipt for the prisoner from the jailer. (Barb. Grim. 
 Law, 573.) 
 
 The jailer is bound, under a penalty of two hundred dollars, to 
 
THE MITTIMUS. 607 
 
 delirer a copy of the warrant to the prisoner, whenever he shall 
 demand the same, and tender the fees therefor. (2 R. 8. 573, 
 
 \n.) 
 
 If a Justice, acting within the scope of his jurisdiction, takes 
 an erroneous view of the effect of the evidence, and comes to a 
 wrong conclusion, and commits the defendant, and the latter is 
 , afterwards discharged on habeas corjpus, the Justice is not liable 
 to an action of trespass. (1 Ohitty's Crim. Law, 116; 14: East, 
 82.) 
 
 If the prisoner is advised that his commitment is illegal, or 
 that he is entitled to be discharged or bailed, he has his remedy 
 by habeas corjms or certiorari. It is not, however, within the 
 scope of this woi-k to consider proceedings beyond the jurisdic- 
 tion of Justices of the Peace. 
 
 A prisoner may also be discharged upon giving bail. Thus, 
 if he is not ready with bail, at the time he is apprehended or 
 examined, he may at any time be released from imprisonment 
 on finding sureties. {Barb. Crim. Law, 575.) 
 
 The fee allowed to a constable for taking a defendant into 
 custody on a mittimus is twelve and a half cents; for conveying 
 him to jail, twelve and a half cents, if the jail is ^within one 
 mile, and fo,r every mile more, going only, six cents. (2 R. S. 
 750, § 4.) A sheriff is entitled to the same fees for like ser- 
 vices, and to thirty-seven and a half cents as keeper of the jail, 
 for receiving the prisoner, {id. 752, § 11.). These fees are to 
 be audited by the board of supervisors, and paid in the same 
 manner as other county charges, {id. 753, § 12.) 
 
 * § 122. Warrant of Commitment. 
 
 County, ss: 
 ,To the sheriff of the said county, and to his deputies, and to any 
 constable of the town of in said county, and to the 
 
 keeper of the common jail in the said county; [add: at Wa- 
 terloo, or other place, if there is more than one jail in the 
 county-] Greeting: 
 
 These are, in the name of the People of the State of New 
 York, to command you, the said sheriff, deputies and consta- 
 bles, and each of you, forthwith to convey and deliver into the 
 custody of the keeper of our said jail, [at "Waterloo, J the body 
 of W V, charged before me, the undersigned, a Justice of the 
 Peace of the said county on [the date] on-the oath of D A, [and 
 otbers,] for that [here insert the charge as in the complaint,] 
 
608 NEW YORK JUSTICE. 
 
 (contrary to the form of the statute in such case made and pro- 
 vided;)* the said W V having been regularly brought before 
 me, the said Justice, to answer said charge, and it appearing to 
 me, from the examination of the said D A, [and others,] on 
 oath, in presence of the said W V, in regard to the offence 
 charged, and from an examination of the said W V, without 
 oath, in relation thereto, he having been by me previously in- 
 formed of the charge made against him,' and that he was at 
 liberty to refuse to answer any question put to him, and having 
 been allowed a reasonable time to send for and advise with 
 counsel, and upon an examination of the whole matter, that the 
 said offence has been committed, and that there is probable 
 cause to believe the said W V guilty thereof, and the said W 
 V not having offered sufficient bail for his appearance at the 
 next Couit, having cognizance of such offence, and in which he 
 may be indicted, [or, the said offence not being bailable by me 
 the said Justice,] and you, the said keeper, are hereby required 
 to receive the said W V into your custody, in the said common 
 jail, and him there safely keep, [if for want of sureties, in a 
 case where the offence is bailable by a Justice, add: for want of 
 sureties and] until he shall be discharged according to law. 
 Given under my hand and seal at the town of in said 
 
 county, the day of , 1852. 
 
 J H B, [l. s.] 
 Justice of the Peace. 
 
 CHAPTER VII. 
 
 OF BAIL AND ITS rNTCIDENST. 
 
 If, says the statute^ {Laws of 1830, chap. 320, § 61; 2 R. S. 
 709, § 26,) the offence with which the jjrisouer is charged is 
 bailable by a Justice of the Peace, or an alderman of a city, and 
 the prisoner offers sufficient bail, such bail may be taken and 
 the prisoner discharged. This section of the statute, it will be 
 seen, authorizes the Justice to hold the prisoner to bail in all 
 cases where the offence with which he is charged is bailable by 
 a Justice of the Peace, or an alderman of a city. 
 
 • This part withm the paranthese? is not to be inserted except where the offence 
 is against a statute or statutes. 
 
what offences abe bailable by a justice. 609 
 
 1. What Offences ake Bailable by a Justice. 
 
 The first que^stion which arises is, what offences are bailable 
 by a Justice of the Peace or an alderman of a city? The statute 
 provides, that officers before whom persons charged with crime 
 'shall be brought shall have power to let to bail as follows: 1. 
 A Justice of the Supreme Court, in all cases; 2. A Judge of the 
 County Courts, in all cases triable in a Court of Sessions; 3. A 
 Justice of the Peace, or alderman of a city, and in the city of 
 New York, a Special Justice or an Assistant Justice, in all cases 
 of misdemeanor, and in all cases of felony where the imprison- 
 ment in the state prison cannot exceed five years. (2 R. S. 
 710, § 29.) 
 
 If, therefore, the crime charged is a felony not punishable by 
 imprisonment in the state prison exceeding five years, the Jus- 
 tice, if sufficient bail be offered, is authorized to tak^ it and dis- 
 charge the prisoner. If the crime is a felony punishable by im- 
 prisonment in the state prison exceeding five years, then the 
 Justice, as we have seen, has no discretion; be nmst commit the 
 prisoner. It becomes necessary, therefore, to ascertain the vari- 
 ous crimes designated as felouies, in which the punishment can- 
 not exceed five years' imprisonment in the state prison. This 
 includes the following offences: 
 
 Abduction.] Any person who inveigles, entices or takes away 
 any unmarried female of previous chaste character, under the 
 age of twenty-five years, from her father's house, or wherever 
 else she may be, for the purpose of prostitution at a house of 
 ill-fame, assignation or elsewhere, and every person who aids or 
 assists in such abduction for such purpose, is guilty of a misde- 
 meanor, and is, upon conviction thereof, to be punished, by im- 
 prisonment in a state prison not exceeding two years, or by im- 
 prisonment in a county jail not exceeding one year; but no con- 
 viction can be had on the testimony of the fem^ale so inveigled 
 or enticed away, unsupported by other evidence, nor unless an 
 indictment be found within two years after the commission of 
 the offence. (Laws of 1848, chap. 105, § 1.) 
 
 Every person who takes away any female under the age of 
 fourteen years, from her father, mother, guardian or other per- 
 son having the legal charge pf her person, without their con- 
 sent, either for the purposes of prostitution, concubinage or 
 39 
 
610 NEW YORK JUSTICE. 
 
 inarriage, is, upon conviction thereof, to be punished by im- 
 prisonment in a state prison, not exceeding three years, or by 
 imprisonment in a county jail not exceeding one year, or by a 
 fine not exceeding one thousand dollars, or by both such fine 
 and imprisonment. (2 B. 8. 664, § 26.) 
 
 Accessories after the fact.] Every person convicted of having 
 concealed any offender, after the commission of any felony, or 
 of having given such offender any other aid, knovring that he 
 has committed a felony, with intent and in order that he may 
 avoid, or escape from, arrest or trial, or conviction or punish- 
 ment, and no others, is deemed an accessoi-y after the fact, and 
 is, upon conviction, to be punished by imprisonment in a state 
 prison not exceeding five years, or in a county jail, not exceed- 
 ing oiie year. Or by fine, uot exceeding five hundred dollars, or 
 by both such fine and imprisonment, (id. 659, § 7.) 
 
 Assaults to cominit felonies.] Every person convicted of an 
 assault, with an intent to commit any robbery, burglary, rape, 
 manslaughter, or any other felony, the punishment for which 
 assault is not otherwise prescribed, is to be punished by im- 
 prisonment in a state prison, for a term not exceeding five 
 years, or in a county jail, not exceeding one year, or by a fine, 
 not exceeding five hundred dollars, or by both such fine and 
 imprisonment, (id. 666, § 41.) 
 
 Attempts to commit offences.] Every person who attempts to 
 commit an offence prohibited by law, and in such attempt does 
 any act towards the commission of such offence, but fails in the 
 perpeti'ation thereof, or is prevented or intercepted in executing 
 the same, is, upon conviction thereof, in cases where no pro- 
 vision is made by law for the punishment of such, attempt, to 
 be punished as follows: If the offence so attempted be punish- 
 able by imprisonment in a state prison for four years or more, 
 or by imprisonment in a county jail, the person convicted of 
 such attempt is to be punished by imprisonment in a state prison, 
 or in a county jail, as the case may be, for a term not exceeding 
 one-half the longest term of imprisonment prescribed upon a 
 conviction for the offence so attempted, (id. 698, § 3.) 
 
 Attempts to induce perjury.] Every person who, by the offer 
 of any valuable consideration, attempts unlawfully and cor- 
 ruptly to procure any other to commit wilful and corrupt pei- 
 jury, as a witness in any cause, matter or proceeding, in or 
 
■WHAT OFFENCES AEE BAILABLE BY A JUSTICE. 611 
 
 concerning which such other person might by law be examined 
 as a witness, is, upon conviction, to be punished by imprison- 
 ment in a state prison not exceeding five years. (2 R. 8. 
 682, § 8.) 
 
 Bigamy. '\ Every person having a husband or wife living, 
 who marries any other person, whether married or single, is, 
 except in cases hereafter specified, to be adjudged guilty of 
 bigamy, and is, upon conviction, to be punished by imprison- 
 ment in a state prison, for a term not exceeding five years. 
 {id. 687, § 8.) But the secondimarriage must take place within 
 the limits of this State. {People vs. Mosher, 2 Park. Or. R. 
 195.) 
 
 The foregoing provision does not extend to the following 
 persons or cases: 1. To any person by reason of any former 
 marriage, whose husband or wife by such marriage has been 
 absent for five successive years, without being known to such 
 person within that time to be living; nor, 2. To any person, by 
 reason of any former marriage, whose husband or wife by such 
 marriage has absented himself or herself fr6m his wife or her 
 husband, and has been continually remaining without the United . 
 States for the space of five years together; nor, 3. To any person 
 by reason of any fonner marriage which has been dissolved by 
 the decree of a competent Court, for some cause other than the 
 adultery of such person; nor, 4. To any person by reason of 
 any former marriage which has been pronounced void \>j the 
 sentence or decree of a competent Court, on the ground of the 
 nullity of the marriage contract; nor, 5. To any person by 
 reason of any former marriage contracted by such person 
 within the age of legal consent, and which has been annulled 
 by the decree of a competent Court; nor, 6. To any person by 
 reason of any former marriage with a husband or wife who has 
 been sentenced to imprisonment for life. {id. 687, § 9.) 
 
 If any unmarried person, knowingly marries the husband or 
 wife of another, in any case in which such husband or wife 
 would be punishable according to the foregoing provisions, 
 such person is, upon conviction, to be imprisoned in a state 
 prison, not more than five years, or in a county jail not more 
 than one year, or to be fined, not more than five hundred dol- 
 lars, OT to be subject to both such fine and imprisonment, in 
 the discretion of the Court. (2 R, 8, 688, § 11.) 
 
612 - NEW YORK JUSTICE. 
 
 Burglary in the third degree.^ Every person convicted of 
 breaking an'd entering, in the day or in the night time, 1. Any 
 building within the curtilage of a dwelling house, but not 
 forming a part thereof; or, 2. Any shop, store, booth, tent, 
 warehouse, or other building, in which any goods, wares, mer- 
 chandise, or valuable thing, are kept for use, sale, or deposit, 
 with intent to steal therein, or to commit any felony, is, upon 
 conviction, to be adjudged guilty of bui'glary in the third 
 degree. (2 It. 8. 669, § 17.) 
 
 Every person convicted of breaking and entering into the 
 dwelling house of another, in the day time, under such circum- 
 stances as would have constituted the offence of burglary in the 
 second degree, {anie, p. 590,) if committed in the night time, 
 is deemed guilty of burglary in the third degree. (2 R. 8- 
 669, § 18.) 
 
 J^unishmenf. of Burglary in the third degree.\ Burglary in 
 the third degree is to be punished by imiirisonment in a state 
 prison for a term not exceeding five years, (id. \ 21.) 
 
 Buying stolen property.^ Every person who buys or receives, 
 in any manner, upon any consideration, any personal property 
 of any value whatsoever, that has been feloniously taken away 
 or stolen from any other, knowing the same to have been 
 stolen, is, upon conviction to be punished by imprisonment iu 
 a state prison, for a term not exceeding five years, or ia a 
 county jail, not exceeding six months, or by a fine not exceed- 
 ing two hundred 'and fifty dollars, or by both such fine and 
 imprisonment, {id. 680, § 71.) 
 
 Carnal knowledge of women.^ Every person who has carnal 
 ^knowledge of any woman above the age of ten years, without 
 her consent, by administering to her any substance or liquid 
 which shall jDroduce such stupor, or such imbecility of mind 
 or weakness of body as to prevent effectual resistance, is, upon 
 conviction, to be punished by imprisonment in a state prison, 
 not exceeding five years. (2 B. 8. 663, § 23.) 
 
 Compounding offences.] Every person having a knowledge' 
 of the actual commission of any offence punishable by deajji, 
 or bj'' imprisonment in a statte prison for life, who ■ takes any 
 money or property of another, or any gratuity or reward, or any 
 engagement or promise therefor, upon any agreement or under- 
 standing, express or implied, to compound or conceal any such 
 
WHAT OFFENCES ARE BAILABLE BY A JUSTICE. 613 
 
 crime, or to abstain from any prosecution therefor, or to withhold 
 any evidence thereof, is, upon conviction, to be punished by 
 imprisonment in a state prison, not exceeding five years. (2 
 R. 8. 689, § 17.) 
 
 Every person having a knowledge of the actual commission 
 of any offence punishable by imprisonment in a state prison for 
 any other term than for life, who takes any money or property 
 of ailother, or any gratuity or reward, or any engagement or 
 promise therefor, upon any agreement or understanding, express 
 or implied, to compound or conceal any such crime, or to abstain 
 from any prosecution therefor, or to withhold any evidence 
 thereof, is, upon conviction, to be punished by imprisonment in 
 a^tate prison, not exceeding three years, or in a county jail, not 
 exceeding six months, (id. 689, § 18.) 
 
 Conspiracy, dsc, hy persons disguised.^ Every person con- 
 victed upon any indictment for a conspiracy, or upon any indict- 
 ment for a riot, or for any other misdemeanor, in which the 
 oifence is charged to have been committed by such person while 
 armed with a sword, dirk, fire-arms, or other offensive weapon, 
 and while having his face painted, discolored, covered, or other- 
 wise concealed, or having his person disguised in a manner cal- 
 culated to prevent him from being identified, is to be punished 
 by imprisonment in the county jail, for a term not exceeding 
 one year, or by fine, in a sum not exceeding two hundred and 
 fifty dollars, or by both such fine and imprisonment, or by 
 imprisonment in the state prison, for two years, in the discretion 
 of the Court before whom such conviction is had. {Laws of 
 1845, chap. 3, § 7.) 
 
 Corrupting jurors.] Every person who corrupts, or attempts 
 to- corrupt, any other drawn or summoned as a juror, appointed 
 a referee, or chosen an arbitrator, by giving or offering to give 
 any gift or gratuity whatever, with intent to bias the mind of 
 such juror, referee, or ?irbitrator, in relation to any cause or mat- 
 ter which may be pending in the court to which such juror has 
 been summoned, or in which such referee or arbitrator has been 
 chosen or appointed, is, on conviction, to be punished by impris- 
 onment in a state prison, not exceeding five years, or in a county 
 jail, not more than one year, or by a fine, not exceeding one 
 thousand dollars, or by both such fine and imprisonment. 
 (2 R. 8^ 683, ^.9.) 
 
614 
 
 NEW YORK justice; 
 
 Death by wrongful act, Sc] In case the death of any person 
 is caused by the wrongful-act, neglect, or default of any agent, 
 engineer, conductor, or other person, in the employ of any cor- 
 poration or person, under such circumstances as would, if death 
 had not ensued, have entitled the party injured to maintain an 
 action and recover damages in respect thereof, then, and in every 
 such case, the agent, engineer, conductor, or other person, 
 through whose wrongful act, neglect, or default the death of 
 such person has been caused, is liable to be indicted therefor, 
 and, upon conviction thereof, may be punished by imprisonment 
 in a state prison, for a term not exceeding five years, or in a 
 county jail, not exceeding one year, or by a fine, not exceeding 
 two hundred and fifty dollars, or by both such fine and impris- 
 onment. {Laws of 1849, chap. 256, § 2.) 
 
 Embezzlement] If any clerk or servant of any private person, 
 or of any co-partnership, (except apprentices, and persons within 
 the age of eighteen years,) or if any officer, agent, clerk or ser- 
 vant of any incorporated company, embezzles or converts to his 
 own use, or takes, makes way with, or secretes, with intent to 
 embezzle or convert to his own use, without the assent of his 
 master or employers, any money, goods, rights in action, or other 
 valuable security or effects whatever, belonging to any other 
 person, which have come into his possession, or under his care, 
 by virtue of such employment or office, he is, upon conviction, 
 to be punished in the manner prescribed by law for feloniously 
 stealing property of the value of the articles so embezzled, taken 
 or secreted, or of the value of any sum of money payable and 
 due upon any right in action so embezzled. (2 B. >9. 678, § 59.) 
 
 If any carrier or other person, to whom any goods, money, 
 right in action, 6t any valuable personal property or efiects, has 
 been delivered, to be transported or carried for hire, takes, em- 
 bezzles, or converts to his own use, or makes way with, or 
 secretes, without the assent of his employer, and with intent to 
 embezzle or convert to his own use, such goods, money, right 
 in action, property or eifects, or any of them, in the mass, as 
 they were delivered, without breaking the trunk, box, pack, or 
 other thing in winch they or any of them are contained, and 
 before delivery of such articles at the place or to the person 
 entitled to receive them, he is, upon conviction, to be punished 
 in the same manner as if he had taken, embezzled, converted, 
 
WHAT OFFENCES AE.B BAILABLE BY A JUSTICE. 615 
 
 or secreted such goods or other personal property, after break- 
 ing the trunk, box, pack or other thing containing the same, or 
 after separating any of them from the others. (2 R. 8. 679, § 62.) 
 
 Escaping from count)/ jails.] If any person confined in a 
 county jail upon any conviction for a criminal offence, breaks 
 su,ch jail and escapes from thence, he is, upon conviction, to be 
 pmiished by .imprisonment in a state prison, not exceeding tvro 
 years, or in a county jail, not exceeding one year, to commence 
 from the expiration of his former sentence, (id. 685, § 22.) 
 
 £Jscaj}ingi from state prison.] If any prisoner confined in a 
 state prison for any term less than for life, breaks such prison 
 and escape^ from thence, he is, upon conviction, to be punished 
 by imprisonment in such prison, for a term not exceeding five 
 years, to commence from and after the original term of his im- 
 piTsonment. (id. § 21.) 
 
 Every person, lawfully imprisoned in a state prison for any 
 term less than for life, who attempts, by force or violence to any 
 person, to escape from such prison, whether such escape be 
 effected or not, is, upon conviction, to be adjudged to imprison- 
 ment in a state prison, for a term not exceeding five years, to 
 commence" after the termination of the imprisonment to which 
 such person was sentenced at the time of such attempt, (id. ^ 22.) 
 
 Fahe tokens and pretences.] Every person, who, with intent 
 to cheat or defraud another, designedly, by color of any false 
 token or writing, or by any other false pretence, obtaiias the 
 signature of any person to any written instrument, or obtains 
 from any person any money, personal property, or valuable 
 thing, is, upon conviction thereof, to be punished by imprison- 
 ment in a state prison, not exceeding three years, or in a county 
 jail not exceeding one year, or by a fine, not exceeding three 
 times the value of the money, property or thing so obtained, or 
 by both such fine ajid imprisonment. (2 R. 8. 677, § 53.) This 
 provision also applies to every person who, with intent to cheat 
 or defraud another, designedly, by color of any false token or 
 writing, or by any false pretence, obtains the signature of any 
 person to any written instrument, or obtains from any person 
 any money, personal propertj-, or valuable thing, for an alleged 
 charitable or benevolent purpose. (Laws of 1851, chap. 144.) 
 
 Forgery in the third and fourth degrees.] Every person who, 
 •jrith intent to injure or. defraud, falsely makes, alters, forges, 
 
616 
 
 NEW YOKE JUSTICE. 
 
 01* Counterfeits, 1. Any instrument or writing, being, or put- 
 porting to be, any process issued by any competent Court, 
 magistrate or officer; or being, or pm'porting to be, afiiy plead- 
 ing or proceeding filed or entered in any Court of law or equity; 
 or being, or purporting to be, any certificate, order or allow- 
 ance by any competent Court or officer; or being, or purport- 
 ing to be any license or authority authorized by any statute; 2, 
 Any instrument or writing, being, or purporting to be, the act 
 of another, by which any pecuniary demand or obligation is, or 
 purports to be, created, increased, discharged or diminished, or 
 by TFhich any rights or property whatever, are, or purport to 
 be, transferred, conveyed, discharged, diminished or in any man- 
 ner aflfected, the punishment of which is hoit otherwise pre- 
 scribed; by which false making, forging, altering or counter- 
 feiting, any person may be affected, bound, or in any way in- 
 juTed in his person or property; is, upon conviction thereof, to 
 be adjudged guilty of forgery in the third degree. (2 B. 9. 
 673, § 33.) 
 
 Every person who. With intent to defraud, makes any false 
 entrjr, or falsely alters any entry made in any book of accoimts 
 kept in the office of the comptroller of this state, or in the office 
 of the treasurer, or of the state engineer and surveyor, or of any 
 county treasurer, by which any demand or obligation, claim, 
 right or interest, either against, or in favor of, the people of this 
 State, or any county or town, or any individual, is, or purports to 
 be, discharged, diminished, increased, created or in any maimer 
 affected, is, upon conviotion, to be adjudged guilty of forgery iu 
 the third degree. (2 R. S. 673, § 34.) 
 
 Every person who, with intent to defraud, makes any false 
 entry, or falsely alters any entry made, in any book of accounts 
 kept by any moneyed corporation within this State, or in any 
 book of accounts kept by any such corporation, or its officers, 
 and delivered or intended to be delivered to auy person dealing 
 With such corporation, by which any pecuniary obligation, claim 
 or Credit is or purports to be, discharged, diminished, increased, 
 created, or in any manner affected, is, upon conviction, to be 
 adjudged guilty of forgery in the third degree, {id. % 35.) 
 
 Every person who has in his possession any forged or coun- 
 terfeited instrument, the forgery of which is hereinbefore 
 {Ante, pp. 592 t6 ^95) declared to be punishable, (except Such 
 
WHAT OFFEXCES ARE BAILABLE BY A JUSTICE. 617 
 
 as are enumerated in 2 E. S. 674, ^ o<3,) {Ante, p. 595,) knowing 
 the same to be forged, counterfeited or falsely altered, Tvith in- 
 tention to injure or defraud by uttering the same as true or as 
 false, or by causing the same to be so uttered, is subject to the 
 punishment provided for forgery in the fourth degree. (2 H. 
 S. 674, ^ 37.) 
 
 Every person vrho has in his possession any couiiterfeit of any 
 gold or silver coin which is at the time current in this State, 
 knowing the same to be counterfeited, with intention to injure 
 or defraud by uttering the same as true or as false, or by caus- 
 ing the same to be so uttered, is, upon conviction, to be adjudged 
 guilty of forgery in the fourth degree, {id. § 38.) 
 
 Every person convicted of having uttered and published as 
 true, and with intent to defraud, any forged, altered or counter- 
 feited instrument, or any counterfeit gold or silver coin, the 
 forging, alterrr^ or coimterfeiting of which is declared to be an 
 offence, knowing such instrument or coin to be forged, altered or 
 counterfeited, is to suffer the same punishment assigned for the 
 forging, altering or counterfeiting the instrument or coin so 
 uttered: (id. § 39;) except that, if it appears, on the tiial of the 
 indictment, that the accused received such forged or counter- 
 feited instriunent or coin, of another, in good faith and for a 
 good or valuable consideration, without any circumstances to 
 justify a suspicion of its being forged or counterfeited, the jury 
 may find the defendant guilty of forgery in the fourth degree. 
 (2 B. S. 674, § ^0.) 
 
 If any one, with intent to injure or defraud, makes any instru- 
 ment in his own name, intended to create, increase, dischai-ge, 
 defeat or diminish &iy pecmiiai-y obligation, right or interest, 
 or to transfer or affect any property whatever, and utters or 
 passes it, under the pretence that it is the act of another who 
 bears the same name, he is, upon conviction, to be adjudged 
 guilty of forgeiy in the same degree, as if he had forged the 
 iBstrument of a person bearing a different name fr"om his own. 
 (»d, §41.) 
 
 Punishment offvrgery in the, third and fourth degrees.] Per- 
 sons convicted of forgeiy in the third and fourth degi'ees ai-e to 
 be punished as follows: 1. Those in the third degree, by im- 
 prisonment in a State prison, for a term not exceeding five years; 
 2. Those in the fourth degree, by a like imprisonment, not- ex- 
 
618 NEW YORK JUSTICE. 
 
 ceeding two years, or by imprisonment iu a county jail, not 
 exceeding one year. (2 R. S. 675, § 42.) 
 
 Grand Larceny.'\ Every person convicted of th® felonious 
 talcing and carrying away the personal property of another, of 
 the value of more than twenty-five dollars, is to be adjudged 
 guilty of grand larceny, and to be imprisoned in a State prison, 
 for a term not exceeding five^ears. {id. 679, ^ 63.) 
 
 If the property stolen consists of any bond, covenant, note, 
 bill of exchange, draft, order or receipt, or any other evidence 
 of debt, or of any public security issued by the United States or 
 by this State, or of any instrument whereby any demand, right, 
 or obligation is created, increased, released, extinguished or 
 diminished, the money due thereon or secured thereby, and re- 
 maining unsatisfied, or which in any event or contingency might 
 be collected thereon, or the value of the property transferred or 
 affected thereby, as the case may be, is deemed the value of the 
 article so taken, (id. § 66.) 
 
 Injuries to rail-roads.\ Every person who wilfully, with 
 malicious intent, removes, breaks, displaces, throws down or 
 destroys, any iron, wooden or other rail, or any branches or 
 branch-ways, or any pai't of the tracks, or any bridge, viaduct, 
 culvert, embankment or other fixture, or any part thereofj 
 attached to or connected with the tracks of any railroad in this 
 State, or who wilfully, with like malicious intent, places any 
 obstructions upon the rails or tracks of such rail-roads, is, upon 
 conviction, to be punished by imprisonment in the state prison, 
 not exceeding five years, or in a county jail, not less than six 
 months. {Laws of 1838, chap. 160.) 
 
 Jurors, &c., accepting bribes.] If any person drawn or sum- 
 moned as a juror, or if any person chosen as arbitrator, or ap- 
 pointed a referee, takes anything to give his verdict, award or 
 report, or repeit^es any gratuity or gift whatever, from any 
 party to any suit, proceeding or prosecution, for the trial of 
 which such person had been drawn or summoned, or for the 
 hearing of which he has been chosen an arbitrator or appointed 
 a referee, he is, upon conviction, to be punished bj- imprison- 
 ment in a state prison, not exceeding five years, or in a county 
 jail, not exceeding one year, or by fine, not exceeding one thou- 
 sand dollars, or by both such fine and imprisonment. (2 R. S. 
 683, § 11.) 
 
WHAT OFFENCES ARE BAILABIE BY A JUSTICE. 619 
 
 Manslaughter in the third and fourth degrees.^ The killing 
 of another, in the heat of passion, without a design to effect 
 death, by a dangerous weapon, in any case except one wherein 
 the killing of another is declared by statute to be justifiable or 
 excusable, is deemed manslaughter in the third degree. (2 
 R. 8. 661, § 2.) 
 
 The involuntary killing of a human being, by the act, pro- 
 curement, or culpable negligence of another, while such other 
 person is engaged in the commission of a trespass or other 
 injury to private rights or property, or engaged in an attempt 
 to commit such injury, is deemed manslaughter in the third de- 
 gree, {id. % 13.) 
 
 If the owner of a mischievous animal, knowing its propensi- 
 ties, wilfully suffers it to go at large, or keeps it without ordi- 
 nary care, and such animal, while so at large, or not confined, 
 kills any human being who has taken all the precautions which 
 the circumstances may permit to avoid such animal, such owner 
 is deemed guilty of manslaughter in the third degree. (2 R. 
 8. 662, § 14.) 
 
 Any person navigating any boat or vessel for gain, who wil- 
 fully or negligently receives so many passengers, or such a quan- 
 tity of other lading, that by means thereof such boat or vessel 
 sinks or is overset, and thereby any human being is drowned or 
 otherwise killed, is deemed guilty of manslaughter in the third 
 degree, {id. § 15.) 
 
 If the captain or any other person having charge of any steam- 
 boat used for the conveyance of passengers, or if the engineer 
 or other person having charge of the boiler of such boat, or of 
 any other apparatus for the generation of steam, from ignorance 
 or gross neglect, or for the purpose of excelling any other boat 
 in speed, creates or allows to be created, such an undue quantity 
 of steam as to burst or break the boiler or other apparatus in 
 which it shall be generated, or any apparatus or machinery con- 
 nected therewith, by which bursting or breaking any person is 
 lulled; every such captain, engineer or other person, is deemed 
 guilty of manslaughter in the third degree, {id. k 16.) ^ 
 
 If any physician, while in a state of intoxication, without a 
 design to effect death, administers any poison, drug or medicine, 
 or does any other act to another person, which produces the 
 
620 NEW YORK JOSTICE. 
 
 death of isuch other, he is deemed guilty of manslaughter in the 
 third degree, (id. \ 17.) 
 
 The involuntary killing of another, by any weapon, or by 
 means neither cruel nor unusual, in the heat of passion, in any 
 eases other than such as are declared by statute to be excusable 
 homicide, is deemed manslaughter in the fourth degree. (2 R. 
 S. 662, § 18.) 
 
 Erery other feilling of a human being, by the act, procure- 
 ment or culpable negligence of another, where such killing is 
 not justifiable or excusable, or is not declared by statute to be 
 n^urder, or manslaughter of some other degree, is deemed man- 
 slaughter in the fourth degree, {id. § 19.) 
 
 I^wtiiskment of manslaughter in the third and fourth degrees.^ 
 Persons convicted of manslaughter in the third degree, are to 
 be punished by imprisonment in a, state prison, for a term not 
 more than fcur years, and not less than two years. (2 R. 8. 
 662, § 20.) 
 
 Every person convicted of manslaughter in the fouj-th de- 
 gree, is to be punished by imprisonment in a state prison, for 
 two years. Or by imprisonment in a county jail, not exceeding 
 one year, or by a fine, not exceeding one thousand dollars, or 
 by both such fine and imprisonment, {id. § 21.) 
 
 Poisoning cattle.^ Every person who wilfully administers 
 any poison to any horse, cattle or sheep, or maliciously exposes 
 any' poisonous substance, with intent that the same should be 
 taken or swallowed by any horse, cattle or sheep, is, upon con- 
 viction, to be punished by imprisonment in a state prison, not 
 exceeding three yeax-s, or in a county jail, not exceeding one 
 year, or by a fine, not exceeding two hundred and fifty dollars. 
 {id. 689, § 16.) 
 
 Receiving property embezzled.^ Every person who buys or 
 in any way receives any money, goods, right in action, or any 
 valuable security or efiects whatever, knowing the same to have 
 been embezzled, tak;en or secreted contrary to the provisions of 
 the statute defining embezzlement, {ante, p. 614,) is, upon con- 
 viction, to be punished in the same manner and to the same ex- 
 tent as is prescribed by statute upon a conviction of a servant 
 for such embezzlement. (2 R. 8. 678, § 61.) 
 
 Second offences.^ If any person convicted oi any offence 
 punishable by impiisonment in a state prison, is discharged^- 
 
WHAT OTFENCES ARE BAILABLE BY A JUSTICE. 621 
 
 either upon being pai'doned, or upon the expiration of Ms sen- 
 tence, and is subsequently convicted of any offence committed 
 after such pardon or discharge, he is to be punished as follows: 
 If such subsequent conviction is for petit larceny, or for any 
 attempt to commit an offence which, if perpetrated, would be 
 punishable by imprisonment in a state prison, then the person 
 convicted of such subsequent offence is to be punished by im- 
 prisonment in a state prison, for a term not exceeding five years. 
 (2 B. S. 699, § 8.) 
 
 Every person convicted of petit'larceny, or of an attempt to 
 commit an offence wliich, if perpetrated, would be punishable 
 by imprisonment in a state prison, and pardoned or otherwise 
 discharged, who is subsequently convicted of any offence com- 
 mitted after such pardon or discharge, is to be- punished as fol- 
 lows: If such subsequent conviction is for petit larceny, or for 
 any attempt to commit an offence which, if committed, would 
 be punishable by imprisonment in a state prison, then such per- 
 son is to be sentenced to imprisonment in such prison, for a 
 term nbt exceeding five years. (2 JR. S. 699, § 9.) 
 
 Seduction under promise of marriage.] Any man who, under 
 promise of marriage, seduces and has illicit connexion with any 
 unmarried female of previous chaste character, is guilt;^ of a 
 misdemeanor, and is, upon conviction, to be punished by im- 
 prisonment in a state prison, not exceeding five years, or by 
 imprisonment in a county jail, not exceeding one year; but no 
 conviction can be had on the testimony of the female seduced, 
 unsupported by other evidence, nor unless an indictment be 
 found within two years after the commission of the offence; and 
 the subsequent marriage of the parties may be pleaded in bar 
 of a conviction. {Laws of 1?> i9i, chap. -111.) The provisions of 
 this statute are applicable to all Indians residing within the 
 State of New York, {Laios of 1849, chap. 420, § 3.) , 
 - Severing produce from the soil, &c.^ If any person severs 
 from the soil of another any produce growing thereon, of the 
 value of more than twenty-five dollars, or severs from any build- 
 ing, or from any gate, fence, or other railing or enclosure, any 
 part thereof, or any material of which it is formed, of the like 
 value, and takes and converts the same to his own use, with the 
 intent to steal the same, he is deemed guilty of larceny in the 
 same manner and of the same degree as if the articles so taken 
 
622 NEW TOEK JUSTICE. 
 
 had been severed at some previous and diflFerent times. (2 R. 
 8. 680, § 68.) 
 
 • Stealing records.] Whoever is convicted of having stolen 
 and carried away any record, paper or proceeding, of a Court 
 of Justice, filed or deposited with any clerk or officer of such 
 Court, or any paper, document or record filed or deposited in 
 any public office, or with any judicial officer, is to be adjudged 
 guilty of larceny, without reference to the value of the record, 
 paper, document or proceeding so stolen, and is to be pun- 
 ished by imprisonment in a state prison, not exceeding five 
 years, or in a county jail, not exceeding one year, or by fine, 
 not exceeding five hundred dollars, or by both such fijie and 
 imprisonment. (2 E. S. 680, § 69.) 
 
 Every officer having the custody of any record, paper or 
 proceeding above specified, who steals, or fraudulently takes 
 away, or withdraws, or destroys any .such document or paper 
 filed with him, is, upon conviction, to be punished by impri- 
 sonment in a state prison for a term not exceeding five years. 
 {id. § 70.) 
 
 Threatening letters.] Every person who knowingly sends or 
 delivers, or makes, and, for the purpose of being delivered or 
 sent,, parts with the possession of, any letter or wi'iting, with or 
 without a name subscribed thereto, or signed with a fictitious 
 name, or with any letter, mark or other designation, threatening 
 therein to accuse any person of any crime, or to do any injury 
 to the person or property of any one, with a view to extort or 
 gain any money or property of any description, belonging to 
 another, is, upon conviction, to be adjudged guilty of an 
 attempt to rob, and to be punished by imprisonment in a state 
 prison, not exceeding five years, (id. 678, § 58.) 
 
 Violating graves, (&c.] Every person who removes th^ dead 
 body of any human being from the grave or other place of 
 interment, for the purpose of selling the same, or for the pur- 
 pose of dissection, or from mere wantonness, is, upon convic- 
 tion, to be punished by imprisonment in a state px'ison, not 
 exceeding five years, or in a county jail, not exceeding one 
 year, or by a fine, not exceeding five hundred dollars, or by 
 both such fine and imprisonment, {id. 688, § 13.) 
 
 Every person who purchases or receives the dead body of 
 any humaia being knowing the same to have been disinterred 
 
BAIL, WHEN TO BE TAKEN. 623 
 
 contrary to the foregoing provision, is, upon conviction, to be 
 subject to the same punishment above specified. (2 M. 8. 
 688, § 14.) 
 
 Every person who opens a grave or other place of interment, 
 with intent, 1. To remove the dead body of any human being, 
 for the purpose of selling the same, or for the . purpose of dis- 
 section; or, 2. To steal the coflSn or any part thereof; or the 
 vestments or other articles interred with any dead body, is, 
 upon conviction, to be punished by imprisonment in a state 
 prison, not exceeding two years, or in a county jail, not exceed- 
 ing six months, or by fine, not exceeding two hundred and fifty 
 dollars, or by both such fine and imprisonment, {id. § 15.) 
 
 The provisions of the Revised Statutes enumerating and 
 defining the various crimes distinguished as misdemeanors, are 
 too voluminous to be inserted in this work. Nor is it necessary 
 that they should be. If the Justice does not find, within the 
 enumeration of felonies given in tlie text, the particular crime 
 with which the prisoner is charged, the presumption is that his 
 offence is a misdemeanor, and therefore bailable by a Justice. 
 
 2. Bail, When to be Taken. 
 
 Bail, from the French word bailler, signifies the delivery of 
 a man out of custody, upon the undertaking of one or more 
 persons for him, that he shall appear at a day limited, to^ 
 answer and be justified by the law.^ (1 Burn^s Justice, 110.) 
 This bail or undertaking every person may ofier, who is 
 brouo-ht before a Justice, charged with a criminal oflTence bail- 
 able by such Justice; and, if sufficient bail be ofiered, it is pre- 
 sumed it must be . accepted. {Barb. Grim. Law, 575.) The 
 language of the statute is: "If the Ofience be bailable by a 
 Justice of the Peace, and the prisoner offer sufficient bail, such 
 bail may be taken, and the prisoner discharged." {Law8 of 1830, 
 cha^. 320, § 61:) " May," it seems to be understood, is to be 
 here construed "must;" and this construction appears to be 
 warranted by the language of the remaining portion of the 
 section. If the magistrate refuses to take bail, he must commit 
 the prisoner; and, in looking further through this section of 
 the statute, for his authority to do so, we find the following 
 provision: " If no hail be ofiered, or the offence be not bailable 
 
624 NEW YORK JUSTICE. 
 
 by a Justice of the Peace, or an alderman of a city, the prisoner 
 shall he committed to prison." This power to commit is, at 
 most, but a conditional authority, to be exercised only when 
 the prisoner offers no sufficient bail, or when his offence is not 
 bailable by a Justice or an alderman. Nor does this construc- 
 tion facilitate the escape of offenders, or militate against the 
 intention of the statute in authoi-izing bail to be taken. That 
 intention is, that the appearance of the prisoner at the proper 
 Court, to answer the charge 'preferred against him, shall be 
 secured. How ? By exacting sufficient bail. The magistrate 
 is the judge of its sufficiency, and has a discretion either to 
 accept it or to refuse it; but, if he refuses it, it must be for the 
 reason that it is insufficient. The 8th amendment to the Consti- 
 tution of the United States provides, that "excessive bail shall 
 not be required;" {%ih Am'dt Const. U. S.; 1 R. 8. 94, % 17;) 
 and the statate says, that if sufficient bail be offered it may be 
 taken. The Justice, therefore, must judge of the sufficiency of 
 the bail offered. But, by -^hat standard ? How is that suffi- 
 ciency to be determined and the provision of the Constitution 
 to be adhered to ? • Manifestly, by fixing the amount of the bail 
 in view of the magnitude of the offence charged; and of the 
 other circumstances connected with the case, which may affect 
 the probability of the prisoner's appearance to answer the 
 charge. If the Justice is of opinion that tne offence charged 
 may, by tlie death of the person injured by the prisoner, or from 
 some other cause, become merged in an offence not bailable by 
 him, and if he is also of opinion that he is not at liberty to refuse 
 bail, he has the option, and it is his duty, either to detain the 
 prisoner in custody until the person wounded shall have been 
 pronounced out of danger, [Sarb. Crim. Law, 577,) or to re- 
 quire bail in such a sum and with sureties of Such unquestion- 
 able responsibility as will ensure the appearance of the prisoner. 
 {^Davis' Justice. 88.) 
 
 If the Justice refuses or delays to bail any person who is 
 clearly entitled to be bailed, he is guilty of a criminal offence 
 at Common law, and is also liable in damages to the party 
 injured. {Barb. Qrim. Law, 576; Davis' Jmtice, 83.) It is 
 not, however, the duty of 'the Justice to demand bail, but the 
 prisoner is bound to tender it, otherwise the Justice may com- 
 mit him. (1 Chitty's Grim. Law, 103.) If the offence is not bail- 
 
BAIL, BY WHOM TO BE GIVEN. 625 
 
 able by a Justice, and he admits the prisoner to bail, he is guilty 
 of a negligent escape. (1 Cliitty's Grim. Law, 102.) 
 
 Justices of the Peace have the power, also, under the act of 
 Congress of September 24th, 1789, to admit to bail all persons 
 arrested for any crime or pflFence against the United States, 
 except where the punishment may be death. The process issued 
 for the arrest of a criminal under this act, together with the 
 recognizances taken by the Justice, are to be returned to the 
 clerk's office of such Court of the United States as has cogni- 
 zance of the offence. If the witnesses upon the examination 
 refuse to enter into a proper recognizance, the Justice has power 
 to imprison them. (1 U. 8. 8 tats, at Large, 91, § 33.) 
 
 It has been held, that a Justice may take a recognizance, with 
 sureties, for the appearance of a party charged with a bailable 
 pffence, at an adjourned examination; and, if the party do not 
 appear, he and his sureties must be called, and a proper entry of 
 their default made; but it is not necessary that the Justice 
 should render judgment that the recognizance is forfeited. (1 
 Lay, 98. See 2 Washington's G. G. R. 422.) 
 
 If the offence is bailable, the re^fusal of the prisoner to be ex- 
 amined is not a ground for refusing bail. That examination is a 
 personal privilege, for the benefit of the accused, and a recogni- 
 zance entered into after a waiver of the examination is valid. 
 {Qhamplain vs. People, 2 Gom. 82.) 
 
 3. Bail, by Wij,om to be Given. 
 "We have seen that the statute says: "If sufficient bail be 
 offered, it may be taken." {Ante, p. 623.) This sufficiency has 
 reference not only to the responsibility of the sureties, but also 
 to the amount of the penalty of the recognizance, {Lavis' Jus- 
 tice, 96,) as the latter must necessarily be determined before 
 deciding upon the former. Here, again, the Justice must exer- 
 cise his best discretion, bearing in mind that the intention of the 
 statute is to secure the appearance of the prisoner. He may 
 require an amount proportioned to the enormity of the offence 
 and the improbability of the prisoner's appearance, provided he 
 does not violate the provision of the Constitution against exces- 
 sive bail. {Ante', p. 624.) If the prisoner is a man of property, 
 and known to the Justice to be responsible for the amount of 
 the penalty, he, with one surety of adequate responsibility, may 
 40 
 
626 NEW TORK JUSTICE. 
 
 be permitted to execute the recognizance. (1 Chitty's Orim. 
 Law, 99; Barb. Grim. Law, 578; Iiavis' Justice, 96.) The 
 common practice, however, appears to be to require two sure- 
 ties of undoubted ability to answer the penalty of the recogni- 
 zance. In order to satisfy himself of such ability, the Justice 
 may require the sureties tcp answer on oath as to the value of 
 their property, (id.; 2 B.,8. 552, § 9.) The criterion of re- 
 sponsibility, as laid down in the books, is the amount of unen- 
 cumbered *eal estate possessed by the sureties within the county 
 of the Justice. They should each own, in his own right, a 
 quantity sufficient to answer, even if sold at a forced sale, the 
 penalty of the recognizance. {Davis' Justice, 96.) 
 
 A minor cannot become a surety, for he cannot bind himself 
 during his minority, nor can a married woman, because her bond 
 cannot be estreated; and therefore, when either a minor or a 
 married woman is arrested, a recognizance can be taken only 
 from the sureties. (1 Chitty's Grim. Law, 104; 1 Black. 236; 
 11 Leigh, 665.) 
 
 In a criminal case, an attorney may become bail for his client. 
 {Hawkins vs. Magnall, Douglass, 466.) 
 
 4. Contents of the Recognizance. 
 
 The recognizance need not set forth the offence, with the par- 
 ticularity required in an indictment, (17 Wend. 252; 4 Den. 
 530; Gildersleeve vs. People, 10 Barb. 35,-) nor need it recite 
 that the defendant was chargedgon oath with an offence, or that 
 the magistrate adjudicated thereon. {Champlain vs. People, 
 2 Goms. 83.) The cause of taking it must, however, appear, 
 and it must specify the charge which the prisoner is to answer. 
 If the latter is omitted, the defect is one which cannot be sup- 
 plied by parol proof. (2 Kelly, 363; 14 Ve)-mont Rep. 64.) 
 The recognizance should state in substance all the proceedings 
 which show the authority of the magistrate to take it. (9 Mass. 
 Bepr 520; 16 id. 447.) 
 
 A recognizance in general binds to three things — to appear 
 and answer a specified charge, or such matter as may be object- 
 ed; to stand to and abide the judgment of the Court; and not 
 to depart the Court without leave. Each of these particulars is 
 distinct and independent. (6 Hoisted, 124.) 
 
 The statute does not prescribe the form of the condition of 
 
CONTENTS OF THE RECOGNIZANCE. 627 
 
 the recognizance, but it is presumed that it must be of the same 
 tenor and effect as the condition of the bonds given by the pros- 
 ecutor and witnesses, namely, that the prisoner will appear at 
 the next Court having cognizance of the offence, and in which 
 he may be indicted. {People vs. Maclc, 1 Park Or. 567.) 
 
 In considering the form of the recognizance to be gi\ en by 
 witnesses, we stated the rule which determines the Court at 
 which they must be bound to appear. {Ante, p. 580.) The 
 same rule applies in determining the Court at which the prisoner 
 must be bound to appear. If the conditioii be, to appear at a 
 time when no Court is by law to be held, the recognizance is 
 void. (12 Smedes <& Marshall, 470; 14 Vermont Bep. 64.) 
 So, also, if it be made returnable to a Court not having juris- 
 diction of the offence charged. (1 Sergeant <& Pawle, 328; 
 Brayton, 140.) 
 
 5. Form of the Recognizance. 
 
 The statute requires, that all recognizances in any criminal 
 matter or proceeding, must be in writing, and be subscribed by 
 the pai-ties to be bound thereby; (2 R. 8. 746, § 24;) and it is 
 proper that they should be sealed, though a seal is said to be . 
 not essential to their validity. (2 Cons. Court Rep. 123.) It is 
 not legally necessary that the principal and sureties should unite 
 in the same recognizance. {People vs. Huggins, 10 Wend. 464.) 
 
 § 123. Recognizance. 
 State of New York, 
 
 County, ^ 
 
 We, W V, E F, and G H, of , in said county, ac- 
 
 knowledge ourselves to be severally indebted to the people of 
 the State of New York; that is to say: the said W V in the sum 
 of dollars, .the said E F in the sum of dollars, the 
 
 said G H in the sum of dollars, to be well and truly paid, 
 
 if default shall be made in the condition following: 
 
 The condition of this recognizance is such, that if the said W 
 V shall^ person ally appear at the next Court of Oyer and Term- 
 iner [or, Court of Sessions,] to be held in and for said county, 
 -then and there to answer to a complaint against him for, &c., 
 [state the complaint,] and to do and receive what shall, by the 
 oourt, be then and there enjoined upon him; and shall not de- 
 
628 NEW YORK JUSTICE. 
 
 part the court without leave; then this recognizance to be void; 
 otherwise, of force. 
 
 Taken, s^ibscribed, and acknowledged, ) W V. 
 the day of , 18 . before me, ) E F. 
 
 GH. 
 J H B, Justice, &c. 
 
 L. S. 
 L. 8. 
 L. S. 
 
 This recognizance is to be certified by the Justice taking it, 
 to the Court at which the witnesses are bound to appear, on the 
 first day of the sitting thereof. 
 
 If the prisoner is not ready with bail at the time he is appre- 
 hended, and the offence is bailable by a Justice, he may, at any 
 time, before conviction, be released from imprisonment on finding 
 sureties; and, after the recognizance has been entered into, the 
 Justice before whom it is taken must issue his precept, formerly 
 called a liberate, to the jailer, commanding him to liberate the 
 prisoner. (1 Chitt^/'s Grim. Law, 101.) 
 
 , \ 124. Warrard to liberate a ^prisoner. 
 
 County, ss: 
 To the keeper of the common jail of said county: "W V, now 
 in your custody in the said jail, by virtue of a warrant of com- 
 mitment signed by me, [or, by J H B, a Justice of the Peace of 
 the said county,] dated [(^ate,] for having [state the offence,^ hav- 
 ing given bail before me to appear at the next [state the court,\ 
 you are hereby required forthwith to discharge the said W Y 
 from your custody in said jail, unless he be detained by you 
 therein for some other cause. 
 
 Given under my hand and seal this [da^e.l 
 
 HTC, [L.S.] 
 Justice of the Peace. 
 
JURISDICTION OF COURTS OF SPECIAL SESSIONS. 629 
 
 CHAPTER yill. 
 
 OF COURTS OF SPECIAL SESSIONS GENERALLY, AND 
 TRIALS THEREIN. 
 
 If no bail is oflFered for the prisoner, he is, as we have before 
 seen, to be committed by the Justice, except in cases in which 
 a Court of Special Sessions is authorized to try him. {Laws of 
 1830, chap. 320, § 61; 2 R. 8. 709, § 27.) 
 
 Formerly, Courts of Special Sessions were held by the magis- 
 trate before whom the prisoner was brought, associated with two 
 Justices of the Peace of the county, {id. 712, § 2.) But now 
 they are required to be held by a single magistrate, authorized 
 to sit as a member of a Court of Special Sessions. {Laws of 
 1845, chap. 180, % 15.) A Justice of the Peace is such a magis- 
 trate. All the offences triable by the former Court of Special 
 Sessions may be tried by such single magistrate, with or without 
 a jury at the election of the prisoner; and all the provisions of 
 law which were applicable to the powers, duties and proceed- 
 ings of such Courts of Special Sessions, apply to the single 
 magistrate and the proceedings before him. {Laws of 1845, 
 chap. 180, § 15.) 
 
 1. Jurisdiction of Courts op Special Sessions. 
 Courts of Special Sessions, except in the citj' and county of 
 New York, and the city of Albany, have power, subject to other 
 provisions of the statute, to hear and determine charges for 
 crimes arising within their respective counties, as follows: 
 
 1. All cases of petit larceny, charged as a first offence. (2 R. 
 8. 711, § 1.) Petit larceny is the stealing, taking, and carrying 
 away the personal property of another, of the value of twenty- 
 five dollars and under, {id. 690, § 1.) There are no accessories 
 in petit larceny; all concerned in the commission of the offence 
 are principals. {Ward vs. People, 6 Hill, 144.) 
 
 2. Cases of assault and battery, not charged to have been 
 committed riotously, or upon any public officer in the execution 
 of his duties. 
 
630 NEW TOEK JUSTICE. 
 
 3. Charges for poisoning, killing, maiming, wounding, or 
 cruelly beating animals. (2 E.S.TU,k 1-) This includes the 
 maliciously killing, maiming or wounding any horse, ox, or 
 other cattle, or any sheep belonging to another; and the 
 maliciously and cruellj' beating or torturing any such animal. 
 {id. 695, ^ 26.) It also includes the wilfully administering any 
 poison to any horse, cattle or sheep, and the maliciously expos- 
 ing any poisonous substance, with intent that the same shall be 
 taken or swallowed by any horse, cattle or sheep, {id. 689, 
 
 §16.) 
 
 4. Charges for racing animals within one mile of the place 
 
 where any Court is held. {id. 711, § 1.) This includes the 
 racing, running, or other trial of speed between any horses or 
 other animals, within one mile of the place where any Court 
 shall be actually sitting, {id. 6S2, § 13.) 
 
 5. Charges for committing any wilful trespass, or for severing 
 any produce or article from the freehold, not amounting to 
 grand larceny, {id. 711, § 1.) This includes the wilfully com- 
 mitting, any trespass by, (1.) Cutting down or destroying any 
 kind of wood or timber, standing or growing upon the lands of 
 any other, or upon lands belonging to the people of this State; 
 or, (2.) Carrying away anj kind of wood or timber that may 
 have been cut down, and that may be lying upon such lands; 
 or, (3.) Maliciously cutting dow-n, lopping, girdling, or other- 
 wise injuring, any fruit or ornamental shrub-trees; or, (4.) Mar 
 liciously severing from the freehold any produce thereof, or 
 anything attached thereto; or, (5.) Severing and carrying away 
 from any freehold, any property or thing attached thereto, of 
 the value of twenty-five dollars or less, under such circumstances 
 as would render the trespass a larceny if the thing so severed 
 or carried away was personal property. (2 B. S. 697, ^ 40.) 
 
 , 6. Charges for selling poisonous substances, not labelled as 
 required by law. {id. 711. § 1:) This includes the salb and 
 delivery by any apothecary, druggist, or other person, of any 
 arsenic, corrosive sublimate, prussic acid, or any other substance 
 or liquid usually denominated poisons, without having the word 
 " poison" written or ijrinted upon a label attached to the phial, 
 box, or parcel in which the same is so sold; and also the selling 
 and delivering any tartar emetic, without having the true name 
 thereof written or printed upon a label attached to the phial, 
 
JURISDICTION OF COURTS OF SPECIAL SESSIONS. 631 
 
 box, or parcel containing the same. (2 R. 8- 694, § 23.) For 
 this oifence, however, the party, if convicted, cannot be sen- 
 tenced by the Justice to imprisonment, but can only be pun- 
 ished by a fine, not exceeding one hundred dollars, {id.) 
 
 7. Charges for maliciously removing, altering, defacing or 
 cutting down monuments, or marked trees, {id. 711, § 1.) This 
 includes, (1.) Wilfully or maliciously removing any monuments 
 of stone, wood, or other durable material, erected for the pmv 
 pose of designating the corner or other point in the boundary 
 of any lot or tract of land; or, (2.) "Wilfully and maliciously 
 defacing or altering the marks upon any tree, post, or other 
 monument, made , for the purpose of designating any point, 
 course or line, in the boundary of any lot or tract of land; or, 
 (3.) Wilfully and maliciously cutting down and removing anj^ 
 tree upon which any such marks shall be made for such pur- 
 pose, with the intent to destroy such marks, {id. 695, \ 32; 
 id. 697, § 40.) 
 
 8. Charges for maliciously breaking, destroying, or removing 
 mile-stoneS(. mile-boards, or guide-boards, or alter^ug or defacing 
 any inscription thereon, {id. .711, § 1.) This includes the wil- 
 fully or maliciously breaking, destroying, or repioving any mile- 
 stone, naile-board, or guide-board, erected upon any public 
 highway or turnpike, and the wilfully or maliciously defacing 
 or altering any inscription upon such stone or board. (2 R. 8. 
 696, § 33. It also includes the destroying, removing, injuring, 
 or defacing any mile-board, or mile-stone, or guide-post, erected 
 oil any highway. ,(ec?. 526, % 128, 129.) But on a conviction 
 of this last offence, the Justice cannot both fine and imprison 
 the party, but can only fine him, not exceeding fifty dollars, or 
 imprison him not exceeding three months, at his discretion. 
 {id.) 
 
 The po-vyers above mentioned were conferred by the Eevised 
 Statutes. The act of April 17, 1857, {Laws of 1857, chap. 769,) 
 amendatory of the provisions of the Revised Statutes on the 
 subject, enumerates the powers above specified, and confers the 
 following in addition; upon the Courts of Special Sessions in 
 all counties except the city and county of New York, and the 
 city of Albany. 
 
 9. Charges for wilfully or maliciously destroying any public 
 or toll-bridge, or any turnpike gate. 
 
632 NEW YORK JUSTICE. 
 
 10. Charges against any person who shall be intoxicated 
 while engaged in running any locomotive engine upon any rail- 
 road, or while acting as a conductor of a car, or train of cars on 
 any such railroad. 
 
 11. Charges for setting up, or drawing unauthorized lotteries, 
 and for printing or publishing an account of any such illegal 
 lottery, game, or device; and for selling, or procuring lottery 
 tickets to be sold, and for offering for sale or distribution, any 
 property depending upon any lottery, and for selling any 
 chances in any lottery, contrary to the provisions of article 
 fourth, chapter twentieth, title eighth, of the fourth edition of 
 the Revised Statutes. 
 
 12. All charges for running, trotting, or pacing horses, or 
 any other animals. 
 
 13. All offences against the laws relating to excise, and the 
 regulations of taverns and groceries. 
 
 14. Charges for voting more than once at the same election, 
 or procuring illegal votes. 
 
 15. Charges for making or fending any slung shot, or any 
 similar' weapon. 
 
 16. Charges for unlawfully disclosing the fact of any indict- 
 ment being found. 
 
 17. Charges for unlawfully bringing to or carrying letters 
 from any state prison. 
 
 18. Charges for unlawfully, wilfully, or maliciously destroy- 
 ing or injuring any mill-dam, or embankment necessary for the 
 support of such dam. 
 
 19. Charges for unlawfully, intentionally, or wilfully injur- 
 ing any telegraph wire,'' post, pier, abutment, materials or pro- 
 perty belonging to any line of telegraph. 
 
 20. Charges for unlawfully, knowingly, and wilfully coun- 
 terfeiting any representation, likeness, similitude, or copy of 
 the private stamp, wrapper or label of any mechanic or manu- 
 fq,cturer. 
 
 21. Charges for malicious trespass on lands, trees, or timber, 
 or injuring any fruit or ornamental shade trees. 
 
 22. Charges for maliciously or wilfully breaking or lowering 
 any canal-walls, or wantonly opening any lock-gate, or destroy- 
 ing any bridge, or otherwise imlawfully injuring such canal or 
 bridge. 
 
JURISDICTION OF COXJETS OP SPECIAL SESSIONS. 633 
 
 23. Charges for unlawfully counterfeiting or defacing marks 
 on packages. 
 
 24. Charges for iinlawfuUy and negligently setting fire to 
 wood or fallow land, or allowing the same to extend to lands 
 of others, or unlawfully refusing to extinguish any fire. 
 
 25. Charges for unlawfully ctitting out, altering, or defacing 
 any mark on any logs, timber, wood, or plank floating in any 
 of the waters of this State, or lying on the banks or shores of 
 any such waters, or at any saw-mills, or on any island where 
 the same may have drifted. 
 
 The act goes on to provide as follows: 
 
 Courts of Special Sessions, except in the city and county of 
 2i[ew York, and city of Albany, shall, in the first instance, have 
 exclusive jurisdiction to hear and determine charges for crimes 
 and offences, within their respective counties in the cases in 
 this section mentioned, and their judgment, decision or deter- 
 mination may be appealed from in the manner hereinafter pro- 
 vided: 
 
 1. Charges against persons driving any carriages upon any 
 turnpike, road qv highway in this State, for running or permit- 
 ting their horses to run. 
 
 2. Charges for racing, running or testing the speed of any 
 horse, or other animals, within one mile of the place where any 
 court shall be sitting. 
 
 3. Charges for cruelty to animals contrary to law. 
 
 4. Charges for cheating at games. 
 
 5. Charges for winning or losing at any game or play, or by 
 any bet twenty-five dollars within twenty-four hours. 
 
 6. Charges for selling liquor in court house contrary to law, 
 and for selling liquor in jails contrary to law. 
 
 The act also provided for appeals from Courts of Special 
 Sessions to the Courts of Sessions, but such provisions having 
 reference to appeals have been repealed. {Laws of 1859, ;p. 
 794, chap. 339; but see chap. XI. infra.) 
 
 In the county of Monroe the jurisdiction of the Special Ses- 
 sions has been enlarged so as to include: 
 
 1. All cases of petit larceny not charged as a second offence. 
 
 2. Cas^s of assault and battery not charged to have been 
 eonmiitted riotously, or upon any public officer. 
 
 3. Cases of intoxication, arisizig under the seventeenth sec- 
 
634 NEW YORK JUSTICE. 
 
 tion of an act entitled, "An act to suppress intemperance, and 
 to regulate the sale of intoxicating liquors," passed April 16, 
 1857. {Laws of 1860, p. 87, chap. 57.) 
 
 It is also provided by the non-imprisonment act, that any 
 person who shall remove any of his property out of any county 
 with intent to prevent the same from being levied upon by any 
 execution, or who shall secrete, assign, or convey, or otherwise 
 dispose of any of his property, with intent to defraud any 
 creditor, or to prevent such property being made liable for the 
 payment of his debts, and any. person who shall receive such 
 property with such intent, shall, on conviction, be deemed 
 guilty of a misdemeanor; and, if the property be worth fifty 
 dollars or less, the offence may be tried by a Court of Special 
 Sessions of the Peace. {Laws of 1830, chap. 300, § 26.) 
 ' Courts of Special Sessions havejurisdiction, and power also, 
 to hear and determine charges for misdemeanors committed 
 within their respective counties, in the violation of any statute 
 prohibiting the selling or giving to any Indian residing in their 
 counties, any spirituous liquors or intoxicating drinks, and to 
 proceed thereon in the same manner (2 B. S. 711) as upon a 
 charge for an offence which, by the Revised Statutes, they have 
 the poweri to try; except, that they can exercise such jurisdic- 
 tion and power, without requiring the party charged to give 
 bail for his appearance at the next Criminal Court, and the 
 giving of sluch bail will not deprive the Court of Special Ses- 
 sions of its jurisdiction and power to proceed and try title 
 offender. {Laws of 1849, chap. 420, § 5.) If the offender is 
 convicted and fined, the costs and exijenses of the prosecution 
 must first be paid out of the fine, and then one moiety of the 
 residue must be paid into the treasury of the nation to which 
 the Indian to whom the liquor was sold belongs, or with which 
 he resides, or, if there is no treasury, then to the chiefs of such 
 tribe or nation, to be applied to the public purposes of the 
 tribe or nation; and the other moiety, into the treasury of the 
 county where such conviction is had. {Laws of 1849, chap. 
 420, § 6.) The person convicted of selling or giving any 
 liquors to any Indian, may be punished by a fine, of not less 
 than twenty-five nor more than fifty dollars, or by imprison- 
 ment in the county jail, for not more than thirty days, or by 
 both such fine and imprisonment; {td.(^l.) - _ 
 
DISPOSITION OF THE PRISONER WHILE AWAITING TRIAL. 635 
 
 j , 
 
 There are various statutory provisions respecting Courts of 
 Special Sessions in different cities and towns in the State, which 
 will be noticed hereafter. {Post, part II., chap. IX.) 
 
 2. By Whom Held. 
 
 We have already remarked, that Courts of Special Sessions 
 must be held by a single magistrate, and that all the provisions 
 of law applicable to the powers, duties, and proceedings of such 
 Courts apply to such magistrate and the proceedings before 
 him. {Ante, p. 559.) 
 
 Turning then to the statute prescribing the mode of proceed- 
 ing in Courts of Special Sessions as formerly constituted, we 
 find, that when a person charged with any of the offences above 
 enumerated, requests to be tried by a Court of Special Sessions, 
 it becomes the duty of the Justice, acting as such Court, to pro- 
 ceed and try him. (2 R. 8. 711, § 2.) If the person charged 
 does not make such request, but, after having been required'by 
 the magistrate, omits, for twenty-four hours after such require- 
 ment, to give bail for his appearance at the next Court having 
 jurisdiction of his offence, then the magistrate, acting as a Court 
 of Special Sessions, must proceed and try him. {id. 712, § 3.) 
 
 The statute {id. ^ 4) says: " If the person making such re- 
 quest, or refusing to give bail, shall have been brought before 
 a magistrate, not being a Justice of the Peape or a Judge of the 
 County Courts, such magistrate shall certify the facts to three 
 Justices of the Peace of the same county, q,nd require them to 
 meet to try such offender; and it shall be the duty of such three 
 Justices forthwith to meet for that purpose, at such time and 
 place as shall be specified in such certificate. In view, how- 
 ever, of the provisions of the 15th section of the act to reduce 
 the number of town officers, {Laws of 1845, chap. 180, § 15; 
 ante, p. 559,) it is no longer necessary that the facts should be 
 certified to three Justices of the Peace; but it will be sufficient 
 to, certify them to a single Justice, who, under the provisions 
 of the Revised Statutes and of the act of 1845 together, has au- 
 thority to proceed and try the offender. 
 
 , 3. Disposition of the Prisoner while Awaiting Trial. 
 ^^Du-rino- the twenty-four hours allowed to a prisoner to give 
 bail, he may be committed tojaUior safe-keeping, or be con- 
 
636 NEW YORK JUSTICE. 
 
 tinued in the custody of the officer arresting him, as the magis- 
 trate issuing the warrant of arrest shall direct; and, after the 
 Court of Special Sessions has convened, the prisoner must be 
 brought before it, and be continued in the custody of the officer 
 having him in charge, until the termination of the proceedings. 
 (2 R. 8. 712, § 5.) The Court of Special Sessions must cause 
 the prisoner to be brought before it, and, as soon as may be, 
 proceed to his trial, {id § 6.) 
 
 Kthe Justice commits the prisoner till the expiration of the 
 twenty-four hours, the following form may be used: 
 
 § 125. Warrant of Commitment of Prisoner to await Trial by 
 Court of Special Sessions. 
 County, iss: 
 To any constable of the said county, and to the keeper of the 
 common jail of said county, greeting: 
 
 "Whereas, W V has this day been brought before me, J H B, 
 one of the Justices of the Peace of the said county, charged, on 
 the oath of D A, with [state the offence^] and the said W V hav- 
 ing been required by me to give bail, and having omitted so to 
 do, [or, the said W V having requested to be tried by a Court 
 of Special Sessions:] These are, therefore, in the name of the 
 people of the State of New York, to command you, the said 
 constable, forthwith to convey and deliver the said W V into 
 the custody of the said keeper; and you, the said keeper, are 
 hereby required to receive the said W V into your custody in 
 the said jail, and him there safely keep, until he shall be re- 
 quired to be brought before a Court of Special Sessions for 
 trial, or shall otherwise be discharged according to law. 
 
 Given under my hand and seal [da<e] J H B, [l. s.J 
 
 Justice of the Peace. 
 
 § 126. Order to Jailer to brinq up Prisoner for Trial. 
 
 County, ss: 
 To the keeper of the common jail of the said county: You are 
 ■ hereby commanded forthwith to bring before me, J H B, a Justice 
 of the Peace of the said county, now holding a Court of Special 
 Sessions at my office in [name of town,] W V, now in your cus- 
 tody in said jail by virtue of a warrant of commitment signed 
 by me, and dated [date,] together with the said warrant, to the 
 end that he may be tried by me for the offence charged in the 
 said warrant. 
 
 Witness my hand thivS [toe.J 
 
 J H B, Justice of the Peace. 
 
THE TEIAL. 637 
 
 4. The Tkial. 
 The twenty-four iiours allowed to the prisoner by statute, in 
 which to give bail, having expired, and no bail being offered, it 
 becomes the duty of the Justice to proceed and try the prisoner. 
 For this purpose, he issues his order (the form for which has 
 just been given,) to the jailer in whose custody the prisoner 
 may be, commanding him to bring the prisoner before the Court 
 to be tried for the offence charged. 
 
 (1.) The prisoner's plea. 
 
 When the prisoner appears, the charge made against him, as 
 stated in the warrant of arrest or commitment, must be distinctly 
 read to him, and he must be required to plead thereto. The Jus- 
 tice must enter the plea in the minute of proceedings to be kept 
 by him. (2 R. 8. 712, \ 7.) The statute does not specify what 
 plea shall be entered by the Justice* when the prisoner refuses 
 to plead, but, in analogy to the provision applicable to Courts 
 of Eecord, it is presumed that when the prisoner stands mute 
 the Justice must enter a plea of not guilty, {id. 730, § 70.) 
 
 The prisoner is entitled to all pleas and matters of defence 
 before a Justice for an offence within his jui'isdiction, that he is 
 by law entitled to in the higher Courts. He may, therefore, 
 plead to the jurisdiction of the Justice, or demur to th^ com- 
 plaint, or plead in abatement, or put in any plea in bar, as well 
 as that of not guilty. {Barb. Criminal Law, 624; Davis' Jus- 
 tice, 80.) 
 
 A plea to the jurisdiction of the Justice is proper, where the 
 offence charged is one of which he has not cognizance. In such 
 a case the prisoner may except to the jurisdiction of the Court, 
 without answering at all to the crime charged. (4 Blacks. Oomm. 
 
 334.) 
 
 § 127. Plea to the Junsdiction. 
 
 William Vantine | ^^^^^^ J H B, a Justice of the Peace in 
 
 m, "^^' 1 I and for the county of 
 
 The People. j •' 
 
 The said William Vantine, havi'ng heard the complaint against 
 
 him read, says,* that this Court ought not to take cognizance of 
 
 the burglary in the said complaint charged, because, protesting 
 
 that he is not guilty of the same, he says the crime of burglary 
 
 in the second degree is not cognizable by this Court, but is only 
 
638 NEW YORK JUSTICE. 
 
 cognizable in a Court of Sessions or of Oyer and Terminer; and 
 this lie the said defendant is ready to verify; wherefore, he 
 prays judgment, if this Court will or ought to take cognizance of 
 the complaint aforesaid, and that he rnay be hence dismissed, &c. 
 
 William Vantine. 
 
 A demurrer to the complaint is incident to criminal as well as 
 civil proceedings, and is interposed by the defendant when he 
 admits the truth of the matters charged in the complaint, but 
 insists that they do not amount to the crime alleged, or to any 
 crime whatever. (4 Blacks. Oonim. 334.) This pleading, how- 
 ever, is seldom used, as the prisoner can make the objection 
 with the same effect under the "plea oi not guilty. 
 
 If the demurrer is sustained by the Justice, the prisoner must 
 be discharged; if it be overruled, the judgment is the same as 
 in civil cases. i^Barb. Orim. Law, 347; Ante, p. 213.) 
 
 § 128. Demurrer to the Complaint.^ 
 
 {As in § 127 to the * and then add:'\ that the said complaint, 
 and the matters therein charged and contained, are not sufficient 
 in law, and that he the said William Vantine is not bound by law 
 to answer the same; and this he is ready to verify; wherefore, 
 for want of a good and sufficient complaint in his behalf, the 
 said William Vantine prays judgment, and that he may, by the 
 Court now here, be dismissed and discharged from the premises 
 in the said complaint specified. 
 
 William Vajjo^ini:. 
 
 A plea in abatement is generally for a misnomer. (4 Blacks. 
 Comm. 334.) But little advantage accrues to the prisoner from 
 a plea in abatement, because, if it be allowed, a new process 
 may be issued, according to what the prisoner avers in his plea 
 to be his true name. (id. 335; Davis' Justice, 80.) A plea in 
 abatement to an indictment in a higher criminal Court is required 
 by statute to be verified, and it is presumed it must be verified, 
 if interposed to a complaint in a Court of Sessions. (2 B. S. 
 731, § 71.) 
 
 § 129. Blea in Abatement. 
 Walter Vantine ) ^^^^^.^ j H B, a Justice of the Peace in 
 
 The People. J ^""^ ^°^ *^^ '^'^"^^^ °^ 
 
 William Vantine, who is complained of here by the name of 
 Walter Vantine, having heard the said compltiint read, says, 
 
THE prisoner's PLEA. 639 
 
 that he was baptized by the name of William Vantine, and by 
 the Christian name of William hath always since his baptism 
 hitherto been known and called, and that he has never been 
 called or known by the name of Walter, as in said complaint 
 supposed; and this he the said defendant is ready to verify; 
 wherefore, he prays judgment of the said complaint, and that 
 the same may be quashed, &c. 
 
 William VjUsrTmE. 
 
 County, ss: William Vantine, who is complained of by 
 the name of Walter Vantine, being sworn, says, that the above 
 plea is true in substance and in matter of fact. 
 
 Sworn, &c., [as in § 57.] William Vantine. 
 
 A special plea in bar goes to the merits of the complaint and 
 prosecution, and gives a reason why the party ought not to 
 answer at all, or be put on trial for the crime alleged. (4 
 Blacks. Oomm. 335; Davis' Justice, 80.) 
 
 Special pleas in bar in criminal cases may be classed under two 
 heads: 1. Former acquittal; and 2. Former conviction. If the 
 prisoner in either case proves his plea, it is a bar to any other or 
 further proceedings against him for the same offence, {id. 81; 
 4 Blacks. Oomm. 335, 336.) The reason for allowing these 
 pleas is found in the provision of the Constitution of the State 
 of New York, which declares, that no person shall be subject 
 to be twice put in jeopardy for the same offence. {Const, of 
 1846, Art. i. sec. 6.) If the plea is determined against the 
 prisoner, the Justice should permit him to plead anew. 
 {Davis' Justice, 81.) 
 
 § 130. Special Plea in Bar. 
 
 [As in § 127 to the *, and then add:] that the said Pe6ple 
 ouo-ht not further to prosecute the said complaint against him, 
 the said W V, because he saith that [insert the special plea;] 
 and this he the said William Vantine is ready to verify; where- 
 fore, he prays judgment, and that, by the Court here, he may be 
 discharged, &c. William Vantine. 
 
 (2.) Trial hy the Justice. 
 The prisoner may be tried with or without a jury, at his elec- 
 tion; and, if no jury be demanded, the Justice must proceed and 
 himself try the issue raised by the plea, and determine the same 
 according to the evidence which may be produced against and 
 
640 ' NEW YORK JtrSTlCE, 
 
 in behalf of the defendant.. {Laws of 1845, chap. 180, § 15* 
 2 72. /S'. 224, §4; id. 712, §8.) 
 
 (3.) Trial by a Jury. 
 
 After the issue is joined, and beft^re the Court has proceeded 
 to an investigation of the merits of the case by the hearing of 
 any testimony, the defendant may demand that he be tried by a 
 jury. {id. § 9.) This demand must be made before the hear- 
 ing of any testimony, that is, before any witnesses have been 
 examined, and when so made the Justice is bound to comply 
 with it. It is not absolutely necessary, to support a conviction, 
 that the Justice should inform the prisoner of his right to be 
 tried by a jury, or that the prisoner should expressly waive it. 
 {Peojple vs. Goodwin, 5 Wend. 251.) As, however, there can 
 be no object in keeping from the prisoner the knowledge of his 
 right to be tried by a jury, it seems to be proper that the Jus- 
 tice should inform him of the privilege granted him by statute. 
 It may be that he vnll be glad to exercise it; if otherwise, he 
 can waive it. {Crermond et al. vs.. People, 1 Hill, 343.) 
 
 If the prisoner demands to be tried by a jury, his demand is 
 to be complied with in the following manner: The Justice must 
 issue a venire, directed to any constable of the county, or mar- 
 shal of the city, where the oifence is to be tried, commanding 
 him to summon twelve good and lawful men, qualified to serve 
 as jurors, and not exempt from such service by law, and who 
 shall be in nowise of kin either to the complainant or the; de- 
 fendant, to be and appear before such Justice, at a time not 
 more than three days from the date of the venire, and at a place 
 to be named therein, to make a jury for the trial of such offence. 
 (2 R. 8. 712, \ 9.) (As to what pei'sons are exempt from ser- 
 vice as jurors, see ante, p. 285.) 
 
 § 131. Vemre. 
 To-^n, [or, city] of , K^. 
 
 County, ) 
 To any constable of the said county, [or, to any marshal of the 
 said city,] greeting: 
 
 The People of the State of New York command you to sum- 
 mon twelve good and lawful men ni the town [or, city] of 
 , qualified to serve as jurors and not exempt from 
 such service by law, and who are in nowise of kin either to 
 David Abbott or to William Vantine, to be and appear before 
 
VENIRE. 641 
 
 toe, now holding a Court of Special Sessions, at my office in the 
 to-wn [or, city] of , on the day of instant, 
 
 at o'clock in the noon, [or, forthwith,] to make a 
 
 jury for the trial of said William Vantine on a charge [as the 
 charge may be;] and have you then there this precept, with a 
 certified list of the persons you have summoned, annexed to the 
 s^me. 
 
 Witness my hand this [date,] 
 
 J H B, Justice of the Peace. 
 
 The officer to whom a venire is delivered, must execute th® 
 same fah'ly and impartially, and must not summon any person 
 whom he suspects to be biased or prejudiced for or against the 
 defendant. He must summon the juroi-s personally, and must 
 make lists of the persons summoned, wliich he is to certify, and 
 annex to the venire, and return with it to the Court. (2 R. 8. 
 713, § 10.) 
 
 The names of the persons so returned are to be respectively 
 written on several and distinct pieces of paper, as nearly of one 
 size^as may be; and the officer by whom the venire was served, 
 must, in the presence of the Court, roll or fold up such pieces 
 of paper as nearly as may be in the same manner, and put them 
 together in a box or other convenient thing. The Court is then 
 to draw out six of such papers, one after another, and, if any 
 of the persons whose names are drawn do not appear, or are 
 challenged or set aside, then such further number is to be dra,wn 
 as will be sufficient to make up the number of six after all legal 
 causes of challenge have been allowed. If a sufficient number 
 of competent jurors is not drawn, the Court may supply the 
 deficiency by directing the constable to summon any of the by* 
 standers, or, others, who may be competent, and against whom 
 no cause of challenge appears, to act as jurors in the cause, (^d. 
 ^^ 11 to 14.) 
 
 The Court has no authority to try a person on a criminal 
 charge, by a jury of less than six. (1 Hill, 343; iut see People 
 vs. Johnson, 2 Park. Cr. 322.) 
 
 If the officer to whom the venire was delivered does not re- 
 turn the same as thereby required, the Court must issue a new 
 Venire, upon which the same proceedings are to be had as in 
 respect to the &vst venire. (2 P. S. 713, § 14.) 
 
 The prisoner is entitled to challenge pereiiiptorily two of the 
 41 
 
64-2 NEW YOEK JUSTICE, 
 
 jurors drawn, {Laws of 1847, cliap. 134,) and to challenge for 
 cause as many as he may see fit. (As to challenges of jurors 
 for cause, and to the powers of Courts to discharge and excuse 
 jurors, see ante, p. 290.) 
 
 The jurors are not entitled to any fees. If they fail to appear, 
 they are subject to like penalties, and may be proceeded against 
 in the same manner as jurors who refuse to appear in a Justice's 
 Court. (2 R. 8. 716, .§ 36, 37; ante, p. 284.) 
 
 To each jui'or the Justice must administer the following oath 
 or affirmation: 
 
 You do swear, in the presence of Almighty God, [or "you 
 do solemnly affirm," as the case may 6e,] that you will well and 
 truly try this traverse between the People of the State of New 
 York and the defendant, and a true verdict give 
 
 according to the evidence, unless discharged by the Court. (2 
 R. 8. 713, § 15.) 
 
 After the jury are sworn, they are to sit together and hear 
 the proofs and allegations in the case, which are to be delivered 
 in public and in presence of the defendant, {id. § 17.) 
 
 (4.) Witnesses. 
 
 At the time of issuing the venire, the Justice, if he has not 
 before done so, should issue subpcBuas for the witnesses, and 
 deliver them to the officer to be served, {id. 716, § 35.) He 
 must endorse upon tiae b^ck of each subpoena a memorandum, 
 showing whether the same was issued for the people or for th& 
 prisoner. {Laws of 1845, chap. 188, § 18.) Every officer or 
 person who inserts the names pf witnesses intended for the pris- 
 oner, in a subpoena issued for the people, with intent thereby 
 to deceive any person, or to obtain any pay as for services in 
 subpoenaing witnesses for the people, is guilty of a misde- 
 meanor, {id.) The Justice is not entitled to charge for more 
 than six subpoenas in any one criminal case, and the board of 
 supervisors are not 'to allow any charge for issuing or serving 
 any subpcena, in any criminal case or proceeding, issued or 
 served on behalf of a defendant, {id.) 
 
 The witnesses are not entitled to any fees. If they refuse to 
 obey the subpoena, they may be proceeded against in the same 
 manner as witnesses who refuse to appear in a Justice's Court. 
 (2 Ri 8. 716, §§ 36, 37; ante, pp. 272, 275.) 
 
EVIDENCE. 643 
 
 § 132. Subpoena. 
 County, ss: 
 The People of the State of New York, to \witnesses^ names, \ 
 
 greeting: 
 
 We command and enjoin you, and each of you, that, all busi- 
 ness and excuses being laid aside, you and each of you be and 
 appear before the undersigned, one of the Justices of the Peace 
 of the said county, now holding a Court of Special Sessions, at 
 his office in ' , in said county, on the day of , 
 
 at o'clock in the noon, \or, forthwith,] then and 
 
 there to testify to those things which you or either of you know, 
 in a certain matter then and there to be tried, between the people 
 of the State of New York, and W V, on the part of the said 
 people, [or, W V.] Hereof fail not at your peril. 
 
 Witness my hand this day of , 1853. 
 
 J H B, Justice of the Peace. 
 
 The Justice must administer the proper oath to the witnesses. 
 (2 R. 8. 716, § 35.) The provisions of law as to the mode of 
 administering oaths have been heretofore cited, {ante, pp. 295, 
 296.) The following form may be used where the person who 
 swears lays his hand upon and kisses the Gospels: {id. 407, § 82.) 
 
 & 133. Oath to Witness. 
 
 You do swear that the evidence you shall give on this issue 
 of traverse between the people of the State of New York, and 
 W V, the defendant, shall be the truth, the whole truth, and 
 nothing but the truth, so help you God. 
 
 Where the witness desires to swear without laying his hand 
 upon or Idssing the Gospels, {id. § 83,) or is permitted to affirm, 
 {id. \ 84,) the foregoing form may l?e varied as in Forms § 42 
 and \ 43, {ante, p. 295.) 
 
 (5.) Evidence. 
 
 The subject of evidence has already been considered in a 
 former part of this work, but it may not be improper here to 
 state a few of the general rules which should govern the Justice 
 in -the arimission or rejection of testimony in criminal proceed- 
 ings. 
 
 The prosecution cannot give evidence of the prisoner's charac- 
 ter, unless the prisoner has himself called witnesses in support 
 
644 NEW YORK JUSTICE. 
 
 of it; and even then the prosecution cannot call witnesses as to 
 particular facts. {People vs. White, 14 Wend. 111.) 
 
 Evidence of a good character is of no avail in a clear case. 
 (Barb. Grim. Law, 395.) 
 
 Where the prisoner pleads not guilty, the prosecution must 
 prove every fact and circumstance which is material and neces- 
 sary to constitute the offence. («c?.) And the offence must be 
 proved to have been committed in the county of the Justice 
 holding the Court, or he has no jurisdiction. (2 B,. S. 711, ^ 
 1; 1 Gliitty's Grim. Law, 559.) 
 
 A particular time, unless where it enters into the essence of 
 the offence, as in burglary, need not be precisely proved, though 
 stated in the charge. {Barh. Grim. Law, 397.) 
 
 If the offence charged relates to the taking of certain specified 
 goods, the evidence must correspond with the description of 
 goods charged in the warrant of arrest or commitment. (^Arch- 
 bold'' s Grim. Plead. QQ.) A charge of stealing boots is not sup- 
 ported by evidence of stealing a pair of shoes, {id.) 
 
 Proof of a particular value or sum charged, is not necessary, 
 unless it forms the essence of the offence, or is matter of descrip- 
 tion, as in forgery. {King vs. Gillam, 6 Term Rep. 265.) 
 
 The identity of the prisoner must be established, and this is a 
 question for the jury. {Barb. Grim. iaz<;, 398.) 
 
 It lies upon the prosecution to prove the commission of the 
 offence, and not upon the prisoner to prove his innocence. (1 
 Ghitty^s Grim. Law, 564) 
 
 As a general rule, a husband and wife cannot be witnesses 
 either for or against each other. {Ante, p. 361.) 
 
 The credibility of witnesses is governed by rules similar to 
 those which apply in civil cases, (I CMtty''s Crim. Law, 350,) 
 which have already been stated. {Ante, p..?>ld.') 
 
 (6.) Verdict of the Jury. 
 
 After hearing the proofs and allegations, the jury are to be 
 kept together, in some convenient place, imtil they agree on a 
 Verdict, or are discharged by the Court; and a constable or mar- 
 shal must be sworn to keep them, in like manner as upon a trial 
 in a Justice's Court. (2 R. S. 713, ^ 17; Ante, p. 301.) The 
 constable is bound to take chai'ge of the jury, aiid may, if he 
 
GENERAL KTJLES. 645 
 
 refuses, be punished by a fine not exceeding twenty-five dollars. 
 (2 R. 8. 553, § 5.) 
 
 § 134. Constable^s Oath on retiring with Jury. 
 
 You do swear, in the presence of Almighty God, that you 
 will, to the utmost of your ability, keep the persons sworn as 
 jurors on this trial, together in some private and convenient 
 place, without any meat or drink, except such as shall be ordered 
 \ij me; that you will not suffer any communication, orally or 
 otherwise, to be made to them; that you will not communicate 
 with them yourself, orally or otherwise, unless by my order, or 
 to ask them whether they have agreed on their verdict, until 
 they shall be discharged; and that you will not, before they 
 render their verdict, coimnunicate to any person the state of 
 their deliberations, or the verdict they agreed on. 
 
 (7.) General Rules. 
 
 When the jurors have determined upon their verdict they are 
 to deliver the same to the Court, publicly, and the Justice 
 must enter it in the minute of the proceedings to be kept by 
 him. (2 R.,8. 718, § 18.) 
 
 The Court has the power, and it is its duty, to issue a second 
 venire for a jury to try a defendant in a criminal case, if the first 
 jijry are discharged because they cannot agree upon a verdict. 
 {J^anderwerker vs. The People, 5 Wend- 530.) 
 
 No Court can be opened, or transact any business, on Sunday, 
 unless it be for the purpose of receiving a verdict or discharging 
 a jury; and every adjournment of a Court on Saturday to 
 another day, must always be to some other day than Sunday, 
 except such adjournment as may be made after a cause has been 
 committed to a jury. (2 R. 8. 275, § 7.) Wher6 a cause was 
 submitted to a jury at two o'clock in the morning of Sunday, 
 and the jury rendered their verdict about three o'clock, it was 
 held, that the conviction was erroneous, and it was reversed. 
 {Pulling vs. The People, 8 Rarl). 384.) A case may be 
 adjourned from Saturday until Monday, and such adjournment 
 will not be a keeping of the Court open on Sunday, within the 
 meaning of the statute, {yanderuoerher vs. The PeopU, 5 
 Wend. 530.) 
 
 If, after the trial is commenced, it is postponed at the request 
 of the prisoner, for several days, and the jury are allowed to 
 
646 NEW TOKK JUSTICE. 
 
 separate, under instructions from the Court not to converse witli 
 any one in relation to the case, such postponement constitutes 
 no reason for reversing the conviction. {BebeeYS. The Peoj)le, 
 5 Hill, 32.) 
 
 5. Pboceedings Subsequent to a Trial. 
 
 When the defendant is convicted, the Court must render 
 judgment, and award such punishment, by fine or imprisonment, 
 or both, as the nature of the case may require; but such fine 
 can in no case exceed fifty dollars, nor such imprisonment six 
 months. (2 B. S. 714, \ 19.) 
 
 On a conviction of any of the ofiences heretofore specified, 
 {Ante, .pp. 629 to 635,) as vrithin theJurisdiction of Courts of 
 Special Sessions, the Justice may fine or imprison, or both, 
 (always, however,) within the limit of a fine not exceeding fifty 
 dollars, and imprisonment not exceeding six months,) except in 
 the cases of selling poisons without labels, and of defacing or 
 destroying mile posts, &c., in regard to which the punishment 
 that may be awarded by the Justice has been heretofore stated. 
 {Ante, p. 630.) 
 
 If the prisoner is acquitted, he must be immediately dis- 
 charged. (2 R. 8. 714, ^ 20.) It is not necessary that a 
 defendant in a criminal proceeding should be present in Court 
 when judgment is pronounced, except when corporal jDunish- 
 ment is to be awarded. {Son vs. The People, 12 Wend. 344.) 
 
 The Justice must keep minutes of the proceedings' had before 
 him on the trial. They may be in the following form: 
 
 % 135. Minvtes of Proceedings. 
 
 County, ss: Minutes of a Court of Special Sessions 
 held at \city, or town,] in said county, before J H B, Esquire, a 
 Justice of the Peace of the said county, for the trial of "William 
 Vantine, charged before the said Justice, by D A, with [state 
 the offence.] 
 
 December 16th, 1852. The Court convened at the office of the 
 said J H B, at 10 o'clock A. M., the said complainant and de- 
 fendant being both present. The defendant was arraigned, and 
 the complaint was read to him, [or, the charge made was stated 
 to him;] whereupon he pleaded not guilty, and demanded a 
 trial by jury. A venire was issued to Norman Parker, consta- 
 ble, returning forthwith, and the persons summoned as jurors 
 
PROCEEDINGS SUBSEQUENT TO THE TRIAL. 647 
 
 appearing,' six were drawn and sworn as jurors, as follows: 
 [i^isert nmnes.] The following witnesses were sworn on behalf 
 of the people: [insert names;] and the following on the part 
 of the prisoner: [insert names.] After hearing the proofs, the 
 jury retired under the charge of said Parker, and at 12 M. 
 returned into Court, and declared that they found the prisoner 
 guilty. Whereupon, the said William Vantine was sentenced 
 by me to pay a fine of [ten dollars,] and to be imprisoned in 
 the county jail for [ten] days. 
 
 J H B, Justice of the Peace. 
 
 After the prisoner has been convicted, the Justice must make 
 up and sign a certificate of conviction, in which he must state 
 briefly the offence charged, the conviction, and the judgment 
 thereon, and, if any fine has been collected, the amount thereof, 
 and to whom paid. This certificate is to be filed, within twenty 
 days after the conviction, in the office of the clerk of the county 
 in which the conviction was had. (2 B. iS. 717, §§ 38, 39.) 
 
 § 13§. Certificate of Conviction at Special Sessions. 
 State of New York, 
 
 County, ^ 
 
 Be it remembered, that at a Court of Special Sessions, held 
 by the undersigned, a Justice of the Peace of the said county, 
 this day of , 18 , at his office in the town 
 
 of , in said county, W V was brought before the said 
 
 Court, charged on the oath of D A, with having, on the 
 day of , 18 , at the town of , in said county, 
 
 &c., [state the offence:] which charge, [or, charges,] being stated 
 in the warrant by me issued, [or, issued by S T, Esq., one of 
 the Justices of the Peace of the said county,] was [or, were] 
 distinctly read to the defendant in open Court to which he 
 pleaded not guilty, [or, guilty:] whereupon such proceedings 
 were had m the said Court, that the defendant was convicted 
 of the charge [or, charges] above specified,* and the Court ren- 
 dered judgment thereon, that the said W V, &c., [as the judg- 
 ment may be.] 
 
 In witness whereof, I have subscribed these presents, the 
 day of 18 . 
 
 J H B, Justice of the Peace. 
 
 This certificate, or a duly certified copy thereof, is evidence 
 in all Courts and places,' of the facts stated therein, (2 JR. S. 
 717, § 41,) and will be received as such, in a collateral pro- 
 
C48 NEW YORK JUSTICE. 
 
 ceeding, although it does not show that the Court had obtained 
 jurisdiction of the person of the prisoner. (^People vs. Powers, 
 7 Barb. 462; S. C. 2 Seld. 50.) It should, however, state 
 sufficient to show an offence within the jurisdiction of the Jus- 
 tice, [Powers vs. People, 4 Johns. 292,) and the place where 
 the offence was committed should appear. 
 
 The fine imposed by" the Justice, if paid before commitment, 
 must be received by him and applied to the payment of the 
 charges of apprehending and prosecuting the offender; and, 
 after deducting the sums allowed therefor, the remainder, if 
 any, must be paid by the Justice, within thirty days after the 
 receipt thereof, to the county treasurer, for the use of such 
 county. (2 E. S. 716, § 32.) If the defendant is acquitted, 
 he is to be discharged without being required to pay any fees. 
 (M. 716, § 38.) 
 
 The judgment of the Court must be executed by the sheriff, 
 constables, and marshals of the county, or city and county, in 
 which a conviction is had, by virtue of a warrant, under the 
 hand of the magistrate who held the Court, to be directed to 
 such officers, or to such of them as may be necessary, and spe- 
 cifying the particulars of the judgment, (id. 716, § 31.) 
 
 A warrant of commitment issued by a Justice of the Peace 
 upon a conviction for petit larceny, is void, unless it be directed 
 to the officer, or class of officers, by whom it is to be executed; 
 and will afford no protection to the constable who executes it. 
 The Legislature, by the section of the statute relative to war- 
 rants of commitment issued by Courts of Special Sessions, did 
 not intend to prescribe any form for such warrants, or to vary 
 the copimon law rule respecting .them. Hence a warrant which 
 would be good at common law is good under the statute. [Biis- 
 seU vs. I{v^ba)'d, 6 Barb. 654.) 
 
 ^ 137. Wan^ant of Commitment from Special Sessions. 
 State of New York, ) 
 County, ) 
 To any constable of the said county, greeting: ^ 
 
 At a Court of Special Sessions, duly held by the undersigned, 
 &c., [as in § 136, to the *, and then addi] and the Court having 
 rendered judgment thereon, that the said W V, &c., [as the 
 jvdgment may be;'\ Therefore the people of the State of New 
 Tof k command, you to convey the said W V to the common jail 
 
PROCEEDINGS SUBSEQUENT TO THE TRIAL. 649 
 
 of the said county, the keeper whereof is hereby required to keep 
 him in safe custody in the said jail, until the judgment so ren- 
 dered be satisfied, or he be discharged by due course of law. 
 Witness my hand, this day of ^. , 18 . 
 
 J H B, Justice of the Peace. 
 
 This warrant must be executed by the officer to whom it is 
 directed and delivered; and if he refuses, he is liable to a fine 
 not exceeding twenty-five dollars. (2 R. S. 552, § 3.) ' 
 
 If a fine is imposed upon the defendant, and he does not pay 
 it until after he is committed to prison, he must pay it to the 
 sheriff of the county, by whom it is to be paid to the county 
 treasurer, to be applied in the same manner as if it had been paid 
 to the Justice holding the Court, (id. 716, § 33.) 
 
 If the Justice ot the shex'iff neglect to pay to the county 
 treasurer the fines received by them respectively, or the part 
 that is to be jpaid to him after deducting the charges before men- 
 tiqned, (Ante, p. 648,) it is his duty immediately to commence 
 a suit therefor, and prosecute it to effect. (2 R. S. 716, § 34.) 
 
 The prisoner may apply to the County Court of the county in 
 which he was convicted, for the remission of the fine imposed 
 upon him, and that Court may remit the fine, but cannot dis- 
 charge him from the imprisonment. (Code, § 30; 2 R. jS. 486, 
 § 37.) If the fine, however, was imposed for a contempt of 
 Court, it cannot be remitted, (id. § 38.) i 
 
 Whenever any person mider the age of sixteen years is con- 
 victed of any crime in the first, second and third judicial dis- 
 tricts, the Court, instead of sentencing such person to imprison- 
 ment in the county jail, may order that he be removed to and 
 confined in the House of Refuge established by the society for 
 the reformation of juvenile delinquents in the city of New 
 York. (id. 701, § 17; Zaius of 1840, chap. 100.) 
 
 It is made the duty of every Court or magistrate by whom 
 any person may be sentenced, in the county of Dutchess, for a 
 term of not less than two months, for any crime or misdemeanor 
 punishable by imprisonment in the county jail, to sentence such 
 person to imprisonment in the Albany Penitentiary. (Laws of 
 1855, chap. 402.) 
 
 And whenever any person under the age of twenty-one and 
 above the age of sixteen years shall be convicted of an offence 
 punishable with imprisonment in the State prison, in a judicial 
 
650 NEW YORK JUSTICE. 
 
 district having a penitentiary within it, the Court may, in its 
 discretion, sentence the person convicted to imprisonment in 
 such penitentiary. {Laws of 1856, c/iop. 158.) 
 
 The several Courts having criminal jurisdiction,, and who 
 shall hold Courts, within the limits of the fourth, fifth, sixth, 
 seventh and eighth judicial districts, are required to order all 
 juvenile delinquents by them respectively sentenced, to be re- 
 moved to the western House of Refuge for juvenile delinquents 
 in the city of Rochester. [Laws of 1850, cha/p. 24, ^ 1.) 
 
 The Courts of criminal jurisdiction, and the several magis- 
 trates, of the county of Monroe, may also, in their discretion, 
 send to the House of Refuge in Rochester, any male under the 
 age of sixteen years who may be convicted before them as a 
 vagrant. {Laws of 1846, chaj). 143, § 16; Laws of 1850, cTiap. 
 304.) 
 
 Every Court so sending a juvenile delinquent to a house of 
 refuge, must ascertain, by such proof as may be in its power, 
 the age of every person so sentenced, and insert such age in the 
 order of commitment. {Laws of 1852, chap. 387, § 2.) 
 
 6. Judgment when the Complaint was Malicious. • 
 The Revised Statutes provide that whenever a defendant, 
 tried by a Court of Special Sessions, is acquitted, he shall be 
 immediately discharged, and,, if the Court before which the trial 
 was had, certify in its minutes that the complaint was wilful 
 and malicious, and without probable cause, it is the duty of the 
 complainant to pay all costs that shall have accrued to the 
 Court and constable, in the proceedings had upon such com- 
 plaint, or to give satisfactoiy security, by a bond to the people 
 of this State, to pay the same in thirty days after the trial. If 
 the complainant refuses or neglects to pay such costs, or to give 
 the security, the Court may forthwith enter judgment against 
 him for the amount of the costs, and commit him to the jail of 
 the county where the trial was had, there to remain in like man- 
 ner, and for the same time, as if committed on a Justice's execu- 
 tion in a civil cause, until he shall satisfy such judgment, with 
 the costs of the commitment, or until he' shall be discharged by 
 due course of law. (2 B. S. 714, §§ 20, 21.) But these pro- 
 visions of the statute, are, it is supposed, virtually repealed by 
 the 16th section of the act of May 10th, 1845, which is in these 
 
SPECIAL SESSIONS IN PAKTICULAB LOCALITIES. 651 
 
 words: "Whenever a magistrate or jury before whom a crim- 
 inal cause shall be tried, under the provisions of this act, shall 
 be satisfied from the evidence and proceedings had before them, 
 that the person or persons charged and tried, were complained 
 of and proceeded against without probable cause, and with ma- 
 licious intent to injure or harass, they may render a verdict for 
 costs against the complainant; whereupon the magistrate shall 
 enter judgment for the amount of such costs, upon which an 
 execution may issue against the property or person of such com- 
 plainant, in the same manner as upon a judgment rendered for 
 a tort by a Justice of the Peace. {Laws of 1845, chap. 180, § 
 16.) As to executions for torts, see ante v. 473. 
 
 CHAPTER IX. 
 
 OF COURTS OF SPECIAL SESSIONS IN PAETICULAR 
 LOCALITIES. 
 
 Albamj.] The act of March 27th, 1849, {Laios o/1849, chap. 
 150, §§ 1 to 5,) provides as follows: 
 
 § 1. " There shall be held in the city hall of Albany, on Tues- 
 day of each week, by the recorder of said city, or in case of 
 his absence or inability, by the county judge of the city and 
 county of Albany, together with one or more of the Justices of 
 the Peace of the said city, to be associated with such recorder 
 or judge, a Court of Special Sessions, which shall have power 
 to hear and determine all cases of petit larceny charged as a 
 first offence, and all misdemeanors not being infamous crimes; 
 and which may be held and continued for such length of time 
 as the said court shall deem proper. 
 
 § 2. Upon charges for offences triable by the said Court, the 
 police magistrate, and other magistrates in the said city hearing 
 the same, may take recognizances in the cases provided by law, 
 returnable at the said Court; and all such recognizances as shall 
 have been so taken, shall be returned to and ^led with the 
 
652 NEW YORK JUSTICE. 
 
 county clei'k of Albany county, who shall be the clerk of the 
 said Court, and shall attend the same in person or by deputy. 
 
 § 3. All complaints and examinations taken by such magis- 
 trates shall, on or before Saturday of the week preceding any 
 term of the ^aid Court, be delivered to the district attorney of 
 the county of Albany. 
 
 § 4. It shall be the duty of the district attorney in person, or 
 by his assistant, to attend the. said Court and conduct the pro- 
 ceedings and trials therein, in behalf of the people of this State; 
 and he shall have the same power to issue subpcenas for wit- 
 nesses to attend the said Court, as in cases triable in the Court 
 of Oyer and Terminer, and disobedience thereto may be punish- 
 ed by the said Court of Special Sessions in the same manner as 
 the Court of Oyer and Terminer in like cases. 
 
 § 5. The complaint and charge against the accused shall be 
 tried, and the proceedings thereon shall be had in all respects 
 as provided in articles first and third of title third, chapter two, 
 of the fourth part of the Revised Statutes, except as herein 
 otherwise provided, and except that the party accused shall not 
 be required to give bail to appear at any other Court of crim- 
 inal jurisdiction; nor shall the giving of any such bail deprive 
 the said Court of the jurisdiction herein conferred, imless the 
 county judge,; or a Justice of the Supreme Court, shall certify 
 that the charge is one which ought to be tried in some other 
 Criminal Court." 
 
 The charge made against the defendant, as stated in the war- 
 rant of arrest or commitment, or in the complaint preferred be- 
 fore the magistrate who issued the warrant or commitment, must 
 be distinctly read to such defendant, who must be required to 
 plead thereto: {Laws of 1851, chap. 481, \ 2.) 
 
 The act of 1849 {Laws of 1849, chap. 150, §§ 6 to 10) further 
 provides: 
 
 " § 6. The clerk of the said Court shall enter all its proceedings 
 and its sentences or all convictions had therein, in full, in a book 
 of minutes to be by him kept for that ]5urpose, and he may ad- 
 minister all oaths and affirmations required by law to be admin- 
 istered in the said Coyrt. 
 
 \ 7. The clerk of the said Court shall malce out and deliver 
 to the sheriff of the said county, or to any constable of the said 
 city, a transcript of the entry in the said book*of minutes, of 
 
SPECIAL SESSIONS IN PAETICULAE LOCALITIES, 653 
 
 every couyiction made by the said Court, aRd of the sentence 
 thereon, which, being duly certified by the said clerk, shall be 
 sufficient authority to such sheriff or other officer to execute 
 such sentence, and he shall execute the same accordingly. 
 
 § 8. AH fines imposed by the sjiid Court shall be paid to the 
 clerk thereof, or to the sherifi' of the said city and county, who 
 shall within ten days after the receipt thereof, pay the same to 
 the chamberlain of the said city, in the same manner and sub- 
 ject to the same penalties for neglect, as provided in respect to 
 fines imposed by Courts of General Sessions. 
 
 § 9. It shall not be necessary to file any certificate of a con- 
 viction made by the said Court, but a duly certified copy of the 
 entry of any such conviction, made by the clerk of the said 
 Court in the said book of minutes, shall be evidence in all 
 Courts and places, of the facts stated therein." 
 
 The Court of Special Se^ions, as thus organized^ has power 
 to take recognizances to appear before the said Court at any 
 succeeding term or session, from any person charged with any 
 crime or misdemeanor triable therein, and also to enforce sen- 
 tence of fine, or imprisonment, or both, in the discretion of the 
 Court, in all cases within its jurisdiction, upon conviction, to 
 the same extent that is conferred by law upon the Court of Ses- 
 sions of Albany county, upon conviction for like o^ences. {Laws 
 o/' 1851, c^ap. 481, § 1.) 
 
 Whenever any person recognized to appear at the said Court 
 of Special Sessions, to answer for a complaint for any criminal 
 offence triable therein, neglects to appear agi'eeably to the re- 
 quirements of such recognizance, or at axij term of such Court 
 to which the trial of such person upon such complaint may have 
 been postponed, said Court has power to issue a warrant for 
 the arrest of such person, which warrant must command the 
 officer executing the same, to bring the party forthwith before 
 such Court, if it be in session at the time of such arrest, and if 
 not, then to commit him to the common jail of the county, there 
 to remain till delivered by due course of law. {Laws of 1852, 
 chap. 265.) 
 
 No Court of Special Sessions of the Peace organized in any 
 town adjoining the city of Albany, has jurisdiction of any crim- 
 inal offence charged to have been committed within the limits 
 ef that city, imless a majority of such Court consist of magis- 
 
654 
 
 NEW YORK JUSTICE. 
 
 trates of tjie said city residing within the same. {Laws of 1841, 
 chap. 156, § 2.) Under the provisions of the statute requiring 
 Courts of Special Sessions to be held by a single magistrate, it 
 is supposed that the foregoing restriction takes away from 
 magistrates residing out of the city of Albany all jurisdiction 
 over offences charged to have been committed within the limits 
 of that city. 
 
 Whenever any person, being a resident of the city of Albany, 
 is aiTested anjrwhere in the county of Albany, for any criminal 
 offence charged to have been committed in the city of Albany, 
 it is the duty of the officer making such arrest, to carry the per- 
 son so arrested before some magistrate residing ih said city, 
 there to be dealt with according to law; and every warrant 
 issued in any such case must be made returnable before some 
 magistrate residing in said city, and not elsewhere. {id.*k^ 3.) 
 
 The act of March 28th, 1849, has been more recently amended 
 by the following act: {Laws of 1855, chap. 256.) 
 
 § 1. Whenever the recorder of said city and the Albany 
 county judge shall both be unable, by reason of absence or any 
 other cause, to hold the saicj Court of Special Sessions as re- 
 quired by the first section of the act hereby amended, it shall 
 be the duty of the clerk of said Court to adjourn such Court to 
 the next following Tuesday; and the recognizances of all per- 
 sons bound to appear before said Court on any clay when such 
 adjournment may be made, shall be continued by a brief entry 
 in the minutes of said Court until the said adjourned day. And 
 in case any farther adjournment or adjournments of the said 
 Court shall be made as herein provided, it shall be the duty 
 of said clerk from time to time, as such adjournment or adjourn- 
 ments may be made, to enter in the minutes of the said Court, 
 in the manner herein directed, a continuance of such recogni- 
 zances until a day when the said recorder or the said county 
 judge shall be able to hold the said Court. 
 
 § 2. Evoiy recognizance that may be continued in said Court, 
 as directed by the first section of this act, shall be and remain in 
 full force and virtue, until the person or persons bound thereby 
 to appear before the said Court of Sjjecial Sessions, shall be 
 tried by said Court, or discharged by due course of law. 
 
 § 3. Whenever a trial by jury shall be demanded in any case 
 returned to and pending in said Court of Special Sessions, it 
 
SPECIAL SESSIONS IN PARTICULAR LOCALITIES. 655 
 
 shall be the duty of said Court to issue to the sheriff of the city 
 and county of Albany, a venire commanding the said sheriff to 
 summon so many good and lawful men as the said Court may 
 direct, who shall be residents of said city of Albany, qualified to 
 serve as jiirors, and not exempt from such service by law, to be 
 and appear before said Court at such time as the said Court may 
 direct, to make a jury for the trial of the complaint and charge 
 returned against the party or parties accused. 
 
 § 4. The sheriff to whom such venire shall be delivered, shall 
 execute, the same fairly and impartially, and shall not summon 
 any person whom he may have reason to suspect to be biased 
 or prejudiced for' or against the defendant or defendants. He 
 shall summon the jurors personally, and shall make a list of the 
 persons summoned which he shall certify, and amiex to the 
 venire, and return with it to the Court. ' 
 
 \ 5. After any venire issued by said Court of Special Sessions 
 shall be returned by the officer executing the same, the Court 
 shall proceed to impannel. a jury of six persons for the trial of 
 the complaint or chai-ge, in the manner directed in and by article 
 first, of title third, of chapter second, of the fourth part of the 
 Eevised Statutes; and the said Court may also issue a new 
 venire in the case provided for in said article. 
 
 § 6. In case any person summoned to appear before the said 
 Court of Special Sessions as a juror or witness, shall fail or 
 neglect to appear accordingly, he may be punished by the said 
 Court in the same manner and to the same extent as Courts of 
 Oyer and Terminer are authorized to punish jurors or witnesses 
 in like cases. 
 
 § 7. In respect to the practice in said Court of Special Ses- 
 sions to the trial of complaints therein, and to the rules of law 
 and evidence applicable to trials and proceedings in said Court, 
 the said Court of Special Sessions shall have all the powers now 
 possessed by Courts of Oyer and Terminer; and all contempts 
 of said Court may be punished by said Court, in the same man- 
 ner and to the same extent as Courts of Oyer and Terminer are 
 authorizd to punish contempts in like cases. 
 
 § 8. When a fine shall be imposed by the said Court of Special 
 Sessions upon any person summoned as a juror or witness for 
 non-attendance, or for any other cause, or upon any person 
 guilty of a contempt of said Court without being accompanied 
 
656 NEW YORK JUSTICE. 
 
 by an order for the immediate commitment of the person fined, 
 until such fine be paid, it shall be the duty of the clerk of said 
 Court to deliver a copy of the order imposing such fine to the 
 district attorney of the county of Albany. 
 
 § 9. It shall thereupon be the duty of said district attorney to 
 take the same proceedings for the collection of any fine or fines 
 imposed by said Court, as are prescribed in article second, title 
 sixth, of chapter eighth, of the third part of the Revised Stat- 
 utes; but such fine or fines when collected, shall be paid over as 
 is dii-ected in section eighth of the act as hereby amended. 
 
 ^ 10. The district attorney of the county of Albany may 
 appoint an assistant who shall hold his office during the pleasure 
 of said district attorney: and the board of supervisors of the 
 city and county of Albany are hereby authorized to pay said 
 assistant such annual sum for his sei'vices as they may deem 
 just, not exceeding the sum of six hundred dollars. 
 
 § 11. All acts and parts of acts iuconsistant with any of the 
 foregoing provisions, are hereby repealed. 
 
 Brooklyn.] The act of March 24th, 1849, {Laws of 1849, 
 chap. 125, § 33, as amended by Laws of 1850, chap. 102, § 16,) 
 provides as follows: "Either of the Justices of the Peace, or 
 the Police Justice, of the city of Brooklyn, shall have power to 
 hold a Court of Special Sessions alone, and §hall have jurisdic- 
 tion also other than that heretofore given them, to try any per- 
 son arrested in said county, who may be brought before them 
 or either of them, charged with an affray, riot, malicious mis- 
 chief, or cruelty to any animal, committed within said county; 
 and in all cases which are triable in such Court of Special Ses- 
 sions, the party accused shall not be required to give hail to 
 appear at any other Court of criminal jurisdiction, unless the 
 city judge of said city, the county judge of said county, or a 
 Justice of the Supreme Court, shall certify that the charge is 
 one that ought to be tried in some other criminal Court; and 
 the said Justices, except the Police Justice, shall have the like 
 jurisdiction in all civil cases as is now exercised by the Justices 
 of the Peace of the towns in this State, in addition to the powers 
 and jurisdiction given them under the said act hereby amen.dedj 
 and no Justice of the Peace, other than the Police Justice and 
 the Justices elfcted in the city gf Brooklyn, shall have or 
 exercise any civil or criminal jurisdictioii in said city. 
 
SPECIAL SESSIONS IN PAKTlCTJLAR LOCALITIES. 657 
 
 ElmitaJ^ The recorder of Elmira shall have jurisdiction 
 exclusive of any Justice of the Peace or other officer in said 
 city, except the mayor and Judges of Courts of Record, to 
 issue all criminal process, and all process other than in civil 
 actions, which a single Justice or two Justices of the Peace in 
 towns are empowered or directed by law to issue; to hear all 
 complaints and conduct all examinations in criminal cases; to 
 hold Courts of Special Sessions with all the power and juris- 
 diction of such Courts as regulated by statute; to try, convict 
 and sentence all persons who may be guilty of any offences 
 which are triable by Courts of Special Sessions, and to commit 
 for trial all persons who shall be guilty of felonies not triable 
 in such Courts. {Laws of 1864, p. 295, cJiap. 139.) 
 
 Monroe.] Courts of Special Sessions' in the county of Mon- 
 roe, in addition to the powers vested in said Courts by the first 
 and second sections of chapter seven hundred and sixty-nine of 
 the Laws of eighteen hundred and fifty-seven, shall have exclu- 
 sive jurisdiction to hear, try and determine charges for crimes 
 and offences, in the cases in this' section mentioned, arising 
 within said county; provided, however, that the accused in 
 such cases shall have the right to demand a trial by jury; and 
 the proceedings and conviction of any such Court may be 
 removed by writ of certiorari to the Court of Sessions of the' 
 county, as is now provided by law: 
 
 1. All cases of petit larceny not charged as a second offence. 
 
 2. Cases of assault and battery not charged to have been 
 committed riotously, or upon any public officer. 
 
 3. Cases of intoxication, arising under the seventeenth sec- 
 tion of an act entitled, "An act to suppress intemperance, and 
 to regulate the sale of intoxicating liquors," passed April six- 
 teenth, eighteen hundred and fifty-seven. [Laws of 18G0, cJtajp. 
 57, p. 67.) 
 
 Oswego.] The recorder of OswegO, in addition to such other 
 
 powers and duties as are now or may be prescribed by law, 
 
 shall be and act as a Police Justice in said city, and as such 
 
 shall have all the powers of Justices of the Peace, and sole and 
 
 exclasive jurisdiction to hear all complaints, and to conduct all 
 
 examinations in criminal cases, and proceedings in the nature 
 
 of criminal cases, and to hold all Courts of Special Sessions in 
 
 said city, and possess all the powers and jurisdiction, and do 
 42 
 
658 NEW YORK JUSTICE. 
 
 — _ J 
 
 and perform all the duties of such Courts. (Laws of 1860, 
 i).,859, chap. 463.) 
 
 Poiighkeepsie] The recorder of the village of Poughkeepsie 
 has exclusive jurisdiction as a Coiirt of Special Sessions, to try- 
 all criminal matters. {Laws of 1849, chap. 86.) 
 
 Rensselaer.\ The act of April 10th, 1855, {Laws q/" 1855, 
 chap. 290,) provides as follows: \ 1. When any person charged 
 with any ofl'ence specified in article first, title third, chapter 
 second of the fourth part of the Eevised Statutes, or with the 
 commission of any of the acts or ofiences enumerated in section 
 first, title fifth, chapter twentieth of part first of the Eevised 
 Statutes, or with being guilty of malicious mischief, "when the 
 damage charged to have been done shall be less than twenty- 
 five dollars, or with vagrancy, or with indecently exposing 
 their person, or by tumultuous or riotous conduct disturbing 
 the public peace, or either fighting or being engaged in any 
 affray, or being intoxicated under such circumstances as to 
 amount to a violation of public decency, shall -be brought be- 
 fore any Justice of the Peace of the county of Eensselaer; 
 such Justice shall, upon conviction of such offiender, have 
 power to punish him by a fine not exceeding fifty dollars, or 
 by imprisonment in the county jail of said county at hard labor 
 for a term not exceeding six months, or by both such fine and 
 imprisonment. 
 
 § 2. All persons who shall abandon their wives or children 
 without adequate means of support, or who shall neglect or 
 refuse to support them according to their ability, shall be 
 deemed disorderly persons within the meaning of the Eevised 
 Statutes, and for the purposes of trial and punishment as pre- 
 scribed in the above section. 
 
 ^ 3. When any person charged with any offence as specified 
 above shall be brought before such Justice, it shall be his duty 
 forthwith to hear, try and determine such complaint or prose- 
 cution according to the provisions of said article first, title 
 third, chapter second of the fourth part of the Eevised Statutes, 
 whether the person charged with such offence requests to be 
 tried or not, and before entering upon such trial such Justice 
 may in his discretion adjourn the hearing or trial thereof from 
 time to time for the purpose of procuring material testimony, 
 either on the part of the people or the accused, for a period 
 
SPECIAL SESSIONS IN PARTICULAR LOCALITIES. 659 
 
 not exceeding twenty days, and such Justice may commit the 
 accused to jail until such adjourned day, or suffer such accused 
 to go at large upon his or her executing to the people of the 
 State of New York, and filing with such Justice, a bond with 
 sureties to be approved by him, in a penalty not exceeding one 
 hundred dollars, conditioned for the personal appearance of 
 said- accused before such Justice on the day to which such 
 hearing or trial shall be adjourned, and that he or she will 
 not depart therefrom without the leave of the Court. 
 
 ^ 4. Every bond so given which shall be forfeited, shall be 
 delivei'ed by said Justice to an overseer of the poor of the town 
 where the proceedings are had, and such overseer shall, and he 
 is hereby authorized to prosecute and collect the same officially 
 for the benefit of the poor of such town. 
 
 § 5. Section seven, of chapter one hundred and eighty-three 
 of session laws of eighteen hundred and forty-seven, is hereby 
 so amended in its application to the county of Rensselaer, that 
 the words " three months" in said section, shall be made to 
 read "two months." 
 
 ^ 6. It shall be the duty of the Court which shall hereafter 
 sentence any person under the provisions of this act to imprison- 
 ment, where the term of such imprisonment is more than two 
 months, to cause such person to be conveyed forthwith, by the 
 officer in whose charge the prisoner shall be, to the penitentiary 
 of the county of Albany; and the officer's fees shall be as fol- 
 lows, to be audited by the board of supervisors of Rensselaer 
 county, and charged to the respective towns according to the 
 statutes: For executing the warrant seventy-five cents, and ten 
 cents per mile for necessary travel in conveying one prisoner. 
 For one additional prisoner, one half the above fees in addition. 
 For each additional prisoner beyond the two as above, one third 
 the fees for carrying the first. • 
 
 LansingburghJ\ The foregoing provisions so far as they affect 
 the village of Lansingburgh, are modified by the following: 
 The police Justices of said village shall have jurisdiction and 
 authority to hear, try and determine, in the manner now pro- 
 vided by law, all complaints and charges for criminal offences 
 i^ the cases enumerated in section first, article first; title third, 
 chapter second, of the fourth part of the Revised Statutes, ex- 
 cept that bail shall not be taken in such cases to the next crjra- 
 
660 NEW YORK JUSTICE. 
 
 iufil court qf the county; but it shall be the duty of th^ Justice 
 liefore w'loni complaint shall be made to proceed to the trial 
 pf the, person charged with the. offence, whether such trial be 
 requested or npt, within twenty-four hours after such person 
 shall be brought before him, unless, upon good cause shown, 
 such police Justice -may deem a longer i time necessary frir pro- 
 (siiring rnaterial testimony, in which case the hearing or trial 
 may be further postponed for a period not exceeding fifteen 
 days. {Laws of 1864, p. 415.) 
 
 Utica,] The act of May 7th, 1844, {chap. 319, % 6,) provides 
 as follows: " All Courts of Special Sessions of the Peace in said 
 9ity, S|hall be held by said recorder and two aldermea of the 
 said, city, who shall be notified to attend said Court by said 
 recorder; and said Court is hereby invested with all the author- 
 ity d,evolved upon Courts of Special Sessions, for the trial, con- 
 viction, and punishment of offences, and in the summoning of 
 jurors for such trial. The said recorder is hereby invested 
 with all the authority possessed by any Justice of the Peace in 
 hearing complaints, issuing process, causing arrests, compelling 
 the attendance of witnesses, taking examinations and recogniz- 
 ances, letting to bail, binding over and committing in criminal 
 9ases. ]^f the recorder shall be absent or unable to attend on 
 the return of any warrant issued pursuant to this act, in such 
 case any judge of the County Courts of said county or the mayor 
 of said city may perform any of the powers vested in said re- 
 corder, for the examination, trial and punishment of the defend- 
 ant; arrested on such warrant. It shall be the duty of the alder- 
 men of said city to attend such Courts of Special Sessions when 
 notified to do so by said recorder, or said judge or mayor in the 
 cases provided for by this section." In view of the statute so 
 frequently referred to, requiring Courts of Special Sessions to 
 be held by a single magistrate, it is presumed that either of the 
 officers alluded to in the above section would be authorized' to 
 hold a Court of Special Sessions. {Laws of 1845, chap. 180, \ 4.) 
 
 Watertown.] The act of April 12; 1855, provides as follows: 
 
 § 1. Section, second, article first, title third, chapter second 
 pf the, fpurth part of the Revised Statutes, in its application to 
 the town of •Watei'town in Jefferson county, is so amended as to 
 read as follows: 
 
 When any person charged with any offence, as is specified in 
 
SPECIAL SESSIONS IN PAETICULAR LOCALITIES. 661 
 
 the first section of said article, or with the commission of any 
 of the acts or offences designated in the first section of title five, 
 chapter twentieth of part first of the Eevised Statutes, or shall 
 be charged with habitual drunkenness or disorderly conduct, 
 shall be brought before any Justice of the Peace of said town of 
 Watertown, such Justice shall, upon conviction of such ofience, 
 have power to punish by fine not exceeding fifty dollars, or by 
 imprisonment in the county jail of said county not exceeding six 
 months, or to hard labor on ,the highways in the village of 
 Watertown with ball and chain, under the charge of the street 
 commissioner of said village, or some other proper person for 
 that purpose appointed by the trustees of said village, and to be 
 imprisoned in the county jail of said county, or a place designa- 
 ted by the said trustees of said village, when not at labor on the 
 highways as aforesaid, or by both such fine or imprisonment or 
 labor. 
 
 § 2. When any person charged with any offence as specified 
 above, shall be brought before such Justice, it shall be his duty 
 forthwith to hear, try and determine such complaint orprose- 
 ciition, according to the provisions of said article first, title third, 
 chapter second, of the fourth part of the Eevised Statutes, as 
 amended by act o'f May 20th, 1845, whether the person charged 
 with such offence requests to be tried or not; and, before enter- 
 ing upon such trial, such Justice may, in his discretion, adjourn 
 the hearing or trial thereof from time to time, for the purpose 
 of procuring material testimony, either on the part of the peo- 
 ple or the accused, for a period not exceeding ninety days; and 
 such Justice may commit the accused to jail until such day, or 
 suffer such accused to go at large, upon his or her executing to 
 the people of the State of New York, and filing with said Jus- 
 tice, a bond to be approved by him, in a penalty of not exceed- 
 ing five hundred dollars, conditioned for the personal appear- 
 ance of said accused before said Justice on the day to which 
 such hearing, or trial shall be adjourned, and that he or she will 
 not depart therefrom without the leave of the Court. 
 
 § 3, Every bond so given, which shall be forfeited, shall be 
 returned to the next Court held in and for the said county of 
 Jefferson, exercising criminal jurisdiction, and shall be prose- 
 cuted, collected and applied as if the same had been originally 
 made returnable to said Court. 
 
662 NEW YORK JUSTICE. 
 
 WatervIteL] The act of April 2d, 1850, {chap, 139, §§ 1 to 
 3,) provides as follows: " Section second, article first, title third, 
 chapter second, of the fourth part of the Revised Statutes, (2 
 B. S. 711, § 2; ante, p. 635,) in its application to the town of 
 Watervliet, in Albany county, is so amended as to read as fol- 
 lows: 
 
 When any person charged with any offence, as is specified in 
 the first section of said article, (2 H. S. 711, § 1; ante, p. 630,) 
 or with the commission of any (jf the acts or offences designated 
 in the first section of title five, chapter twenty of part first of 
 the Revised Statutes, (1 R. 8. 638, § 1; post, part III. cliap. 
 XI,) or shall be charged with habitual drunkeimess and disor- 
 derly conduct, shall be brought before any Justice of the Peace 
 of said town of Watervliet, such Justice shall, upon conviction 
 of such offender, have power to punish by fine not exceeding 
 fifty dollars, or by imprisonment in the penitentiary of said 
 county not exceeding six months, or by both such fine or impris- 
 onment. 
 
 When any person charged with any offence, as specified above, 
 shall be brought before such Justice, it shall be his duty forth- 
 with to hear, try and determine such complaint or prosecution 
 according to the provisions of said article first, title third, chap- 
 ter second of the fourth part of the Revised Statutes, (2 R. 8. 
 711, \ 1; ante, p. 630,) whether the person charged with such 
 offence requests to be tried or not; and before entering upon 
 such trial, such Justice may, in his discretion, adjourn the hear- 
 ing or trial thereof from time to time, for the purpose of pro- 
 curing material testimony, either on the part of the people or 
 the accused, for a period not exceeding ninety days; and such 
 Justice may commit the accused to jail until such day, or suffer 
 such accused to go at large upon his "or her executing to the 
 people of the State of New York, and filing with said Justice, 
 a bond, to^ be approved by him, in the penalty of not exceeding 
 three hundred dollars, conditioned for the personal appearance 
 of said accused before such Justice on the day to which the 
 hearing or trial shall be adjourned, and that he will not depart 
 therefrom without leave of the Court. 
 
 Every bond so given, which shall be forfeited, shall be re- 
 turned to the next Court held in and for, the said county of 
 Albany, exercising criminal jurisdiction, and shall be prosecuted, 
 
COMPROMISE OF OFPDNCES. 663 
 
 _ . — — ^ 
 
 collected aud applied as if the same had been originally made 
 retm-nable to said Court." 
 
 Instead of the fees formerly allowed to them by law, each of 
 the Justices of the Peace of the town of Watervliet receives an 
 annual salary of $350. {Laws of 1854, chap. 118.) 
 
 WtUtamsburff/i.] The Police Justice of this city is authorized 
 to try all criminal cases as a Court of Special Sessions, that might 
 formerly be tried at a Court of Special Sessions in the town of 
 Williamsbui'gh. {Laws of 1851, chajp. 21.) , \ 
 
 CHAPTER X. 
 
 OF THE COMPEOMISE OF OFFENCES^ 
 
 The statute provides, that where any person shall be bound by 
 recognizance to appear, or shall be committed to prison, on any 
 charge for an assault and battery, or other misdemeanor, for 
 which the injured party shall have^ a remedy by civil action, 
 except when such assault and battery or misdemeanor is charged 
 to have been committed by or upon any officer or minister of 
 Justice whilst in the execution of the duties of his office, or 
 riotously, or with an intent to commit a felony, if the injured 
 party appears before' the magistrate by whom the recognizance 
 was taken or the commitment made, or before any judge of the 
 County Courts, and acknowledges in writing that he has received 
 satisfaction for such injury and damages, the magistrate or judge 
 may, in his discretion, on payment of the costs which have ac- 
 crued, by an order under his hand, discharge such recognizance, 
 or supersede the commitment of the offender; and may, in like 
 manner, V discharge every recogni|;ance wliich may have been 
 taken for the appearance of any witnesses in such case. Every 
 such order discharging any recognizance is to be filed in the 
 office of the county clerk; and the order superseding the com- 
 mitment of the offender, is to be delivered to the keeper of the 
 jail where he is confined, who, upon receiving it, must imme- 
 diately, discharge him. (2 B. iS. 730, §§ 66, 67.) There can 
 
664 NEW YORK JUSTICE, 
 
 be no compromise, however, after a conviotion. {The People 
 vs. Bishop, 5 Wend. 111.) 
 
 The compounding or compromising of offences which are 
 punishable with death, or by imprisonment in the State prison 
 for any term, is expressly forbidden by statute. (2 R. 8. 689, 
 \\ 17, 18; Ante, p. 612.) 
 
 \ 138. Acknowledgment of 8 aiisf action. 
 
 County, ss: 
 I hereby atiknowledge that I have received from "William 
 •Vantine, five dollars, in full satisfaction and compensation for 
 all injury and damages done to me by the said William, on the 
 day of , 1853, by assaulting and beating me, 
 
 whereof I complained to J H B, Esq., a Justice of the Peace of 
 the said county, on the day of , 1853, and I 
 
 pray that the said William Vantine may be released from his 
 imprisonment, and that no further proceedings may be had 
 against him. Daniel Abbott. 
 
 § 139. Order 8uperseding the Commitment of the Prisoner. 
 
 County, ss: 
 To the keeper of the common jail of the said county: 
 Daniel Abbott, for assaulting and beating whom, "William 
 "Vantine was committed by me to your custody on the 
 day of , 1853, having this day acknowledged in writing 
 
 that he has received satisfaction for the injury and damage he 
 sustained by reason of such assault and beating, you are hereby 
 required, on the receipt of this order, to discharge the said 
 "William "Vantine from your custody in the said jail, unless hte 
 be therein detained by you for some other cause. 
 
 "Witness my hand and seal this day of , 1853. 
 
 J H B, [l. s.] Justice of the Peace. 
 
 ^ 140. Order discharging the Recognizances of the Prisoner and 
 
 the Witnesses. 
 County, ss: 
 Daniel Abbott, the complainant within named, having ap- 
 peared before me, the Justice by whom this recognizance was 
 taken, and acknowledged in writing that he has received satis- 
 faction for the injury and damage therein complained of, I 
 hereby, order this recognizance to be discharged. 
 
 "Witness niy hand^ this day of , 1853. 
 
 J H B, Justice of the Peace. 
 
 This discharge is to be endorsed upon each of the several 
 reCo^zoQcea, 
 
PROCEEDINGS TO REVERSE JUDGMENTS. 665 
 
 CHAPTER XI. 
 
 OF PKOCEEDINGS TO REVEESE JUDGMENTS IN 
 CRIMINAL CASES. 
 
 The Courts of Sessions of the several counties in this State, 
 in addition to the general powers now possessed, shall have the 
 following {)owers: 
 
 1. To review in the first instance every order, decision, con- 
 viction, senlence, or judgment of any Court of Special Sessions 
 or Police Court within their respective counties, and upon such 
 hearing affirm, reverse, or modify the same as to the Court 
 shall seem just. 
 
 2. To grant new trials upon the merits, or for irregularity, 
 or upon the ground of newly discovered evidence, in all cases 
 tried before them. {Laws of 1857, chap. 769, ^ 31.) 
 
 A writ of certiorari to remove into the Court of Sessions of 
 the county, a conviction had before any Court of Special Ses- 
 sions or Police Court, may be allowed on the application of the 
 party convicted, by any Justice of the Supreme Court, or by 
 any officer authorized to perfonn the duties of such Justice in 
 vacation. {Laws of 1859, chap. 339, § 2.) 
 
 The Courts of Sessions of the several counties are vested 
 with the same powers within their respective counties^ in rela- 
 tion to such certiorari to Courts of Special Sessions and Police 
 Courts, and the proceedings thereon, and all matters growing 
 out thereof, or subsequent thereto, or connected therewith, as 
 are possessed by the Supreme Court, under article fourth, of 
 title three, of chapter two, of the fourth part of the Revised 
 Statutes. All the provisions of said article fourth, except as 
 herein otherwise provided, are made applicable to such cer- 
 tiorari hereby authorized, and to the allowance thereof, and to 
 the proceedings thereon, and to all matters growing out thereof, 
 or subsequent thereto, or connected therewith, including recog- 
 nizances, judgment and sentence; but the writ, affidavit and 
 return, in cases under this act, shall be filed in the office of the 
 county clerk, and the notice required by said article fourth to 
 
666 NEW YORK JUSTICE, 
 
 be served on the attorney-general, shall, in such cases, be served on 
 the district attorney of the county. {Laws q/" 1859, diap. 339, § 3) 
 
 The Courts of Sessions of the several counties in this State 
 shall have power to' grant new trials upon the merits, or for 
 irregularity, or on the ground of newly discovered evidence, 
 in all cases tried before them. (id. \ 4.) * 
 
 The following are the. provisions of article four, title three, 
 chapter two, part four of the Revised Statutes, (2 R. S. 902, 4cth 
 ed. § 47 et seq.,) as modified by the foregoing statute: 
 
 § 2. The party desiring such certiorari, or s6me one in his 
 behalfj shall apply for the same within ten days after suclT con- 
 viction shall have been had, and shall make an affidavit, speci- 
 fying the supposed errors in the proceedings' or* judgment 
 complained of. 
 
 § 3. If the officer to whom application for such certiorari 
 shall be made, shall be satisfied that any error has been com- 
 mitted in the proceedings or the judgment, he shall endorse 
 upon the writ his allowance thereof, and shall certify the affi- 
 davit upon which the certiorari was allowed; but where the 
 defendant shall h^e been tried by a jury, no certiorari shall 
 be allowed upon the ground that the verdict of such jury was 
 against evidence. 
 
 § 4. The said writ and original affidavit shall be delivered to 
 the magistrate before whom the conviction was had, vrithin ten 
 days after such allowance. 
 
 § 5. The magistrate to whom the certiorari shall be directed, 
 shall make a special return to all the matters specified in the 
 affidavit accompanying the writ; and shall cause such writ, 
 affidavit and return, to be filed in the office of the county clerk 
 within twenty days after the' service of the said writ. 
 
 § 6. The Court of Sessions shall have the like power to com- 
 pel the making of such return, and require the same to be 
 amended and perfected, as [the Supreme Court] in cases of 
 mandamus. 
 
 § 7. A certified copy of every certiorari to remove, into the 
 Court of Sessions a conviction had before a Court of Special 
 Sessions, together with a certified copy of the affidavit upon 
 which the writ is allowed, and of the return thereto, shall be 
 served by the party prosecuting tl}e writ upon the district 
 attorney of the county in whicht'the''conviotion to be reviewed 
 
PROCEEDINGS TO REVERSE JUDGMENTS. 667 
 
 ■was had, with at least four days notice of the argument thereof, 
 and it shall be the duty of such district attorney ts attend to 
 the argument of the same, and perform such duties in relation 
 thereto as have heretofore been performed by the attorney- 
 general; for, which service a reasonable compensation, to be 
 (tsrtified by one of the Justices of the Supreme Court, shall be 
 audited and allowed by the board of supervisors, and paid out 
 of the treasury of the county. 
 
 § 8. It shall not be necessary for the party convicted to 
 appear before the Court of Sessions upon the prosecution of 
 such certiorari; nor shall any assigiunent of errors or joinder 
 in error be necessary, but the Court of Sessions shall proceed 
 to hear the parties and give judgment on the return to such 
 writ. 
 
 § 9. If at the time of his conviction, any defendant shall notify 
 the magistrate before whom the same shall have been had, that 
 he intends to remove such conviction by writ of certiorari, and 
 shall offer to become bound in a recognizance with satisfactory 
 sureties, to appear at the next Court of Sessions to be held in 
 the same county, and to abide the judgment or order of that 
 Court in the premises, it shall be the duty of such magistrate 
 to take such recognizance, and thereupon to suspend the exe- 
 cution of any sentence upon such conviction; but such sentence 
 shall be pronounced and entered in the minutes of the pro- 
 ceedings. 
 
 § 10. If the party convicted shall have been committed to 
 prison in pursuance of his sentence, upon becoming bound with 
 a condition as provided in the last section, with such sureties as 
 shall be approved by the officer allowing the writ of certioi-ari, 
 he shall be entitled to be discharged from such imprisonment; 
 and the certificate of such officer, stating the facts and ordering 
 the jailer to discharge such prisoner, shall be a sufficient war- 
 rant for his discharge. 
 
 § 11. The magistrate or officer by whom any recognizance 
 under either of the two last sections shall be taken, shall imme- 
 diately cause the same to be filed with the clerk of the county. 
 , § 12. The Court of Sessions in which the party so convicted 
 and recognized, shall be bound to appear, shall have power to 
 continue such recognizance, or to require a new recognizance 
 with further or other sureties, until the decision of the Court 
 
668 SSW YORK JUSTIGE; 
 
 shall be had in the premises; and in default of compliance with 
 any such requisition, the said Court of Sessions may commit the 
 party so convicted to close custody. 
 
 § 13. If the conviction be reversed, and the defendant be in 
 prison by virtue thereof, the Court of Sessions shall award a 
 writ of supersedeas for his discharge. If the defendant shaH 
 have been let to bail, as above proVidedj the judgment of 
 the Court of Sessions, whether the conviction be reversed or 
 affirmed, shall be by that Court carried into effect. 
 
 § 14. Upon such judgment being rendered, the Court of Ses- 
 sions, if the conviction be reversed, shall discharge the defend- 
 ant; if the conviction be affirmed, and the defendant shall have 
 been sentenced by the Court of Special Sessions, such Court of 
 Sessions shall order that such sentence be executed; and if the 
 defendant shall have been let ont of prisOn as herein provided, 
 lie shall be remanded to such prison for the remainder of the 
 term for which he was sentenced. 
 
 § 15. If the conviction be affirmed, and the defendant shall 
 not have been sentenced, the Conrt of Sessions shall proceed to 
 sentence the defendant iipon such conviction, in the same man- 
 ner and with the like effect, as if such convicti'OH had been had 
 in such Court of Sessions. 
 
 ^ 16. If it shall appear to the Court of Sessions that the per- 
 son prosecuting such certiorari has um-easonably delayed to 
 notice, or bring on for argument the return to such writ, such- 
 Court may enter a rule to quash such certiorari, and shall pro- 
 ceed thereon in the same manner as if the judgment of the Court 
 of Special Sessions had been affirmed by such Court of Sessions. 
 (2 B. S. 718.) 
 
 § 141. Affidavit to obtain a Certiorari on Appeal from Special 
 
 Sessions. 
 
 In the Court of Special Sessions, County of Monroe: 
 
 The People of the ^ ' 
 
 State of New York \ t, r at> t^- i^xi-n 
 
 > Ueiore A 13, a Justice of the Peace. 
 
 John Doe.' J 
 County of Monroe, ss: 
 
 John Doe, the defendant above named, being duly sworn, 
 says, that heretofore, and on or about the day of, at the 
 
PROCEEDINGS TO EEVERSU JUDGMENTS. 669 
 
 town of Grreece, in said county, he was arrested and brought be- 
 fore the said A B, Esq.; a Justice of the Peace of said county, 
 under and by virtue of a warrant issued by the said Justice for 
 the arrest of this deponent, upon the charge of malicious mis- 
 chief, [or, set forth the true charge",] and that thereupon an ex- 
 amination of deponent, on said charge, and such other proceed- 
 ings were had upon the said charge against this deponent, by 
 and before said Justice of the Peace; that this deponent, in 
 pursuance of the statute in such case made and provided, (Re- 
 manded a trial before the Special Sessions, and that, in pursu- 
 ance of such demand, and of the statute in such case made and 
 provided, a Court of Special Sessions was held by the said A 
 B, in the town of Greece aforesaid, on the day of , and that 
 
 thereupon, on the said last mentioned day, this deponent did 
 duly, and m' person, appear in the said Court to answer and 
 stand trial, by and before the said Court, upon the said charge 
 pending against him in the said Court. That this deponent was, 
 in manner required by law, arraigned by the said Court upon 
 the said charge, and required to plead to the said charge as con- 
 tained or stated in the said warrant, [oi; charge,] and plead not 
 guilty thereto; that thereupon, such proceedings were had in 
 said Court that the following testimony was offered on behalf 
 of the said people, and objected to on the part of this deponent, 
 as follows: [Here state the questions, the objections, tlie ruling 
 of the Court and the exceptions of the defendant, and the finding 
 of the Court.^ That the said Court upon the finding of the ver- 
 dict, [or, judgment,] did thereupon adjudge, determine, and 
 sentence that this deponent should be confined in the Monroe 
 county jail for the period of thirty days. 
 
 And deponent further says, that he did thereupon, on the day 
 last aforesaid, give notice to said Court that he intended to re- 
 move such conviction, by writ of certiorari to the Court of Ses- 
 sions of the county of Monroe: and thereupon made and entered 
 into a recognizance before said Court, as required by law, con- 
 ditioned for his appearance at the next Court of Sessions to be 
 held in and for the county of Monroe, to abide the determina- 
 tion of the said Court on said certiorari. 
 
 Deponent further says, that he is advised and believes and 
 alleges that the rulings of said Court were erroneous in [here 
 state the erroneous and improper rulings or other erroi-s.^ And 
 deponent claims that said conviction was irregular and illegal, 
 by reason of each and all the errors in the proceedings and on 
 the trial hereinbefore mentioned. Deponent therefore desires 
 and applies for a writ of certiorari, to be issued to said Court 
 of Special' Sessions, to remove the said conviction of this depq- 
 
670 NEW YORK JUSTICE. 
 
 nent to the Court of Sessions of Monroe county, pursuant to the 
 statute in such case made and provided. 
 
 Sworn before me, &c. John Doe. 
 
 § 142. Endorsement on the Foregoing Affidavit. 
 
 I hereby certify that the within aflidavit was presented to me 
 this day of , upon an application for a writ of 
 
 certiorari, to remove the conviction of the defendant within 
 named from the Special- Sessions to the Court of Sessions for 
 the county of Monroe, and that upon said affidavit I have this 
 day allowed said writ of certiorari. 
 
 L P, Justice Supreme Court. 
 
 § 143. Writ of Certiorari to Remove Conviction to the County 
 
 Sessions. 
 Monroe county, ss: 
 
 The People of the State of New York, to A B, Esq., one of 
 the Justices of the Peace of the county of Monroe, greeting: 
 
 Whereas, in a certain cause lately pending in our Court of 
 Special Sessions, held before you, wherein the People of the 
 State of New York are plaintiffs and John Doe is a defendant, 
 judgment of conviction has been given by you in our said 
 Court, against the said John Doe, as it is said, and we being 
 willing, for certain causes, to be certified of the proceedings 
 therein, do therefore command you, that the record of the said 
 proceedings and judgment, with the complaint, process, plead- 
 ings, and all other things touching the same, in as full and 
 ample a manner as the same remain before you, distinctly and 
 plainly you send to our Court of Sessions, of om- said county 
 of Monroe, together with this writ, and the affidavit delivered 
 to you therewith, that our said Court of Sessions may further 
 cause to be done therein, what of right ought to be done. 
 
 Witness, J K, Esq., Justice of our Supreme Court, the 
 day of , in the year of our Lord one thousand eight hun- 
 
 dred and sixty-five. G K W, Clerk, [l. s.] 
 
 C D, Attorney. 
 
 § 144. Endorsement on the Writ. ' 
 
 The within writ of certiorari is hereby allowed by me, pur- 
 suant to statute, this 22d day of June, 1865. 
 
 G B, Justice Supreme Court, [or, County Judge.] 
 
 [For form of return to the foregoing writ, see 5 Park Cr. 
 402.] 
 
OF SURETY OF THE pIaCE. 671 
 
 § 145. Recognizance on Appeal to County Sessions. 
 
 State of New York, ) ^^^ 
 County of Monroe, \ 
 
 We, John Doe, L M, and N P, of the town of Greece, in said 
 county, acknowledge ourselves to be severally indebted to the 
 People of the State of New York; that is to say: the said John 
 Doe in the sum of one hundred dollars; the said L M in the 
 sum of one hundred dollars, and the said N P in the sum of one 
 hundred dollars, to be well and truly paid if default shall be 
 made in the condition following: 
 
 Whereas, at a Court of Special Sessions, held this day, before 
 A B, Justice of the Peace, at the said toWn of Greece, in said 
 county, for the trial of the said John Doe, for \whatever the con- 
 viction may 6e,] upon the complaint of N S, the said John Doe 
 was convicted of said offence by said Court ; 
 
 Now, the condition of this recognizance is such that, if the 
 said John Doe shall appear at the next Court of Sessions of the 
 Peace, to be held in and for said county of Monroe, and shall 
 abide the order and judgment of that Court in the premises, then 
 this recognizance to be void; otherwise, to remain in full for9e 
 and virtue. • John Doe, 
 
 Taken, subscribed, and acknowledged ) L M, 
 
 the day of , 1865, before me, j N P. 
 
 A B, Justice. 
 
 CHAPTER XII. * 
 
 OF SUKETY OF TH]^ PEACE. 
 
 Undee the title, " Of proceedings to prevent the commission 
 of crimes," the statute provides, that Justices of the Peace, and 
 Police Justices, shall have power to cause to be kept all laws 
 made for the preservation of the public peace, and, in the execu- 
 tion of that power, to require persons to give security to keep 
 the peace, in the manner therein prescribed. 
 
 The po^er thus conferred has evoked from Mr. Justice Black- 
 stone a glowing encomium, and he esteems it an honor to the 
 
672 NEW TOBK JUSTICE. 
 
 English laws that they furnish a preventive remedy similar to 
 that just quoted from our own statute. In his language, ^^Pre- 
 ventive justice is, upon every principle of reason, of humanity, 
 and of sound policy, preferable in all respects to punishing 
 justice." {Blacks.' Comm. 252.) 
 
 We will now proceed to consider how this, " preventive jus- 
 tice " or security is to be obtained. 
 
 Whenever a complaint is made in writing and upon oath, to a 
 Justice of a Justice's Court, a Police Justice, or a Justice of the^ 
 Peace, that any person has threatened to commit any offence 
 against the person or property of another, it is their duty to 
 examine the complainant, and any witnesses he may produce, 
 on oath, and to reduce the examination to writing, and cause it 
 to be subscribed by the parties examined. (2 R. 8. 704, § 2.) 
 
 Under this section of the statute, it was decided, that where 
 the examination of the complainant, reduced to writing, and 
 subscribed and sworn to by him, gontained matter sufficient to 
 authorize the issuing of a warrant of arrest, the Justice who 
 issued it has jurisdiction, although no con),plaint in writing, 
 separate and distinct from the examination, was made. [Brad- 
 street vs. Ferguson, 17 Wend. 181.) This decision, however, 
 w%s reversed by the Court for the Correction of Errors, to which 
 Court the case was carried, and it was there held, that on au 
 application to a magistrate for sureties of the peace, there must 
 be a formal complaint, in writing and upon oath, besides the 
 examination in writing required by the statute, to justify the 
 magistrate in issuing a warrant against the party complained ofj 
 and that it was iiot enough that the complaint was embraced in 
 the examination. [S. C. 23 id. 638.) If, however, the warrant 
 of arrest recites that there was a complaint in writing and upon 
 oath, it is prima facie evidence that such proceedings were had, 
 and will protect the magistrate in an action against him, until it 
 is affi^-matively shown on the other side that there was not such 
 a complaint, {id.) 
 
 All persons, being of sane memory, whether citizens or aliens, 
 have a right to make a complaint, and to demand sureties of the 
 peace. A wife may demand it against her husband when he 
 threatens to beat her; and a husband may have it against his 
 wife. And,, on the other hand, there can be no doubt that any 
 person whatever, being of sane memory, may be required to 
 
STTRBTY OFjTHE PEACE. 673 
 
 give security to keep the peace, whether he be of full age or 
 under age, whether he be a magistrate or a private person. But, 
 infants under age, and married women, must, as we have already- 
 seen, (Ante, p. 626,) find ajjcurity by their friends; for they are 
 incapable of binding themselves. (4 Blacks. Oomrn. 250, 251j 
 Davis' Justice, 400.) 
 
 The first step, then, is to make a complaint in writing, upon 
 oath, before the Justice, stating the threatened ofienpe against 
 the person or property, which complaint may be in these words: 
 
 § 146. Complaint to obtain Surety pf (ae Peace. 
 
 County, ss: 
 
 A B, of said county, being duly sworn, says, that on the 
 day of , 18 , one D A, of the town of , in said 
 
 county, did threaten to beat aijd wound [or, kill, as the case 
 may 6e,] him, the said A B; and that he hath just cause to fear 
 that the said D A wil^ beat and wound [or, kill, as the case may, 
 be,] hini, the said A B;* wherefore this deponent prays that the 
 said offender may be bound by recognizance to answer the said 
 oflence at thje next Court of Sessions to be held in the said 
 county, and in the meanwhile to keep the peace. 
 
 Sworn, &c., [as in § 57.] A B. 
 
 If it appears from the examination, tljat there is just re^on tq 
 fear the commission by the person conipl^in^.d pf, of any such 
 offence as that sworn tp by the complainant, it is the dufy of jthe 
 Justice to issue a warrant under his hand, with or without seal, 
 reciting the complaint, and commanding the officer to whom it 
 is directed, forthwith to apprehend the person so complained 
 of, and bring him before the Justice. (2 B. 8. 704^ § 3.) 
 
 ^;|,s: 
 
 § 1,47. Peace JViavrarit. 
 
 Town of 
 
 County, 
 To any Constable of the said County, greeting: 
 
 Whereas, A B hath thisday made complaint, upon oath, before 
 me, G H, one of the Justices pf the Peace of the said town, that 
 oti; the day of , 18 , one D A, of, &c., [as in § 146 
 
 to the,* and then add:] and the said A B hath thereupon prayed 
 surety of the peace: Therefore, the people of the State of New 
 York command you forthwith to apprehend the said D A, and 
 43 • 
 
674 NEW ¥OKK JUSTICE. 
 
 bring him before me, at my office in said town of to be 
 
 dealt with according to law. 
 Witness my hand, this day of , 18 . 
 
 G,H, Justice of the Peace. 
 
 It is not necessary that the warrant should contain a formal 
 adjudication that there is reason to fear the commission of the 
 offence charged. (Bradstreet vs. Ferguson 17 Wend'l?i\.) 
 
 When the defendant is brought before the Justice, the com- 
 plaint and examination should be read over to4iim, and he should 
 then be asked what he has to say in his defencCi or what he can 
 allege against the iinding of sureties. {Barb. Orim. Law, 510.) 
 After he has been so interrogated, the Justice may require him, 
 if he think the case demands it, to enter into a recognizance in 
 such sum, not exceeding one thousand dollars, as he may deem 
 proper, with one or more sufficient sureties, to appear at the 
 next Court of Sessions to be held in the county where the com- 
 plaint is made, and not to depart the same without leave, and, 
 in the meanwhile, to keep the peace towards the people of this 
 State, and particularly towards the person requiring the security. 
 (2 R. 8. 704, § 4.) 
 
 ^ 
 
 148. Recognizance to Keep the Peace. 
 State of New York. 
 
 County, ' ^®- 
 
 We, G D, E F, and D A, of , in said county, do here- 
 
 by acknowledge ourselves to be severally indebted to the people 
 of the State of' New York; that is to say, the said D A, in the 
 sum of dollars, the said C D, in the sum of 
 
 dollars, and the said E F, in the sum of dollars, to be 
 
 well and\ truly paid if default shall be made in the condition 
 following; 
 
 The condition of this recognizance is such, that if the said D 
 A, shall personally appear at the next Court of Sessions to be 
 held in and for the said county, and shall not depart the Court 
 without leave, and, in the meanwhile, shall keep the peace to- 
 wards the people of this State, and particularly towai-ds A B, 
 then this recognizance to be void, otherwise of force. 
 
 Taken, subscribed, and acknowledged, "j CD. [l. s. 
 
 this day of ,1853, before [ E F. l. s. 
 
 me, G H, J DA. "l. s. 
 
 Justice of the Peace. 
 
SURETY OF THE PEACE. 675 
 
 If the recognizance is given, the party complained of must be 
 discharged. If he refuses to find the security, it is the duty of 
 the Justice to commit him to prison until he does find it, and to 
 specify in the warrant the cause of commitment, and the sum in 
 which security is required. (2 B. 8. 704, § 5.) It is not necessary, 
 however, to state in the warrant of commitment the crime for the 
 prevention of which the application for security of the peage 
 was made; it is enough to state thal^the party is committed for 
 refusing to give sureties. {^Braflstreet vs. Ferguson, 23 Wend. 
 638.) 
 
 § 149. Commitment for not Finding Sureties. 
 
 County, ss: 
 To any Constable of the said County, greeting: 
 
 Whereas, A B, this day made complaint to me m writing, on 
 path, that D A, on the day of instant, [or, last 
 
 past,^ threatened to, &c., \as in the complaint;^ And whereas, 
 it appeared to me, upon the examination of the said complain- 
 aint, ^nd of E F and O P, witnesses, duly made on oath, re- 
 duced to writing, and subscribed by thein, that there was just 
 reason to fear the commission of the said offence by the said D 
 A; and he, having been brought before me, on my warrant, 
 was required to enter into a recognizance in the sum of 
 dollars, with sufficient surety, to appear at the ne^xt Court of 
 Sessions to be held in said county, and not to depart the same 
 without leave, and in the meantime to keep the peace towards 
 the people of this State, and particularly towards the said com- 
 plainant; and the said D A, having refused, [or, neglected,] to 
 find such security, you are therefore commanded, in the name 
 of the people of the State of A^ew York, forthwith to convey him 
 to the common jail of the said county, and to deliver him to the 
 keeper thereof, who is hereby required to receive the said D A, 
 into his custody, and him safely keep in the said jail, until he 
 shall find such security, or be discharged by due course of law. 
 
 Witness, &c., \as in § 147.] 
 
 The warrant of commitment will be valid without a seal. 
 {Oano vs. Hall, 5 Park Or. 651.) 
 
 Any person committed for not finding sureties as thus pro- 
 vided, may be discharged by any two Justices of the Peace of 
 the county, upon giving such security as was originally required 
 of him:. (2 i?. ^. 704, § 6.) 
 
676 NEW TOB.K JUSTICE. 
 
 § 150. Warrant to Discharge Prisoner on Finding Sureties. 
 County, ss: 
 G H, and S T, Esqrs., two of the Justices of the Peace of the 
 said county, to the keeper of the ccftimon jail of the said 
 county, greeting: 
 These ai'e to command you forthwith to discharge out of your 
 custody D A, if detained by you in such common jail for no 
 other cause than what is specified in his warrant of commitment, 
 made by the said G H, dated the day of , 18 , 
 
 for not finding sureties of the peace he having since his said 
 commitment found such sureties before us. 
 
 Given under our hands and seals, this day of , 1853. 
 
 G H, Justice. [l. s.l 
 ' S T, Justice. [l. s.] 
 
 The recognizance taken by the Justice must be transmitted 
 to the next Court of Sessions of the county. (2 i?. 8. 704, \ 7.) 
 
 Every person who, in the presence of a Justice of the Peace 
 or Police Justice, makes any affra,y, or threatens to kill or beat 
 another, or to commit any offence against his person or prop- 
 erty; and every person who, in the presence of any such magis- 
 trate, contends with hot and angry words, may be ordered by 
 such magistrate, without any other proof, to give security as 
 above specified; and, in case of his refusal to do so, may be 
 committed in the manner above described. (2 It. 8. 705, \ 8.) 
 
 The statute further provides, that every court of criminal 
 jurisdiction, before which any person shall be convicted of any 
 criminal offence not punishable with death or imprisonment in 
 the State Prison, shall have power, in addition to such sentence 
 as may be prescribed or authorized by law, to require such per- 
 son to give security to keep th^ peace, or to be of good behav- 
 ior, or both, for any term not exceeding two yeai's, or to stand 
 committed until such security be given. But this provision 
 does not extend to convictions for writing or publishing any 
 libel; nor can any such security be required by any Court, upon 
 any complaint, prosecution or conviction, for any such writing 
 or publishing, (id. 737, § 1.) 
 
 No security to keep the peace, or to be of good behavior, can 
 be required, nor can any person be committed to prison, for not 
 giving the same, in any cases except such as are authorized or 
 prescribed by statute. («d. 705, § 14.) 
 
OF FEES IN CRIMINAL CASES. 677 
 
 CHAPTER XIII. 
 
 OF FEES IN CRIMINAL CASES. 
 
 All fees and accounts of magistrates and other officers for 
 criniinal proceedings, including cases of vagrancy, are to be 
 paid by the several towns or cities wherein the offence- was 
 committed. All accounts rendered for such proceedings must 
 state where the offence was committed, and the board of super- 
 visors must assess such fees and accounts upon the several towns 
 or cities designated by the accounts. But, when any person is 
 "bound over to thfe Oyer and Terminer, or Court of Sessions, or 
 commuted to jail to await a trial in either of said Courts, the 
 costs of the proceedings had before the single magistrate are 
 chargeable upon the towns or cities aforesaid, and the costs of 
 the proceedings had after the person has been so bound over or 
 committed, are chargeable to the county. {Laws of 1847, chap. 
 180, § 26, as amended by Laws of 1847, chap. 455.) 
 
 No account can be audited by any board of town auditors, or 
 supervisors, or superintendents of the poor, for any services or 
 disbursements, unless the account is made out in items, and ac- 
 companied with an affidavit, (which is to be attached and filed 
 with such account,) made by the person presenting or claiming 
 the same, that the items of such account are correct, and that 
 the disbursements and services charged therein have been in 
 fact made or rendered, or are necessary to be made or rendered 
 at that session of the board, and stating that no part thereof has 
 been satisfied. {Laws of 1845, chap. 180, § 24, as amended by 
 Laws of 1847, chap. 490.) 
 
 ^151. Affidavit to accompany Account- 
 
 County, ss: 
 J H B, of , in said county, being duly sworn, 
 
 says, that he is a Justice of the Peace in and for said county, 
 that the items of the account hereto annexed are correct, and 
 that the disbursements and services charged in the said account 
 liave in fact been made and rendered by him, or are necessary 
 'to be made and rendered by him at the jxresent session of -the 
 
678 NEW* YORK JUSTICE. 
 
 Board of of said county, and that no part of the said 
 
 account has been paid or satisfied. 
 
 J H B. 
 Sworn, &c., [as in § 57.] 
 
 For the following services in criminal cases, performed in the 
 cases authorized' by law, by the officers hereinafter named, the 
 following fees are allowed: 
 
 I^ees of Justices of the Peace. 
 
 The several Justices of the Peace in the State, hereafter shall 
 be allowed and receive the following fees for services herein- 
 after mentioned,, in criminal cases: 
 
 For administering an oath, five cents: 
 
 For a warrant, (but no person shall be obliged to issue a war- 
 rant on any complaint for assault and battery, unless the person 
 making such complaint and requiring such warrant shall pay the 
 fee therefor,) twenty-five cents; 
 
 For a bond or recognizance, twenty-five cents; 
 , For a subpoena, including all the names inserted therein, 
 twenty-five cents; 
 
 For a commitment for want of bail, twenty-five cents; 
 
 For an examination of the accused, where such examination 
 is required by law, one dollar; 
 
 For every necessary adjournment of the hearing or examina- 
 tion, twenty-five cents: 
 
 Fees of Gourts of Special Sessions. 
 
 For a venire to summon a jury, twenty-five cents; 
 
 For swearing a jury, twenty-five cents; 
 
 For swearing each witness on the trial, five cents; 
 
 For a subpoena, including all names inserted therein, twenty- 
 five cents; 
 
 For a trial fee, one dollar per day during the necessary and 
 actual continuance of the trial; 
 
 For swearing constable, five cents; 
 
 For receiving and entering the verdict of the jury, twenty 
 cents; 
 
 For entering the sentence of the court, twenty-five cents; 
 
 For warrant of commitment on sentence, twenty-five cents; 
 
 For record of conviction and filing same, seventy-five cents. 
 
FEES OF CONSTABLES. 679 
 
 But all such charges in any oiae case, shall not exceed five 
 dollars, unless such court contmue more than one day; in such 
 case the costs of such additional day may be added thereto. 
 
 For a return to any writ of certiorari, to be paid by the 
 county, two dollars. {Laws of 1860, chap. 493, p. 984, \ 3.) 
 
 Whenever a conviction shall be had in any court of sessions 
 for any criminal offence, a record thereof shall be made by said 
 coui-t and filed in the ofiice of the clerk of the countj^ where 
 said conviction shall be had, within thirty days from the time 
 of said conviction; and whenever any fine imposed by said 
 court shall be paid to said court, the same shall be paid to the 
 treasurer of said county within thirty days after the receipt 
 thereof; and any neglect or refusal to file such conviction, or 
 pay over ^aid money within the period aforasaid, shall be 
 deemed a misdemeanor, {id. § 4.) 
 
 All acts, and parts of acts inconsistent with this act are here- 
 by repealed, except such as are locally applicable to any of the 
 cities of this State, {id. § 5.) 
 
 The Eevised Statutes provide, that the fees just specified shall 
 be divided equally between the persons composing a Court of 
 Special Sessions. (2 R. S. 749, § 2.) This provision is not 
 directly changed by the act to reduce the number of town offi- 
 cers, before referred to, {ante, p. 559,) whereby those Courts are 
 required to be held by a single magistrate. It is presumed, 
 therefore, that a single magistrate holding a Court of Special 
 Sessions is entitled to the same compensation that the three 
 . magistrates by whom the Court was formerly held, were entitled 
 to. 
 
 The fees of Justices of the Peace given by 2 K. S. 637, § 29, 
 do not apply to criminal cases. (2 )R. S. 650, § 1.) 
 
 JFees of Constables. 
 
 Serving a warrant or other process for the arrest of any 
 person, issued by any magistrate or Court, fifty cents; and the 
 same fees for traveling to make such service as are allowed for 
 serving a warrant in civil cases, (six cents a mile for going only.) 
 
 Taking a defendant in custody on a mittimus, twelve and a 
 half cents; 
 
 Conveying a person to the magistrate or Court before whom 
 
689 NEW* YORK JUSTICE. 
 
 he is to be brought, or to jail, twelve and a half cents, if within 
 one mile, and for every mile more, going only, six cents; 
 
 Serving a subpoena, twelve and a half cents, for each witness, 
 and the like mileage as above provided, but mileage can be 
 allowed only the distance actually and necessarily traveled; 
 (2 R. B. 750, § 4;) and no fee is allowed for serving any sub- 
 poena on behalf of a defendant. {Laws of 1845, cAop. 180, 
 § 18.) 
 
 Whenever a subpoena for witnesses in criminal cases or com- 
 plaints, containing one or more names, is served by a constable 
 or other oflScei-, such officer can be allowed for mileage, only for 
 the distance, going and returning, actually traveled to make 
 such service upon all the witnesses in such cases of complaint, 
 and not separate mileage for each witness, unless the board of 
 supervisors auditing accounts for such services deem it equitable 
 to make a further allowance. fLaws of 1836, c^ap. 506.) 
 
 The board of supervisors may allow such further compensa- 
 tion for the service of. process, and the expenses and trouble 
 attending the same, as they may deem reasonable. 
 
 J'or other services in criminal cases, for which no compensar 
 tion is specially provided by law, such sum as the board of 
 supervisors of the county shall allow. (2 B. -iS. 750, § 4.) 
 
 The provisions of law prohibiting the taking of any fees for 
 services in civil cases, other than such as are allowed by statute, 
 apply to the taking of fees for services in criminal cases beyond 
 the amount allowed by law for such services, (id. 753, § 17.) 
 The taking of fees not allowed by law is a misdemeanor, (id. 
 651, § 7.) 
 
PART III. 
 
 1 
 
 OF THE SPECIAL POWEES AOT) DUTIES OF 
 JUSTICES OF THE PEACE. 
 
PART III. 
 
 OF THE SPECIAL POWERS AND DUTIES OF JUSTICES OF 
 
 THE PEACE. 
 
 Having considered, as fully and particularly as the limits of 
 this work would permit, the civil arid criminal jurisdiction of 
 Justices of the Peace, we come now to the consideration of the 
 third and last division of our work, which embraces the powers 
 and duties conferred upon Justices by special statutory pro- 
 visions. 
 
 It is proper to say, with reference to all these powers and 
 duties, that the statute conferring or requiring them must be 
 strictly pursued. Indeed, the only safety that a Justice can 
 have in exercising these powers, especially in summarily con- 
 victing offenders, which, as we shall see, he may do in certain 
 * cases, is in following the precise commands of the statute. 
 Thus, if the statute requires two Justices of the Peace to exe- 
 cute a judicial power, they must meet and execute it together; 
 {The King agt. Forrest^ 3 Term, Eep. 38;) and if authority is 
 given to the next Justice of the county where the offence was 
 committed, he alone can exercise it. {Sanders' case, 1 Saun- 
 ders, 263, note.) 
 
 Justices, before rendering any service which they are required 
 to perform, may demand the fee allowed by la;w for such ser- 
 vice. (2i2. /S. 650, §^.) 
 
 Every sheriff, constable, marshal, or other officer, to whom is 
 directed and delivered any attachment, summons, precept to 
 summon a jury, warrant to apprehend a witness or any other 
 person, or any 'other process authorized by law to be issued by 
 a Justice of the Peace, in any special proceeding or matter 
 
684 NEW YORK JUSTICE. 
 
 before him, except civil actions, must execute such process, as 
 therein commanded; and, for any wilful neglect so to do, may 
 be fined by the Justice issuing the same, in a sum not exceeding 
 twenty-five dollars. (2 R. 8. 551, § 3.) 
 
 When any person has been personally summoned to attend 
 as a juror, to inquire inlo any iaatter or thing, or to hear and 
 try any controversy, in any special proceeding or matter abqve 
 specified, and wilfully neglects to attend in obedience to such 
 summons, he may be fined by the Justice issuing the samie, in a 
 sum not exceeding twenty-five dollars. But this section does 
 not extend to any case where special provision is made by law, 
 for punishing the default of any juror, {id. \ 4.) 
 
 When any sheriff, constable, or other officer, who has sum- 
 moned any jury, in the cases mentioned in the two last sections, 
 is ref uired by the Justice issuing the summons^ to attend smch 
 jury and tafce tfharge ©f them, he is bound to do so; and, for 
 any wilful neglect to obey such ordetr, or for any nnsconduct 
 while attending such jury, by wiich the rights or remedies of 
 imy party to such proceeding may be impaired or prejudiced, 
 such sheriff, constable, or other officer is liable to be fined by 
 the Justice befaise whom such jury has appeai'ed, in a sum not 
 exceeding twenty-five dollars, {id. § 5.) Upon such fine being 
 imposed in any of the cases above «pecified, notice thereof must 
 be given to the iperson fined, to the end that he may render an 
 excuse to the Justice, or show cause why such fine should be 
 remitted, {id. §'6.) If no such excuse be rendered, or cause' 
 shown, within thirty days after the service of such notice, and 
 such fine be moti'emitted by the Justice, the Justice must make 
 a special retann of the delinquency or misconduct for which 
 such fine was imposedi with the amount thereof, to the next 
 County Court of ithe county in which .such delinquent resides. 
 {id. \1.) 
 
 In case of the death, sickness, resignation, removal from 
 ijfficq, absence from the county sof his residence, or other disa- 
 bility, of any officer before whom any special 'proceedings.authop- , 
 ized by any 'Statute may have been conunenoed, and wbei-e no 
 exprieesiprovisionis made by law for -the continuance of such pro- 
 <ceedings, the same may be continued by the successor, in office of 
 such^offieer, or by any other officer residing in the same county 
 who -might voriginally have instituted such -jpEaQeedingsj or, ijf 
 
SPECIM, POWEKS OF JUSTICES. 685 
 
 there be no such officer in the same county, then by the nearest 
 public officer in any other county who might have originally 
 had jurisdiction of the subject matter of such proceedings, if 
 such matter had occurred or existed in his own county. 
 (2 R. 8. 284, § 51.) At the same time and place specified in 
 any notice or order which may have been given for parties to 
 appear, or for any other proceeding to be had, the officer sub- 
 stituted according to the foregoing or any other provision of 
 law, to continue proceedings commenced before another, may 
 make any order, and do and perform any act, in relation to 
 such proceedings, as if the same had been originally com- 
 menced before him. (td. 285, § 52.) But, before any pro- 
 ceedings can be had before any such substituted officer, at any 
 other time or place than stich as was specified in the notice or 
 order requiring parties to appear, notice of such substitution 
 must be given to the parties who may be affected thereby, 
 either by personal service, or by publication, in such manner 
 and for such time as the substituted officer shall direct. Such 
 substituted officer will thereupon be authorized to make every 
 order, and to do and perform every act, in relation to such pro- 
 ceedings, as if the same had been originally commenced before 
 him. {id..(i 53.) 
 
 With these general remarks, we now proceed to consider in 
 detail the special powers and duties conferred upon Justices of 
 the Peace. 
 
686 NEW YORK JUSTldB. 
 
 CHAPTER I. 
 
 OF THE ACKNOWLEDGMENT AND PROOF OF CON- 
 VEYANCES AND OTHER WRITTEN INSTRUMENTS. 
 
 To entitle any conveyance of real estate to be recorded, it 
 must be acknowledged by the parties executing it, or be proved 
 by a subscribing witness thereto, before a proper oflEicer. (1 R. 
 S. 756, § 4.) By the act abolishing the office of commissiojier 
 of deeds in the several towns of this State, its powers and 
 duties were conferred upon ■ Justices of the Peace in towns,, 
 {Laws of 1840, chap. 238,) who fiave power, therefore, at any 
 place within the counties in which they reside, 1. To take the 
 proof and acknowledgment of conveyances of real estate, and 
 of the' discharge of mortgages; 2. To take the acknowledgment 
 of satisfaction of judgments in the County Court of the county 
 for which they are elected, or in the Supreme Court. (2 R. 8. 
 282, § 41.) Although, prior to the amendments made to the 
 Code in 1849, Justices of the Peace in towns had power to 
 take the acknowledgment of bail in any action of the Supreme 
 Court, and in the County Court of the county for which they 
 were elected, (id.) 
 
 A Justice cannot take an acknowledgment of a conveyance 
 unless he knows, or has satisfactory evidence, that the person 
 making it is the individual described in, and who executed, the 
 conveyance. (1 id. 758, § 9.) 
 
 Where the execution of a conveyance is proved by a sub- 
 scribing witness thereto, he must state his own place of resid- 
 ence, and that he knew the person described in and who exe- 
 cuted the conveyance; but such proof cannot be taken, unless 
 the Justice is personally acquainted with the witness, or has 
 satisfactory evidence that he is the same person who was the 
 subscribing witness. (1 R. S. 758, § 12; 2 Wend. 555; 7 id. 
 364; Gillett vs. Stanley, 1 Hill, 121.) 
 
 The identity of a grantor, on an acknowledgment by him, 
 need not be proved by a subscribing witness, but may be proved 
 by any one, so that the evidence be satisfactory to the officer. 
 
ACKNOWLEDGMENT AND PEOOP OP CONVEYANCES. 687 
 
 {Dibble ys. Rogers, 13 Wend. 536.) On taking proof of execu- 
 tion, the Justice, should be careful to ascertain that the sub- 
 scribing witness saw the execution, and knew the grantor of the 
 deed, and not that the execution was acknowledged to him by 
 the grantor. {JSTorman vs. Wells, 17 Wend. 136; 2 id. 555.) 
 
 The acknowledgment of a mnxried woman residing within 
 this State, to g, conveyance purporiting to be executed by her, 
 cannot be taken, unless, in addition to the Iniowledge or satis- 
 factory evidence of her identity, which the Justice must have," 
 she acknowledges, on a private examination, apart from her 
 husband, that she executed the conveyance freely, and without 
 any fear or compulsion of her husband. (1 R. 8. 758, ^ 10.) 
 But, when any married woman, not residing in this State, joins 
 with her husband in any conveyance of any real estate situated 
 within this State, the acknowledgment or proof of the execution 
 of such conveyance by her, may be the same as if she were sole. 
 {id. § 11.) And it is held that since the acts of 1848 (chapter 
 200) and 1849 (chapter 375), which enable any married female 
 to take, &c., &c., and convey in the same manner as if she were 
 unmarried — where a married woman conveys her real property 
 acquired since the passage of the act, the deed may be executed 
 and acknowledged in like manner, and in the same form as if she 
 were unmarried. She need not acknowledge on a private ex- 
 amination, or apart from her husband, or acknowledge that she 
 executed without any fear or compulsion of her husband. {Broad 
 vs. Hurlfyhrey, 17 Barb. 660.) 
 
 Where a married woman executes a power by grant, the grstnt 
 is not a valid execution of the power, unless it be acknowledged 
 by her on a private examination, in the manner above prescribed 
 in regard to conveyances by married women. (1 R. 8. 736, § 117.) 
 
 Whenever erasures or interlineations occur in a conveyance, 
 they should be noted previous to the execution, or be men- 
 tioned in the certificate of the officer tald|(i^the proof or ac- 
 knowledgment. {Lewis vs. Payne, 8 Cow. 71.) ' 
 
 The Justice taking the acknowledgment or proof of any con- 
 veyance, must endorse a certificate of the proof or acknowledg- 
 ment, signed by himself, on the conveyance. In such certifi- 
 cate, he must set forth the matters before specified as required 
 to be done, known or proved on such acknowledgment or proof, 
 together with the names of the witnesses examined before Mm, 
 
688 NEW TORE TO3TICE. 
 
 their places of residence, and the substance of the evidence given 
 by them. (1 R. S. 759, § 15.) 
 
 The Justice has power to administer all oaths that may be 
 necessary in the course of taking any acknowledgment or proof. 
 {id. 284, § 49; Laws of 1840, chap. 288.) 
 
 The certificate need not be in the precise words of the statute, 
 but it must show a substantial compliance therewith; {Meriam 
 vs. Harsen, 2 Barb. Oh. R. 232; 13 Wend. 536'; 14 U. 562;) 
 nor is it necessary that the Justice should certify that the wit- 
 ness who identifies a subscribing witness is known to him. 
 (Jackson vs. Vicjcory, 1 id. 406; ll Johns. 434.) 
 
 A certificate that a married woman acknowledged that she 
 executed a conveyance withovt any fear, threat or convpulsiom, 
 of her husband, is sufficient. The word freely, in the statute, 
 does not import that the wife should execute the instrument 
 without a motive, as a mere act of generosity, and without any 
 hope of present or future benefit, but that she should execute it 
 without constraint, or coercion, or feait of injury from her hus- 
 band. ■ (2 Barb. Qh. R. 232; Dennis vs. Tarpenny, 20 Barb. 
 371.) So a certificate of acknowledgment by a wife on an 
 examination, " separate and apart from her husband," is suffi- 
 cient, though the word " private" is omitted. 
 
 It is not necessary that the certificate should be endorsed on 
 the deed; it may be on any part of it. And, if it state that the 
 Justice knew the grantor to be the person who exemted the 
 deed, it will be sufficient, although it do not state that he knew 
 him to be the person described in the deed. (Thurman vs. 
 Cameron, 24 Wend. 87.) 
 
 The Justice should state, a,fter his signature, his official title, 
 and the name of the county in which he is a Justice. 
 
 Any Justice who is guilty of any malfeasance, or fraudulent 
 practice, in the execution of any duty prescribed by law in re- 
 lation to the takiflgp or certifying the proof or acknowledgment, 
 of any conveyance, mortgage, or instrument in writing, is iguilty 
 of a misdemeanor, and, upon conviction, nlay be punished by 
 fine or imprisonment, and is also liable in danjages to the party 
 injured. (1 R. 8. 762, \ 35.) 
 
 The term conveyance, as used in this chapter, and in the stat- 
 utory provisions in regard to taking the proof and acknowledg- 
 ment of conveyances, embraces every instrument in writing by 
 
ACKNOWLEDGMENT AND PKOOF OF CONVEYANCES. 689 
 
 which any estate or interest in real estate is created, aliened, 
 mor%aged, or assigned, or by which the title to any real estate 
 may be affected in law or equity, except last wills and tester 
 ments, leases for a term not exceeding three years, and execu- 
 tory contracts for the sale or purchase of lands. (1 B. S. 762, 
 § 38.) 
 
 A Justice can also take the acknowledgment or proof of the 
 execution of any written instrument, except a promissory note, 
 a bill of exchange, or the last will of a deceased person, in the 
 same manner that he can take the proof or acknowledgment 
 of a conveyance of real estate, and, when he does so, must en- 
 dorse on the instrument a like certificate. {Laws of ^833, chop. 
 271, § 9.) 
 
 The docket of a judgment rendered in any Court of Record 
 may be cancelled and discharged by the clerk thereof, upon 
 filing with him an acknowledgment of satisfaction, signed by the 
 party in whose favor such judgment was obtained, or by his 
 executors or administrators, duly authenticated. (2 B. S. 362, 
 § 22.) Such acknowledgment may be made before Justices of 
 the Peace, in towns, (id. § 23; Laws of\ 1840, cha;p. 238.) The 
 officer must certify that the party maldng the same was known, 
 or made known to such officer, by competent proof. (2 i?. 8. 
 362, § 23; Laws of 1834, chaj). 262.) Such acknowledgment 
 may also be made by the attorney on record of the party in 
 whose favor the judgment was rendered, within two years after 
 the filing of the record of the judgment. (2 Lt. 8. 362, § 24.) 
 
 \ 152. Certificate of Acknowledgment oy a Forty haovni to the 
 
 Officer. 
 County, ss:* 
 On the fii'st day of June, in the year of our Lord one thousand 
 eight hundred and fifty-three, before me personally came A B, 
 to me known to be the individual described iii, and who executed 
 the within \or, above, or, annexed] conveyance \or, bond; or, 
 letter of attorney; or, instrument in writing,] and acknowledged 
 that he executed the same. 
 
 J H B, Justice of the Peace, in and for said county. 
 
 * If a conveyance or instrument is proved or acknowledged in this state, but it 
 is to be used or recorded in another state, the name of the state should be insert- 
 ed in the heading of the certificate as well as that of the county. 
 44 
 
690 NEW YORK JUSTICE, 
 
 § 1^3. By a Party ^ where his Identity is proved to the Officer. 
 
 County, ss: * 
 
 On the first day of June, &c., before me personally came A B, 
 proved to me satisfactorily to be the same person described in, 
 and who executed the within conveyance, by the oath of C D, 
 sicbscribiny loitness thereto* who, being by me duly sworn, did 
 depose and say, that he resided in the of , in said 
 
 county, that he was acquainted with the said A B, and that he 
 kne'^ him to be the individual described in and who executed 
 the within conveyance; and, thereupon, the said A B acknowl- 
 edged that he executed the same. 
 
 J H B, Justice, &c.\ 
 
 § 154. By Husband and Wife, both known to the Officer. 
 
 County, ss: ^ 
 
 On the first day of June, &c., before me personally came A B, 
 and Mary his Avife, to me known to be the individuals described 
 in, and who executed the within conveyance, and severally 
 acknowledged that they executed the same; and the said Mary, 
 on a private examinationj by me made, apart from her husband, 
 acknowledged that she executed the same freely, and without 
 any fear or compulsion of her husband. 
 
 J H B, Justice, &c.- 
 
 § 155. By Husband and Wife, both proved to the Officer. 
 
 County, ss: 
 On this first day of June, &c., before me personally came A 
 B, and Mary his wife, both proved to me satisfactorily to be the 
 individuals described in, and who executed the within convey- 
 an,ce, by the oath of C D, subscribing witness thereto, who, being 
 by me duly sworn, did depose and say, that he resided in the 
 of ,'in said county; that he was acquainted with 
 
 the said A B, and Mary his wife; that he knew them to be the 
 
 • If the person by whose oath the Identity is established is not a subscribing 
 witness, the words in italic, in the above and subsequent forms, must be omitted. 
 
 t The official title of the Justice should always be written in full, as in Fornt 
 § 152, and not be abbreviated. 
 
 if It is held that the private examination of a wife may be omitted where the 
 conveyance is of her separate property acquired since the acts of 1848 and '49, and 
 that her acknowledgment may be in such case as if she were sole, (^nie, 687; 
 Srood vs. Humphrey, 17 Barb. 660.) But the former practice and form had better 
 be followed. 
 
ACKNOWLEDGMENT AND PROOF OP CONVEYANCES. 691 
 
 individuals described in, and who executed the within couTey- 
 ance; and, thereupon, they severally acknowledged that they 
 executed the same; and the said Mary, &c., [as in'^ 154, to the 
 end.] J H B, Justice, '&c. 
 
 § 156. By Husband and Wife — Husband known, and Wife 
 proved to the Officer. 
 
 County, ss: 
 On the first day of June, &c., before me personally came 
 A B, and Mary his wife; the said A B being known to me to 
 be one of the individuals described in, and. who executed, the 
 within conveyance; and the said Mary being proved to me 
 satisfactorily to be one of the individuals described in, and who 
 executed, the within conveyance, by the oath of C D, subscrib- 
 ing vyiiness thereto, who, being by me duly sworn, did depose 
 and say, that he resided in the town of , in said county, 
 
 that he was acquainted with the said Mary, the wife of the said 
 A Bj and knew her to be one of the individuals described in, 
 and who executed, the said conveyance; and, thereupon, the 
 said A B and the said Mary his wife, severally acknowledged 
 that tlioy executed the same; and the said Mary, &c., \as in 
 \ 154, to the enc?.] J H B, Justice, &c. 
 
 § 157. By two Husbands and their Wives, all known to the 
 
 Officer. 
 County, ss: 
 On the first day of June, &c., before me personally came 
 A B, and Mary his wife, and C D, ancl Lucy his wife, known 
 to me to be the individuals described in, and who executed the 
 within conveyance, and severally acknowledged that they exe- 
 cuted the same; and the said Mary and Lucy, severally, each 
 for herself, on a private examination by me made, apart from 
 her husband, acknowledged that she executed the same freely, 
 and without any fear or compulsion of her husband. 
 
 J H B, Justice, &c. 
 
 ^158. By Wife in separate Certificate. 
 
 County, ss: 
 On the first day of June, &c., before me personally cg-me 
 M B, wife of A B, described in the within conveyance, the said 
 M B being known to me to be one of the individuals described 
 in, and who executed the said conveyance; and she, on a private 
 examination by me made, apart from her husband acknow- 
 ledged that she executed the same freely, and without any fear 
 or compulsion of her husband. J H B, Justice, &c. 
 
692 NEW YORK JUSTICE. 
 
 § 159. By two or morei Parties. 
 
 County, ss: « 
 On the first day of June, &c., before me personally came 
 A B and C D, to me known to be the individuals described in, 
 and who executed, the within conveyance, and they severally, 
 each for himself, acknowledged that they executed the same. 
 
 J H B, Justice, &c. 
 
 \ 160. By one of several Parties. 
 
 County, ss: 
 On the first day of June, &c., before me personally came 
 A B, to ifte known to be one of the individuals described in, 
 and who executed the within conveyance, and acknowledged 
 that he executed the same. J H B, Justice, &c. 
 
 § 161. By an Attorney. 
 County, ss: 
 On the first day of June, &c., before me personally came 
 A B, known to me to be the individual described in, and who 
 executed the within conveyance, and acknowledged that he 
 executed the same as the act and deed of C D, therein 
 described, by virtue of a power of attorney, duly executed 
 by the said C D, bearing date the day of , in 
 
 the year , and recorded in the office of the clerk of the 
 
 county of , in book of , page , on the 
 
 day of , in the year 
 
 J H B, Justice, &c. 
 
 \ 162. By an Executor or Trustee. 
 
 County, ss: 
 On this first day of June, &c., before me personally came 
 A B, known to me to be the Executor of the last will and 
 testament [or, Trustee of the estate] of C D, mentioned and 
 described in the within conveyance, and also known to me to 
 be the same individual described in and who executed the said 
 conveyance, and acloiowledged that he executed the same, as 
 such Executor [or, Trustee] as aforesaid. 
 
 J H B, Justice, &c. 
 
 § 163. Certificate of proof hy a SvLscHhing Witness hnovm to 
 
 the OJUcer. 
 County, ss: 
 On this first day of June, &c., before me personally came 
 C D, subscribing witness to the within conveyance, to me 
 
ACKNOWLEDGMENT AND PROOF OF CONVEYANCES. 693 
 
 known, and he, being by me duly sworn, did depose and say, 
 that he resided in the • of , in said county; that 
 
 he knew A B, the individual described in, and who executed 
 the said conveyance; that he was present and saw the said A B 
 execute the same; and that thereupon he, the said C D, became 
 the subscribing witness thereto. J H B, Justice, &c. 
 
 ^ 164. By a Subscribing Witness where his Identity is proved 
 
 to the officer. 
 County, ss: 
 On this firsi; day of June, &c., before me personally came M 
 N, and C D, and the said M N, to me known, having been by 
 me duly sworn, did depose and say, that he resided in the 
 
 of in said county; that he was acquainted with the 
 
 said C D, the subscribing witness to the within conveyance, and 
 that he knew him to be the same person, which is to roe satisfac- 
 tory evidence thereof; and the said C D, being by me duly 
 sworn, &c., [ds in § 163 to the end.] J H B, Justice, &c. 
 
 § 165. JBy Subscribing Witness — Grantors residing in another 
 
 State. 
 County, ss: 
 On this first day of June, &c., before me personally came C 
 D, to me known, and he, being by me duly sworn, did depose 
 and say, that he resided in the of in said county; 
 
 that he knew A B, and E his wife, the individuals described in, 
 and who executed the within conveyance; that they severally 
 resided in the town of in the State of ; that he 
 
 was present and saw them execute the said conveyance; that 
 they severally acknowledged to him the execution thereof ; and 
 that he thereupon became the subscribing witness thereto. 
 
 J H B, Justice, &c. 
 
 § 166. The same, by Subscribing Witness proved to the Officer. 
 
 County, ss: 
 On this 'first day of June, &c., before me personally came M 
 N, and C D, and the said M N, to me known, having been by 
 me duly sworn, did depose and say, that he resided in the 
 of in said county; that he was acquainted with the said 
 
 C D, the subscribing witness to the within conveyance, and that 
 he knew him to be the same person, which is to me satisfactory 
 evidence thei-eof ; and the said C D, being by me duly sworn, 
 on his oath, said, that he resided in the of in 
 
 the State of , that he knew A B, and E his wife, &c., 
 
 [as in § 165 to the end.] J H B, Justice, &c. 
 
694 NEW YORK JUSTICE. 
 
 § 167. By Subscnbing Witness as to the Husband, and Acknowl- 
 edgment by the Wife, both being known to the Officer. 
 
 County, ss: 
 On this first day of June, &c., before me personally came C 
 D, to me known, and he, being by me duly sworn, did depose 
 aiid say, that he resided in the of in said county; 
 
 that he knew A B, one of the individuals described in, and who 
 executed the within conveyance; that he. was present and saw 
 the said A B execute the same; and that thereupon he, the said 
 C D, became the subscribing witness thereto. At the same tiine, 
 also appeared before me E B, the wife of the said A B, to me 
 known to be one of the individuals described in, and who executed 
 the said conveyance, and she, on a private examination by me 
 made, apart from her husband, acknowledged that she executed 
 the within conveyance freely, and without any fear or compul- 
 sion of her said husband. J H B, Justice, &c. 
 
 ^ 168. By Subscribing Witness as to the Husband, and Achnowl- 
 edgment by the Wife, both proved to the Officer. 
 
 County, ss: 
 On this first day of June, &c., before me personally came C 
 D, and he, being by me duly sworn, &c., \as in § 164, to the end, 
 omitting the words in italic, and then addi\ And at the same 
 time also appeared before me M N, to me personally known, 
 and he, being by me duly sworn, did depose and say, that he 
 resided in the of in the county of ; that 
 
 he knew the said C D, to be the same person who was a sub- 
 scribing witness to the within conveyance, which is to me satis- 
 factory evidence thereof; and that he also knew the said E B, 
 who made the aforesaid acknowledgment to be one of the indi- 
 viduals described in, and who executed the said conveyance, 
 which is to me satisfactory evidence thereof. 
 
 J H B, Justice, &c. 
 
 § 169. By Subscribing Witness to Deed executed by an Attoi-ney. 
 
 Couhty; ss: 
 On this first day of June, &c., before me personally came C 
 D, to me known, and he, being by me duly sworn, did depose 
 and say, that he resided in the of in said county; 
 
 that he knew A B, the individual described in, and who executed 
 the within conveyance as the Attorney in fact of M N, therein 
 named; and that he was present and saw the said A B, execute 
 the same as such Attorney; that the said A B, acknowledged to 
 
ACKNOWLEDGMENT AND PROOF OF CONVEYANCES. 695 
 
 him that he executed the same as such Attorney; and that there- 
 upon he, the said C D, became the subscribing witness thereto. 
 
 J H B, Justice, &c. 
 
 § 170. Proof of Deed hy a Religious Oorporation. 
 County, ss: 
 On this first day of June, &c., before me personally came A 
 B, subscribing witness to the within conveyance, to me known, 
 and he, being by me duly sworn, did depose and say, that he 
 resided in the of in said county, and was the Clerk 
 
 of the Corporation of the Eector, Churchwardens, and Vestry- 
 men of the Protestant Episcopal Church of St. Peter's [or, the 
 Corporation of the Trustees of the first Methodist Episcopal 
 Society,] in the of aforesaid; that the seaj affixed to 
 
 the within conveyance was the corporate seal of the said corpo- 
 ration; that it was affixed by order of the said corporation; and 
 that he, the said A B, became the subscribing witness to the 
 execution of the said conveyance by virtue of a like order of 
 the said corporation. 
 
 J H B, Justice, &c. 
 
 § 171. Satisfaction of Mortgage and Acknowledgment, by Indi- 
 vidual known to the Officer. 
 
 I, A B, of the town of in the county of and 
 
 State of , do hereby certify, that a certain mortgage, 
 
 bearing date the day of , in the year one thousand 
 
 eight hundred and , made and executed by C D, of the 
 
 first part, to me the said A B, of the secojid part, and recorded 
 in the office of the Clerk of the county of , in book 
 
 of mortgages, at page , on the first day of June; 1852, \if 
 
 the mortgage has been assigned, insert the narae of the assignee, 
 instead of A B, at the commencement of the certificate, omit the 
 words, "-me, the said," in italic, and insert here: and which said 
 moutgage was duly assigned to me by the said A B, the mort- 
 gagee above named, by assignment dated the day of 
 , in the year , and recorded in the office of the 
 Clerk of the county of aforesaid, in book of mort- 
 gagees, at page , on the tenth day of June, A. D., 1852,] is 
 fully paid, satisfied and discharged. 
 
 Dated the first day of June, 1853. A B. 
 
 In presence of 
 GH. 
 
 County, ss: 
 On this first day of June, in the year one thousand eight hun- 
 dred and fifty-thi-ee. before me came A B, known to me to be 
 
696 NEW YORK JUSTICE. 
 
 the individual described in, and who executed, the above certifi- 
 cate, and acknowledged that he executed the same. 
 
 J H B, Justice, &c. 
 
 § 172. Certificate of Satisfaction to be written on a Mortgage. 
 
 I, A B, the mortgagee within named, [or, the assignee of the 
 within named mortgagee,] do hereby certify that the within 
 named mortgage is fully paid, satisfied and discharged. Dated 
 the first day of June, A D. 1853. A B. 
 
 \Add acknowledgment as in \ 171.J 
 
 § 173. Satisfaction by an Executor, Administrator or Trustee. 
 
 I, A B, executor of the last will and testament of C D, de- 
 ceased, [or, administrator of the goods, chattels and credits, 
 which were of C D, deceased, or, trustee of the estate of C D, 
 &c.,] do hereby certify that a mortgage made and executed by 
 E F to the said C D, in his lifetime, [or, to me as such 
 as aforesaid,] bearing date, &c. [Follow the preceding forms, 
 as the case may require.^ A B. 
 
 In presence of 
 GH. 
 
 % 174. Satisfaction of Judgment in a Justice's Court, where a 
 Transcript is filed in the County Clerk's Office. 
 
 County Clerk's Office: 
 
 A B "1 Judgment rendered in favor of the plaintiff, against 
 
 against !>the defendant, before J H B, Esq., a Justice of the 
 
 C D. J Peace in and for said county, for dollars and 
 
 cents, damages and costs. 
 
 Transcript filed and judgment docketed, the day of 
 
 , in the year 1852. 
 Satisfaction of the above mentioned judgment is hereby ac- 
 knowledged. A B. 
 
 County, ss: 
 Subscribed and acknowledged before me, the day of 
 
 , in the year 1853, by A B, knovra to me [or, made 
 known to me by the oath of E F] to be the plaintiff above named 
 [or, to be one of the plaintiffs above named.] 
 
 J H B, Justice, &c. 
 
 § 175. Satisfaction of Judgment in a Court of Record. 
 
 Supreme Court [or, County Court:] 
 
 A B ^ 
 
 .1 Of the day of January, one thousand eight hun- 
 
 p-T) \ dred and foi'ty-seven. 
 Satisfaction is acknowledged between A B^ plajntiff, and CD, 
 
ACKNOWLEDGMENT AND PROOF OF CONVEYANCES. 697 
 
 defendant, for dollars. Judgment docketed the tenth 
 
 day of January, one thousand eight hundred and forty-five, in 
 the office of the clerk of county. 
 
 A B. [or, T S, Attorney for Plaintiflf.] 
 
 County, ss: 
 
 Subsci-ibed and aclcQowledged before me, the day of 
 
 , 1853, by A B, known to me [or, made known to me 
 
 by the oath of E F] to be the plaintiff in the above entitled 
 
 cause [or, the Attorney for the plaintiff in the above entitled 
 
 cause, or, one of the plaintifis in the above entitled cause.] 
 
 J H B, Justi6e, &c. 
 
 ^ 176. Oat/i to be administered to a SubscHbinq Witness. 
 
 You do solemnly swear, that you will true answers make, to 
 such questions as shall be put to you, touching the execution of 
 this deed; So help you God: [or, You do swear in the presence 
 of the ever-living God, that, &c., as above, omitting the words: 
 So help you God; or. You do solemnly, sincerely, and truly 
 declare and affirm, that, &c., as above, omitting the words as 
 aforesaid.^ {For the cases in which these various forms of oath 
 are projper, see ante, p. 295.) 
 
 ^ 177. Oath to a Witness proving the Identity of the Parties, or 
 of the Subscribing Witness, to a Conveyance. 
 
 You do solemnly swear, that you will true answers make to 
 such questions as shall be put to you, JK)uching the identity of 
 the parties [or, of the subscribing witness] to this conveyance; 
 So help you God. [If necessary, vary as in the foregoing 
 Form.^ 
 
 Fees. 
 
 Justices are entitled for taking the proof or acknowledgment 
 of a conveyance or mortgage of real estate, or of any written in- 
 strument, to be read in evidence, and drawing and signing the 
 certificate — for one person, to a fee of twenty-five cents; for 
 each addditional person having executed the same instrument, 
 twelve and a half cents; for swearing each witness, six cents; 
 {Laws of 1840, chap. 238, § 2;) 
 
 For taking the acknowledgment of satisfaction of a judgment 
 in the Supreme Court or County Court, thirty-seven and a half 
 cents. (2 i?. >S', 637, § 28.) 
 
698 
 
 NEW YORK JUSTICE. 
 
 CHAPTER II. 
 
 OF AFFIDAVITS AND OATHS. 
 
 "Whenevee any oath or affidavit is or may be required or 
 authorized by law, in any cause, matter, or proceeding, (except 
 oaths to jurors and witnesses in the trial of a cause, oaths of 
 office, and such other oaths as are required by law to be taken 
 before particular officers,) the same may be taken before any 
 Justice of the Peace in a town. The oath or affidavit must be 
 certified by the Justice to have been taken before him. (2 R. 
 S. 284, § 49; Laios of 1840, chap. 238.) 
 
 A Justice has power to administer an oath and take an affi- 
 davit only in a case where such oath or affidavit is or may be 
 required or authorized by law in some cause, matter or proceed- 
 ing. Justices should, therefore, be careful not to administer 
 oaths or take affidavits in regard to any and every conceivable 
 matter where an oath or affidavit is desired by a party; for, un- 
 less the oath or affidavit be authorized or required by law, the 
 action of the Justice will be wholly extra-official. And such 
 action may be the source of annoyance and trouble to him; as, 
 if he should swear a person to a libelous paper, where the oath 
 was not required by law, he might perhaps make himself liable 
 for assisting in the publication of the libel. 
 
 Justices are specially authorized to administer oaths to arbi- 
 trators, swearing th-sm faithfully and fairly to hear and examine 
 the matters in controversy before them, and to make a just 
 award, according to the best of their understanding. (2 R. S. 
 541, § 5, as amended hy Laws of 1843, chap. 187.) 
 
 They are also specially authorized to administer to any super- 
 visor, town clerk, assessor, overseer of the poor, commissioner 
 of highways, or town sealer, the oath of affirmation of office pre- 
 scribed in the 12th article of the Constitution, thus: 
 
 " I do solemnlj'^ swear, \or, affirm, as the case may 5e, j that 
 I will support the Constitution of the United States, and 
 the Constitution of the State of New York, and that I will 
 
AFFIDAVITS AND OATHS. 699 
 
 faithfully discharge the duties of according to the best 
 
 of my ability." 
 
 This oath or affirmation must be in writing, and be subscribed 
 by the party. (1 H. 8. 345, § 13.) And the Justice must also 
 certify in writing the day and year when the oath was taken, 
 and deliver the certificate to the party making the oath. (^id. 
 
 §14-). 
 
 Justices are also authorized to administer the Constitutional 
 
 oath to any commissioned officer of the militia, {id. 290, § 29.) 
 
 The Justice must endorse a certificate of the oath on the officer's 
 
 commission, {id. § 30.) 
 
 It is further provided, that whenever application is made to 
 any p\iblic officer to do any act in an official capacity, and such 
 officer requires information or proof, to enable him to decide on 
 the propriety of doing such act, such information or proof may 
 be required to be given by affidavit, and such officer may admin- 
 ister all necessary oaths for that pm-pose. (2 id. 552, § 11.) 
 
 As to the various modes of administering oaths, see ante, p. 
 295, where the Forms are given. The following is the usual 
 form of swearing a person to an affidavit: 
 
 § 178. Oath to a Deponent. 
 
 You do solemnly swear, that the contents of this affidavit, by 
 you subscribed, are true; so help you God. [Vary as in § 42 
 and § 43, when necessary.\ 
 
 A five cent stamp is to be affixed to each affidavit, except in 
 suits or legal proceedings, and must be cancelled by the Justice. 
 
 Fees. 
 
 For administering an oath or affirmation, in cases where no 
 fee is specially provided by law, and certifying the same when 
 required, twelve and a half cents, {id. 637, § 28.) ^ 
 
 But a Justice is not entitled to any fee for administering the 
 oath of office to any military officer, or to any town officer, or 
 for certifying the same. {id. 652, § 17; id. 290, § 31; id. 345, 
 
700 NEW YORK JUSTICE. 
 
 CHAPTER III. 
 
 OF APPEENTICES. 
 
 Every male infant, and every unmaiTied female under the age 
 of eighteen years, with' the consent of the persons or officers 
 hereinafter mentioned, may, of his or her own free will bind 
 himself, or herself, in writing, to serve as clerk, apprentice, or 
 servant, in any profession, trade or employment^ if a male, 
 until the age of twenty-one years, and if a female, until the age 
 of eighteen years; or for any shorter time. Such binding will 
 be as valid and effectual as if the infant were at full age at the 
 time of making the engagement. (2 JR. S. 154, § 1.) Such 
 consent must be given: 1. By the father of the infant, and 
 mother, if living. If he be dead, or be not in a legal capacity 
 to give his consent, or if he has abandoned and neglected to 
 provide for his family, and such fact be certified by a Justice 
 of the Peace of the town, and endorsed on the indenture, then, 
 2d. By the mother. If the mother be dead, or be not in a legal 
 capacity to give such consent, or refuse, then, 3. By the guar- 
 dian of such infant duly appointed. If such infant have no 
 parent living, or none in a legal capacity to give consent, and 
 there be no guardian, then 4. By the overseers of the poor, or 
 any two Justices of the Peace of the town, or the County Judge 
 of the county where such infant resides, (id. § 2; Laws of 
 ■ 1862, chap. 172, p. 345.) 
 
 Such consent must be signified in writing, by the person 
 entitled to give the same, by a certificate at the end of, or en- 
 dorsed upon, the indentures, and not otherwise. (2 E. S. 154, 
 § 3.) No particular form of words is necessary for the certifi- 
 cate. {.People vs. First Judge, 2 Hill, 596.) • 
 
 An infant cannot be bound as an apprentice, unless he is a 
 party to and executes the deed or indenture. {Matter of Mc- 
 Dowell, 8 Johns, 328.) 
 
 The executors of any last will of a father, who are directed 
 in such will to bring up his child to some trade or calling, 
 may bind such child to service, as a clerk or apprentice ia 
 
I 
 APPRENTICES. 701 
 
 like manner as the father might have done, if living. (2 R. 8. 
 154, ^ 4.) 
 
 The county superintendents of the poor in the sev^al counties 
 may bind out any child, under the age above specified, who is 
 sent to any county poor-house, or who is, or whose parents are 
 chargeable to any county, to be clerlis, apprentices, or servants, 
 until such child, if a male, shall be twenty-one years old, or if a 
 female, shall be eighteen years old; which binding will be as 
 efiectual as if such child had bound himself with the consent of 
 his father, (id. § 5.) 
 
 The overseers of the poor of any town or city may, in like 
 manner, bind out any such child, who, or whose parent or parents, 
 is or are chargeable to such town or city, or who has been sent 
 to any poor-house , other than a county poor-house, with the con- 
 sent in writing of any two Justices of the Peace of the town, or 
 of the mayor, recorder, and aldermen, of any city, or of any two 
 of them. {id. 155, § 6.) 
 
 When a person is relieved, on his own application, by an 
 overseer of the poor, without a previous order for that purpose, 
 that is suiScient to authorize the overseers to bind out the chil- 
 dren of such person as poor apprentices. {SchexinmrTiom vs. 
 Hull, 13 Johns. 270.) If one overseer of the poor bind a 
 pauper child to the other pverseer, the indenture will be defec- 
 tive; the statute declaring that the overseers may bind out a child. 
 {Overseers vs. Overseers, 6 Cow. 658.) 
 
 No child of an Indian woman cai;! be bound as an apprentice 
 under the foregoing provisions, except in the presence, and with 
 the consent of a Justice of the Peace, a certificate of which con- 
 * sent, signed by the Justice, must be filed with the clerk of the* 
 town in which the indenture of apprenticeship is executed. (2 
 B. 8. 155, § 7.) 
 
 The age of every infant so bound, must be inserted in the 
 indentures, and must be taken to be the true age, without further 
 proof thereof; and, whenever any public ofiicers are authorized 
 to execute any indentm-es, or their consent is required to the 
 validity of the same, it is their duty to inform themselves fully 
 of the infant's age. {id. § 8.) The indenture is only ^nma 
 facie evidence of the age of the apprentice, and he may go 
 behind it, and show what his true age is. , {Matter of Brennan, 
 18and.ni.) 
 
702 NEW YOEK JtJSTICE. 
 
 Every sum of money paid, or agreed for, in relation to the 
 binding out of any clerk, or apprentice, must be inserted in the 
 indentures. (2 B. 8. 155, § 9.) 
 
 Whenever any child is bound out by the county superintend- 
 ents of the poor of any county, or by the overseers of the poor 
 of any city or town, the indentures must contain an agreement 
 on the part of the person to whom such child is bound, that he 
 will cause such child to be instructed to read and write, and, 
 if a male, will cause him to be instructed in the general rules 
 of ai'ithmetic; and every such indenture must also . contain an 
 agreement that the master will give to such apprentice, at the" 
 expiration of his or her service, a new bible, {id. § 10.) 
 
 The counterpart of any indentures executed by the county 
 superintendents of the poor, must be deposited by them in the 
 ofEiee of the clerk of the county; and the counterpart of such 
 indentures executed by any overseers of the poor, must be de- 
 posited by them in the office of the clerk of their city or town. 
 [id. § 11.) 
 
 . The statute does not require any particular business to be 
 specified, and it is sufficient that the master agrees to bring up 
 the apprentice, and teach him such manual employment as shall 
 be found best adapted to his talents and capacity. Therefore, 
 in a case where the master was described as trustee of a society, 
 and the apprentice was to be under his care and in his employ- 
 ment, in whatever might be for his present good, or tend to his 
 future welfare, it was held to be sufficient. {People vs. Pillow, 
 1 Sandf. 672.) 
 
 Any person coming, from any foreign country beyond sea, 
 may bind himself to service, if an infant, until the age of twenty- ' 
 one years, or for a shorter term. Such contract of service, if 
 made for the purpose of raising money to pay his passage, or 
 for the payment of such passage, may be for the term of one 
 year, although such term may extend beyond the time wheii 
 such person will be of full age; but it can in no case be for a 
 longer term. (2 li. S. 155, § 12.) No contract made as afore- 
 said will bind the servant, unl6ss it be acknowledged by him 
 before some mayor, recorder, or alderman of a city, or some 
 Justice of the Peace; nor unless a certificate of such acknowl- 
 edgment, and that the same was made freely, on a private ex- 
 amination, be endorsed upon such contract, {id. 156, § 13.) And 
 
APPRENTICES. 703 
 
 such contract may be assigned by the master, by an instrument 
 in wi'iting, endorsed thereon, executed in the presence of two 
 witnesses, if such assignment be approved of, in writing, by any 
 such magistrate, and such approbation be algo endorsed on the 
 contract. (2 E. S. 156, § 14.) 
 
 No indenture or contract for the service of any apprentice is 
 valid as against the pei'son whose services may be claimed, un- 
 less made in the manner above prescribed, (id. 158, § 26.) 
 
 It is the duty of county superintendents and overseers of the 
 poor, to take care that the terms of the contract of sei-vice be 
 fulfilled, and that the apprentice be properly used. (id. § 27.) 
 
 The voluntary continuance of the infant in the service of the 
 assignee of his master, until he has attained his majority, is a 
 continuance of his apprenticeship with his own consent, and 
 the law will not imply a promise by the master to pay the 
 apprentice for his services. {Williams vs. Finch, 2 Barb. 208.) 
 
 If any person lawfully bound to service, wilfully absents 
 himself from such service without the leave of his fciaster, he 
 can be compelled to serve double the time of his absence, 
 unless he otherwise makes satisfaction for the loss and injury 
 sustained by his absence; but he cannot be compelled to serve 
 more than three years after the expiration of his original term 
 of sei-vice. (2 B. S. 158, § 28.) 
 
 If any such person refuses to serve according to law, or to 
 the terms of his indentures, his master may apply to any Jus- 
 tice of the Peace of the county where he resides, who is author- 
 ized, by warrant or otherwise, to send for the person so refus- 
 ing, and, if such refusal be persisted in, to commit such person, 
 by warrant, to the common jail of the county, there to remain 
 until he consents to serve according to law. (id. § 29.) 
 
 On complaint being made on oath, by any master, touching 
 any misdemeanor or ill-behavior of any such .person, to any two 
 Justices of the Peace of the county, it is their duty to cause the 
 person complained of to be brought before them, and to hear, 
 examine and determine the complaint. If the complaint appears 
 to be well founded, they may, by warrant, commit the offender 
 to the common jail of the county, for any term not exceeding 
 one month, there to be employed in hard labor, and to be con- 
 fined in a room with no other person; or they may, by a certifi- 
 cate under their hands, discharge the offender from his service, 
 
704 NEW YORK JUSTICE. 
 
 and the master from all obligations to him. (2 M. 8. 159, 
 ^^ 30, 31.) 
 
 If any master is guilty of any cruelty, misusage, refusal of 
 necessary provisions or clothing, or any other violation of the 
 provisions of law in regard to masters, apprentices and ser- 
 vants, or of the terms of the indentures, towards any such 
 person sp bound to service, such person may make complaint 
 to any two Justices of the Peace of the county, who must sum- 
 mon the parties before them, and examine into, hear and deter- 
 mine the complaint, and, by certificate under their hands, dis- 
 charge such person from his obligation of service, {id. § 32.) 
 
 The statutory provisions just referred to in relation to ap- 
 prentices who wilfully absent themselves, or refuse to serye, or 
 are guilty of any misdemeanor or ill-behavior, and in relation 
 to masters who are guilty of any cruelty, &c., do not extend 
 to any apprentice whose master or mistress has received or is 
 entitled to receive any sum of money with him, as a compensar 
 tion for his instruction, (id. § 33.) 
 
 In cases where money was paid, or agreed to be paid, on the 
 binding out of any clerk or -apprentice, the like complaint may 
 be may by any person so bound to service, to any Justice of 
 the Peace of the county in which he resides, who must inquire 
 into the matter, and make such order and direction between 
 the master and the' person bound to service, as the equity of 
 the case' may require, (id. ^ 34.) If the difficulty cannot be 
 compounded or reconciled, the Justice must take a recogniz- 
 ance from the master for his appearance at the next Court of 
 Sessions of the county, in such sum and with such sureties as 
 he approves, (id. 160, § 35.) 
 
 The master of any person so bomid to service, where any 
 money was paid, or agreed to be paid, on such binding out, 
 may, in the same ..manner, make complaint of the misbehavior 
 of any such person, to any such Justice, who must proceed in 
 the same manner to inquire into the same; and he may take a 
 recognizance from the person bound to service, for his appear- . 
 ance at the next Court of Sessions, (id. § 37.) 
 
 Upon the death of any master, to whom any person may have 
 been bound to service, as clerk, apprentice, or otherwise, by the 
 county superintendents of the poor, or by the overseers of the 
 poor, the executors or administrators of such master mayij with , 
 
APPEBNTIGES. IfOh 
 
 the consent of the person bound to service, signified in writitig, 
 and acknowledged before a Justice of the Peace,' assign the 
 contract of such service to any other person. (1 B. S. 160, 
 §41.) 
 
 The above provisions apply to masters, mistresses, and male 
 and female guardians, apprentices and wards, (id. 161, § 43.) 
 
 If the apprentice is employed by a third persOn, without the 
 knowledge or consent of his master, the master is entitled to 
 all the earnings, whether the person who employed him did or 
 did not know that he was an apprentice. (James vs. Xe Hot/, 
 6 Johns. 274.) But, in an action for enticing away and harbor- 
 ing an apprentice, it is essential for the master to prove that the 
 defendant knew the fact of the apprenticeship. {^Stewart vs. 
 Simpson, 1 Wend. 376.) 
 
 .1 § 179. Apprentice's Indenture. 
 
 This indenture witnesseth: That C B, of the town of , 
 
 in the county of , and the State of , now aged 
 
 fourteen years, by and with the consent of A B, his father, and 
 H B, his mother, [or, mother, his father being dead, or, being 
 legally incapacitated, or, having abandoned and neglected to 
 provide for his family,] endorsed hereupon, hath voluntarily, 
 and of his own free will and accord, put and bound himself ap- 
 prentice to E F, of the to^vn of, &c., to learn the art, trade, and 
 mystery of a hatter, and, as an apprentice, to serve from this 
 date for, and during, and until the full end and term of five 
 years next ensuing, [or, until the said C B shall have attained 
 the age of twenty-one years, which will be on the day of 
 
 , in the year 18 ,] during all which time the said 
 apprentice shall serve his master faithfully, honestly, and indus- 
 triously; his secrets keep, and lawful commands everywhere 
 readily obey; and at all times protect and preserve the goods 
 and property of his said master, and not suffer or allow aily to 
 be injured or wasted. He shall not buy, sell, or traffic, with 
 his own goods, or the goods of others, nor be absent from his 
 said master's service, day or night, without leave; but in all 
 things behave himself as a faithful apprentice ought to do, dur- 
 ing the said term. , And the said master shall clothe and pro- 
 vide for the said apprentice in sickness and in health, and sup- 
 ply him with suitable food and clothing;' and shall use and 
 employ the utmost of his endeavors to teach, or cause hin;, the 
 said apprentice, to be taught or instructed, in the art, trade, or 
 mystery of a hatter; and also cause the said apprentice, Ivithin - 
 45 
 
706 NEW YORK JUSTICE. 
 
 such term, to be instructed to read and write, and in the general 
 rules of arithmetic; and at the end of the said term, give the 
 said apprentice a new bible. \If necessary, insert here: And 
 the said E F acknowledges that he has received, with the said 
 C B, from A B, his father, [or, mother,] the sum of dollars, 
 as a compensation for his instruction, as above mentioned; or. 
 And the said E F further agrees to pay to the said C B the 
 following sums of money, viz: for the first year of his service, 
 dollars; for the second year of his service, dollars; 
 
 and for every subsequent year, until the expiration of his term 
 of service, dollars; which said payments are to be made 
 
 on the first day of January in each year.] And, for the true 
 performance of all and singular the covenants and agreements 
 aforesaid, the said parties bind thetnselves, each unto the other, , 
 firmly by these presents. 
 
 In witness whereof, the parties aforesaid have hereunto set 
 their hands and seals, the day of , in the year 
 
 one thousand eight hundred and 
 
 Signed, sealed, and delivered, ^ C B. [l. s.] 
 
 in presence of \ E F. [l. s.1 
 
 GH. J 
 
 § 180. Consent by Father or Mother. 
 
 I \or we,] do hereby consent to, 'and approve of, the binding 
 of my \or our,] son, C B, as in the above [or within,] indenture 
 mentioned. Dated the day of , in the year 18 . 
 
 AB. 
 
 §J.81. Justice^s Certificate, where the Father does not give the 
 
 Consent. 
 
 I, G H, a Justice of the Peace of the town of , in the 
 
 county of , do certify, that A B, the father of the infant 
 
 named in the within indenture, is dead [or, is not in a legal 
 capacity to give his consent thereto; or, has abandoned and 
 neglected to provide for his fainilyj Dated the day of 
 
 , 18 . Gr H, Justice of the Peace. 
 
 § 182. Consent by Guardian. 
 
 1, S T, the guardian, duly appointed, of C B, the infant in 
 thei. within indenture named, do certify, that the father and 
 mother of the said C B are dead, [or, that the father of the said 
 C B is dead, and that the mother of the said C B refuses her 
 consent to the said indenture of apprenticeship, or, is not^n 
 legal capacity to give her consent to the said indenture of ap- 
 
APPRENTICES. 707 
 
 prenticeship;] and that I do hereby consent, as his guardian, 
 that he, the said C B, may bind himself in and by the said 
 indenture. Dated the day of , 18 . 
 
 S T, Guardian of the said C B. 
 
 § 183. Consent by the Overseers of the Poor, or two Justices of 
 the Peace of the town, or the County Judge of the 
 county where the Infant resides. 
 
 • We, the undersigned. Overseers of the Poor of the town of 
 , \or, two Justices of the Peace of the town of , 
 
 or, I the undersigned County Judge-of county,] where 
 
 the within named C B resides, do certify, that the said C B has 
 no parent living, \or, no parent in a legal capacity to give con- 
 sent to the within indenture; or, no father living, and that his 
 mother is not in a legal capacity to give consent to the within 
 indenture,] and that he has no guardian, and that we, the said 
 Overseers, [or. Justices; or, I, the said Judge,] do consent that 
 the said C B may bind himself in and by the said indenture. 
 
 GH. 
 
 MP. 
 
 § 184. Complaint hy Master against Apprentice for refusing to 
 
 serve. 
 
 To G H, a Justice of the Peace of the County of : 
 
 I, E F, of the town of , in said county, hatter, here- 
 
 by make complaint to you, that C B, an apprentice lawfully 
 bound to seiwe me, the said E F, whose tei-m of service is still 
 unexpired, and with whom I have neither received, nor am en- 
 titled to receive any sum of money as a compensation for his 
 instruction, refuses to serve me, as by law and the terms of hi^ 
 indenture of apprenticeship he is required. 
 
 Dated the day of , 18 . E F. 
 
 County, ss: 
 
 E F, the person named in the foregoing complaint, being 
 duly sworn, deposes and says, that the foregoing complaint, and 
 the facts and circumstances stated and set forth therein, are true. 
 
 Sworn to before me, this > E. F. 
 
 day' of , 18 . 3 
 
 G H, Justice of the Peace. 
 
 ^ 185. Warrant on the foregoing Complaint. 
 
 County, ss: 
 To any Constable of said County, greeting: 
 
 Whereas complaint has been made to me, G H, one of the 
 Justices of the Peace of said county, upon the oath of E F, of 
 
708 NEW TOBK JUSTICE. 
 
 , in said county, hatter, that C B, an apprentice lawfully 
 bound to serve the said E F, whose term of service is still unex- 
 pired, and with whom the said E F has neither received, nor is 
 entitled to receive, any sum of money as a compensation for his 
 instruction, refuses to serve the said E F, as by law and the 
 terms of his indenture of apprenticeship he is required: Now, 
 therefore, you are commanded, in the name of the people of the 
 State of New York, forthwith to apprehend the said C B, and 
 bring him before me at my ofSce in , to answer to the 
 
 said E F, and to be dealt with according to law. 
 
 Given under my hand, this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 § 186. Oommitment of an Aj>pr entice refusing to serve. 
 
 County, ss; 
 To any Constable of said county, greeting: 
 
 "Whereas complaint on oath was made to me, the undersigned, 
 G H, a Justice of the Peace of said county, by E F, of , 
 
 in said county, hatter, that C B, an apprentice lawfully bound 
 to serve the said E F, whose term of service was still unexpired, 
 and with whom the said E F had neither received, nor was en- 
 titled to receive, any sum of money as a compensation for his 
 instruction, refused to serve the said E F, as by law and the 
 terms of his indenture of apprenticeship he was required; And 
 whereas the saifi C B, by virtue of my warrant thereupon issued, 
 has been brought before me to be dealt with according to law; 
 And whereas, after due proof before me of the facts as above 
 stated and set forth, the said C B still persis)ts in such refusal to 
 serve the saidE F: Now, therefore, jow. are hereby commanded, 
 in the name of the people of the State of New York, to take 
 and convey the said C B to the common jail of said counfy, and 
 deliver him to the keeper thereof, who is commanded to receive 
 the said C B into the said common jail, there to remain until he 
 shall consent to serve the said E F, according to law. 
 
 Given, &c., [as in § 185. J 
 
 § 187. Complaint to two Justices concerning any Misdemeanor 
 or III Behavior of an Apprentice. 
 
 To G H and S T, Esquires, Justices of the Peace of the county 
 
 of : 
 
 I, E F, of the town of , in said county, hatter, hereby 
 
 make complaint to you, that C B, an apprentice lawfully bound 
 to serve me, the said E F, whose term of service is still unex- 
 pired, and with whom I have neither received, nor am entitled 
 to receive, any sum of money, as a compensation for his instruc- 
 
APPRENTICES. 709 
 
 tioQ, ba^s been guilty of misdemeanors and ill behavior toward 
 me, the said E F, as follows, viz: [describe the particulars of the 
 offenoe^^ E F. 
 
 County, ss: 
 E F, the person named in the foregoingfcomplaint, being duly 
 sworn, &c., \as in § 184.] 
 
 § 188. Warrant on the foregoiny Complaint. 
 
 County, ss: 
 To any Constable of said county, greeting: 
 
 Whereas complaint has been made to us, the undersigned. 
 Justices of the Peace in and for the said county, upon the oath 
 of E F, of , in said county, hatter, that C B, an apprentice 
 
 lawfully bound to serve the said E F, whose term of service is 
 still unexpired, and with whom the said E F has neither received 
 nor is entitled to receive, any sum of money as a compensation 
 for his instruction, has been guilty of misdemeanors and ill be- 
 havior towards him, the said E F, as follows, viz: \give the par- 
 ticulars, as in the complaint :'\ Now, therefore, you are hereby 
 commanded, in the name of the people of the State of New 
 York, forthwith to apprehend the said C B, and bring him 
 before us, at the office of G H, in the town of , that we 
 
 may hear, examine into, and determine the said complaint, and 
 deal with the said C B according to law. 
 
 Given under our hands, this day of , 18 . 
 
 GH, Justice of the Peace. 
 
 S T, Justice of the Peace. 
 
 § 189. Commitment of an Apprentice on the foregoing Comr 
 
 plaint. 
 County, ss: 
 To any Constable of said county, greeting: ^ 
 
 Whereas complaint on oath was made to us, G H and S T, 
 Justices of the Peace in and for the said county, by E F, of 
 , in said county, hatter, that C B, an apprentice lawfully 
 bound to serve the said E F, whose term of service was still 
 unexpired, and with whom the said E F had neither received 
 nor was entitled to receive, any sum of money as a compensa- 
 tiok for his instruction, had been guilty of misdemeanors and 
 ill behavior toward him, the said E F, as follows, viz: \as in 
 the complaint:^ And whereas the said C B, by virtue of our 
 warrant thereupon issued, has been brought before us, and, 
 upOn due examination of the proofs and allegations of the par- 
 ties, it satisfactorily appears to us, that the said C B is guilty 
 
710 NEW YORK JUSTICE. 
 
 of the premises charged against him, as aforesaid:* Now, there- 
 fore, you are hereby commanded, in the name of the people 
 of the State of New York, to take and convey the said C B to 
 the common jail of said county, and deliver him to the keeper 
 thereof, who is commanded to receive the said C B into the 
 said, common jail, th%re to be employed in hard labor, and to 
 be confined in a room with no other person, for the term of 
 [not exceeding one month.] 
 Given, &c., [as in § 188.] 
 
 § 190. Discharge of ihe Apprentice from his Service, and of the 
 Master from his Obligations. 
 
 County, ss: 
 
 Whereas complaint on oath was made to us, &c., [as in § 189 
 to the *, and then add:] Now, therefore, we do hereby discharge 
 tlie said C B from the service of the said E F, and the said E F 
 from all and every of his obligations to the said C B, incurred 
 under and by virtue of the indentures of apprenticeship of th6 
 said C B. 
 
 Given. &c., [as in § 188.] 
 
 § 191. Complaint iy an Apprentice to two Justices, for the 
 Cruelty or Mimsage of his Master, or his r^usal to 
 furnish him with necessary Provisions or Clothing. 
 
 To G H and S T, Esquires, two of the Justices of the Peace 
 
 of the county of : 
 
 I, C B, apprentice to E F, of the town of , in said 
 
 county, hatter, hereby make complaint to you, that the said 
 E F, to whom I am lawfully bound by indentures of appren- 
 ^ticeship, the term of service under which has not yet expired, 
 and who has neither received, nor is entitled to receive, any 
 sum of money as a compensation for my instruction, has cruelly 
 beat, bruised, and wounded me, the said C B, being his appren- 
 tice, as aforesaid; [or, has misused and ill-treated me, the said 
 C B, being his apprentice, as aforesaid, by refusing to furnish 
 me with necessary provisions and clothing;] to wit, at , 
 
 aforesaid, on the day. of , 18 . C B. 
 
 County, ss: 
 C B, the person named in the foregoing complaint, being 
 duly sworn, &c., [as in \ 184.] 
 
 § 192. Summons on the foregoing Complaint. 
 
 County, ss: 
 To any Constable of the said county, greeting: 
 
 Whereas eomplaint has been made to ua, the undersigned 
 
APPRENTICES. 711 
 
 Justices of the Peace in and for the said county, uipon the oath 
 of C B, apprentice to E F, of , in said county, hatter, 
 
 that the said E F, to whom the said C B is lawfully bound by 
 indentures of apprenticeship, the term of service under which 
 has not yet expired, and who has neither received, nor is enti- 
 titled to receive, any sum of money as a compensation for the 
 instruction of the said C B, has cruelly beat, &c., [as in § 191, 
 substituting^ him /or me:] Now, therefore, you are hereby com- 
 manded, in the name of the people of the State of New York, 
 to summon the said E F and C B to appear before us, at the 
 office of G H, in the town of , on the day of 
 
 instant, at two o'clock in the afternoon of that day, 
 that we may examine into, hear and determine the said com- 
 plaint. 
 
 Given, &c., [as in § 188.] 
 
 § 193. Discharge of Apprentice, on the foregoing Complaint. 
 County, ss: 
 
 Whereas complaint on oath was made to us, the undersigned, 
 G H and S T, Justices of the Peace in and for said county, by 
 C B, apprentice to E F, of , in said county, hatter, that 
 
 the said E F, to whom the said C B was lawfully bound by in- 
 dentures of apprenticeship, the term of service under which was 
 still unexpired, and who had neither received, nor was entitled 
 to receive, any sum of money as a compensation for the instruc- 
 tion of the said C B, had cruelly beat, &c., [as in § 192;] And 
 whereas, the said E P,'by virtue of our summons thereupon 
 issued, has appeared before us, and, upon due examination of 
 the proofs and allegations of the parties, it satisfactorily appears 
 to us, that the said E F is guilty of the premises so charged 
 against him, as aforesaid: Now, therefore, we do hereby dis- 
 charge the said C B from the service of the said E F, anything 
 in his indentures of apprenticeship, as aforesaid, to the contrary, 
 notwithstanding. 
 
 Given, &c., [as in § 188.] 
 
 § 194. Complaint by an Apprentice against his Master, where 
 
 Money has been paid, or agreed to be paid. 
 To G H, a Justice of the Peace of the county of : 
 
 I, C B, apprentice to E F, of the town of , in said 
 
 county, hatter, hereby make complaint to you, that the said E F, 
 to whom I am lawfully bound by indentures of apprenticeship, 
 the term of service under which has not yet expired, and who 
 has received the sum of fifty dollars, [or, who is entitled to re- 
 ceive the sum of fifty dollars, on the day of , 18 ,1 
 
712i NEW YORK JWTICE. 
 
 as a cojnpeiMption for my instruction, has cruelly beat, bruised, 
 and wounded me, the said C B, being his apprentice, as afore- 
 said, [or, has misused and ill-treated mq, <fec., as in ^ 191.] 
 
 County, ss: 
 C B, the person named in the foregoing complaint, being duly 
 sworn, &c.,'[as in § 184.] 
 
 § 195. Summons on the foregoing Complaint. 
 
 County, ss: 
 To any Constable of said county, greeting: 
 
 "Whereas complaint has been made to me, one of the Justices 
 of the Peace in and for the sa,id county, upon the oath of C B, 
 apprentice to F F, of , in said county, hatter, that the said 
 
 E F, to whom the said B is lawfully bou^d by indentures of 
 apprenticeship, the term of service under which has not yet ex- 
 pired, and who has received the sum of fifty dollars, [or, as in 
 \ 194,] as a compensation for the instruction of the said C B, has 
 crufilly beat, bruised, and wounded him, the said C B, being his 
 apprentice, as aforesaid, [or, has misused and ill-treated 'him, 
 &c., as in \ 191:] Now, therefore, you are hereby commanded, 
 in the name of' the people of the State of New York, to summon 
 the said E F and C B to. appear before me, at my office, in the 
 town of , in said county, on the day of instant, 
 
 at two o'clock in the afternoon of that day, that I may inquire 
 into the matter and make such order and direction between the 
 said E F and the said C B as the equity of the case may require. 
 
 Given, &c., \as in \ 185.] 
 
 \ 196. Recognizance of Master and Surety, on the foregoing 
 
 Complaint. 
 State of New York, > 
 County, ) 
 
 We, E F and L M, of , in said county, acknowledge 
 
 ourselves to be severally indebted to the People of the State of 
 New York, that is to say: The said E F in the sum of 
 dollars, and the said L M in the sum of dollars, to be 
 
 well and truly paid, if default shall be made in the condition 
 following:* 
 
 Whereas complaint on oath was made to the undersigned 
 G H, a Justice of the Peace of the said county, by C B, 9,n ap- 
 prentice, against E F, hia master, above named, and the parties 
 were summoned and app* red before the said Justice, and, after 
 due examination into the premises, the difficulty between the 
 said parties could not be compounded or reconciled: Now, there- 
 fore, the conditio!} of this recognizance is i?uch, that if the said 
 
APPRENTICES. 713 
 
 E F shall personally appear at the next Court of Sessions, to be 
 held in and for said county, then and there to answer to the 
 complaint aforesaid, and to do and receive what shall by the 
 Court be then and there enjoined upon him, and shall not depart 
 the Court without leave, then this r.ecognizance shall be void, 
 otherwise, of force. 
 
 Taken, subscribed, and acknowledged, ? E F. [l. s.J 
 
 the day of , 18 , before me, I L M. [l. s.J 
 
 G H, Justice of the Peace. 
 
 § 197. Complaint by Mooter against Apprentice refusing to serve, 
 whei^e Money ha^ been paid, or agreed! to be paid. 
 
 To G H, a Justice of the Peace of the county of : 
 
 I, E F, of the town of , in said county, hatter, hereby 
 
 make complaint to you, that C B, an apprentice lawfully bound 
 to serve me, the said E F, whose term of service is still unexpired, 
 and with whom"! have received the sum of dollars, \or, 
 
 with whom I am entitled to receive the sum of dollars, on 
 
 the day of , 18 ,] as a compensation for his in- 
 
 struction, refuses to serve me, as by law and the terms of his 
 ■ indenture of apprenticeship he is required. Dated, &c., [as in 
 § 184, with the verification.^ 
 
 \ 198. Summons on the foregoing Complaint. 
 
 County, ss: 
 
 To any constable in said county, greeting: 
 
 Whereas complaint has been made to me, G H, one of the 
 Justices of the Peace of said county, upon the oath of E F, of 
 , in said county, hatter, that C B, an apprentice law- 
 fully bound to serve the said E F, whose term of service is still 
 unexpired, and with whom the said E F hath received the sum 
 of dollars, [or, with whom the said E F is entitled to 
 
 receive the sum of dollars, on the day of , 
 
 18 ,] as a compensation for his instruction, refuses to serve 
 the said E F, as by law and the terms of his indenture of ap- 
 prenticeship he is required: Now, therefore, you are hereby 
 commanded, &c., [as in § 195.] 
 
 ^ 199. Recognizance of Apprentice and Surety on the foregoing 
 
 Complaint. 
 State of New York, 
 County, 
 We, C B and E B, of, &c., [as in § 196 to the*, and then 
 addi\ Whereas, complaint on oath was made to the undersigned 
 
 ^' } ss: 
 
714 NEW YOEK JUSTICE. 
 
 G H, a Justice of the Peace of the said county, by E F, the 
 master, against C B, his apprentice above named, and the par- 
 ties were summoned, &c., [as in § 196 to the end, substitvting 
 the name of the apprentice for that of the master J] 
 
 Fees. 
 
 The fees allowed by law for services under the statute re- 
 lating to masters and apprentices, are as follows: 
 
 To Justices.] (2 R. S. 637, §§ 28, 29.) Drawing, copying 
 and certifying a recognizance, twenty-five cents; 
 
 A warrant of commitment, nineteen cents; 
 
 Taking and certifying the acknowledgment of any instrument 
 which is required to be acknowledged before a Justice, twenty- 
 five cents; 
 
 For administering any oath or affirmation, twelve and a half 
 cents; 
 
 For issuing a summons, twenty-five cents; 
 
 For a warrant of arrest, nineteen cents; 
 
 To Constables.] {id. 647, ^ 40.) Serving a summons, twelve 
 and a half cents; 
 
 Mileage, going only, for each mile, six cents; 
 
 Arresting and committing any person pursuant to process, 
 fifty cents; 
 
 Mileage, going only, for each mile, six cents. 
 
 CHAPTER IV. 
 
 OF BASTAEDS. 
 
 « 
 
 Evert child is deemed a bastard, within the meaninff of this 
 
 Chapter, who is begotten and born, 1. Out of lawful matri- 
 mony; 2. While the husband of its mother continued absent out 
 of this State for one whole year previous to such birth, separate 
 from its mother, and leaving her during that time continuing 
 and residing in this State; 3. During the separation of its 
 mother from her husband, pursuant to a decree of any Court of 
 competent authority. (1 Ji. S. 641, § 1.) 
 
BASTARDS. 715 
 
 The statute provides, that if any woman shall be delivered 
 of a bastard child, which shall be chargeable, or likely to be- 
 come chargeable, to any county, city or town, or shall be preg- 
 nant of a child likely to be born a bastard, and to become 
 chargeable to any county, city or town, some one of the super- 
 intendents of the poor of the county, or of the overseers of the 
 poor of the town or city, where such woman shall be, must 
 apply to some Justice of the Peace of the same county to make 
 inquiry into the facts and circumstances of the case. (1 H. S. 
 642, § 5.) 
 
 § 200. Application of a Superintendent or Overseer of the Poor, 
 in a case of Bastardy. 
 
 County, ss: 
 To G H, Esq., a Justice of the Peace of said county: 
 
 E B, having been delivered of a bastard, which is chargeable 
 \or, likely to become chargeable] to the said county \or, to the 
 town of , in said county; or, E B, being pregnant of a 
 
 child likely to be born a bastard, and to become chargeable, 
 &c.,] the undersigned E F, a Superintendent of the Poor of the 
 said county, [or, the Overseer of the Poor of said town,] pur- 
 suant to the statute in such case made and provided, applies to 
 you to make inquiry into the facts and circumstances of the case. 
 
 Dated this day of , 18 . E F. 
 
 The Justice so applied to must, by an examination of the 
 woman on oath, and upon such other testimony as may be offer- 
 ed, ascertain the father of the bastard, or of the child likely to 
 be born a bastard; and must then issue his warrant, directed to 
 any constable of the county, commanding him forthwith to 
 apprehend the reputed father, and bring him before the Justice 
 issuing the warrant, for the purpose of having an adjudication 
 respecting the filiation of such bastard, or of such child likely 
 to be born a bastard. (1 R. S. 642, § 6') The warrant should 
 be under seal. (People ys.ITolcomb, et al. 3 Park Or. 664A 
 
 § 201. Examination hfore Birth. 
 
 County, ss: 
 E B, of the town of , in said county, being duly sworn, 
 
 says, that she is now with child, and that the child of which she 
 is pregnant is likely to be born a bastard, and to become charge- 
 
716 NEW YORK. JUSTICE. 
 
 able to said county; [or, to the town of , in said county;] 
 
 and that C D. of , is the father of said child. 
 
 Subscribed and sworix, this ? E B. 
 
 day of , 18 , before me, J 
 
 . G H, Justice. 
 
 § 202. Examination after Birth. 
 
 County, ss: 
 E B, of the town of , in said county, being duly sworn, 
 
 says, that on the day of last, she was delivered of a 
 
 bastard child, which is chargeable [or, likely to become charge- 
 able] to said county; [or, to the town of , in said county;] 
 and that C D, of, &c., [as in \ 201, to the end.] 
 
 § 203. Warrant to apprehend Reputed Faih&r. 
 
 County, ss: 
 To any Constable of said county, greeting: 
 
 Whereas, E B, of , in said county, upon her examina- 
 
 tion on oath, before me, the undersigned, a Justice of the Peace 
 of said county, this day had, did declare that, &c., [as in the 
 examination •] And whereas, E E, Overseer of the Poor of said 
 town, [or, one of the Superintendents of, &c., as the case may 
 5e,] in order to indemnify the said town, [or, county,] in the 
 premises, has applied to' me to make inquiry into the facts and 
 circumstances of the case: Yqu are therefore hereby command- 
 ed, in the name of the people in the State of New York, forth- 
 with to apprehend the said C D, and to bring him before me, 
 at my office in , aforesaid, for the purpose of having an 
 
 adjudication respecting the filiation of such bastard child, [or, 
 of such child likely to be bom a bastard.] 
 
 Witness my hand, this day of ' , 18 
 
 G H, Justice of the Peace. 
 
 If the person charged as the reputed father resides or is in 
 
 any other county of the State than that in which the warrant 
 
 issued, the Justice issuing the same must direct, in wiiting, upon 
 
 the warrant, the sum in which any bond shall be taken from the 
 
 iPeW,i. ^ cliY^ed,. ^l^. S- 64^, J f .) ,, , , ^ , ^, ,. _ _., . ^ 
 
 § 204. Endorsement on a Warrant of Arrest to be executed in a 
 Foreign County. 
 
 I, the within named Justice of the Peace, direct that the penal 
 sum in which any bond shall be taken of the within named C 
 D, shall be dollars. G H, Justice. 
 
BASTARDS. 717 
 
 ■ The officer having the warrant must carry it to some Justice 
 of the city or county wherein the person charged as the reputed 
 father resides; and the Justice to whom it is presented, must, 
 on proof being made to him of the hand-writing of the Justice 
 who issued it, endorse his name thereon, with an authority to 
 arrest such person in the county where the Justice so endorsing 
 resides. (1 R. 8. 643, § 7.) 
 
 \ 205. Endorsement hy a Justice in a Foreign County. 
 
 County, ss: 
 The within warrant, with the endoi'sement made thereon by 
 . the Justice by whom it was issued, of the sum in which any bond 
 is to be taken, having been presented to me, the undersigned, 
 I J, Justice of tlie Peace of said counfy, and proof having been 
 made to me of the hand-writing of the Justice who issued the 
 said warrant, the arrest of the said C D is hereby authorized, 
 if he can be found within the county of 
 
 Dated, '&c., [as in § 200.] I J, Justice. 
 
 This endorsement is a sufficient authority to the person bring- 
 ing the warrant, and to all others to whom it was originally 
 directed, to execute it in the county where it is endorsed. 
 (1 R. 8. 643, §'7.) 
 
 The reputed father, when apprehended, must be carried 
 before the Justice who endorsed the warrant, or some, other 
 Justice of the same county, who may take from him a bond to 
 the people of the State, with good and sufficient sureties, in the 
 sum so directed on the warrant, con^ditioned to indemnify the 
 county, town or city where the bastard shall have been born, 
 or where the woman likely to have the bastard shall be, and 
 every other county, town, or city which may have incurred any 
 expense, or may be put to any expense, for the support of 
 such child, or of its mother during her confinement and recov- 
 ery therefi-om, against all such expenses, and to pay the costs 
 of apprehending such father, and of any order of filiation that 
 may be made. {id. § 8.) Or, the Justice may take from the 
 reputed father a bond as aforesaid, in the sum directed on the 
 warrant, with good and sufficient sureties, conditioned that such 
 father will appear at the next Court of Sessions to be held in 
 
718 NEW YORK JUSTICE. 
 
 the county where the warrant was originally issued, and not 
 depart said Court without its leave. (1 R. S. 643, § 8.) 
 
 A bond conditioned to indemnify the county, or to appear at 
 the next Court of Sessions, although in the alternative, is valid, 
 and may be enforced: {People vs. Tilton, 13 Wend. 597;) but 
 if the bond, in addition to the conditions required by statute, 
 contains other conditions, imposing further obligations on the 
 obligors, it is void. {Peojjle ys. Meighan. 1 Hill, 298.) 
 
 § 206. Bond to be taken by the Justice before whom the reputed 
 Father is carried. 
 
 Know all men by these presents, that we, C D and R F, of 
 , in the county of , are held and firmly boun* 
 
 mito the People of the State of New York, in the sum of 
 . dollars, for which payment, well and truly to be made, 
 we bind ourselves, our heirs, executors and administrators, 
 jointly and severally, firmly by these presents. Sealed with 
 our seals, and dated this day of , 1853.* 
 
 Whereas, the said C D has been this day brought before the 
 undersigned, I J, one of the Justices of the Peace of the county 
 of , by virtue of a warrant issued by G H, one of the 
 
 Justices of the Peace of the county of , whereon my 
 
 name [or, the name of O M, one of the Justices of the Peace 
 of the said county of ,] is endorsed, with an authority 
 
 to arrest the sMd C D in said county of ; in which 
 
 warrant it is recited, that E B, of , in said county of 
 
 , upon her examination on oath, before the said G H, 
 Justice, did declare herself pregnant of a child, which is likely 
 to be born a bastard, and to become chargeable [or, did declare 
 that she was, on the day of last, at 
 
 aforesaid, delivered of a bastard child, which is chargeable] to 
 said town [or, county:] And whereas, upon the said warrant is 
 endorsed the direction of the said G H, that the penal sum in 
 which any bond shall be taken from the said C D, shall be 
 $ : Now, the condition of this obligation is such, that if 
 
 the said C D shall indemnify the said town [or, county] of 
 , and every other county, town, or city which may 
 have incurred any expense, or may be put to any expense, for , 
 the support of such child, or of its mother during her confine- 
 ment and recovery therefrom, against all such, expenses, and 
 shall pay the costs of apprehending him, the said C D, and of 
 any order of filiation that may be made in this matter, [or, 
 if the said C D shall apjiear at the next Court of Sessions to 
 be holdeu in the said county of , and shall not depart 
 
BASTAEDS. 719 
 
 -. 3 
 
 the said Court without its leave,] then this obligation to be 
 void; otherwise of force. 
 
 Sealed and delivered in the presence of, ? CD. [l. s.j • 
 
 and the security approved by me, \ R F. [l. s.] 
 
 I J, Justice, &c. 
 
 If the reputed father gives the bond with either of the con- 
 ditions required by the statute, then the Justice taldng it must 
 discharge him from arrest, and endorse on the warrant a cer- 
 tificate to that effect. He must then deliver the warrant and 
 the bond so taken by him, to the constable who brought the 
 warrant, by whom they must be delivered to the Justice who 
 granted the warrant, who must proceed thereupon in the same 
 manner as if such bond had been taken by him. (1 R. S. 643, ^ 9.) 
 
 § 207. Certificate to he endorsed on Warrant 
 
 Coujaty, ss: 
 I certify that the within named C D, who was brought before 
 me, I J, one of the Justices of the Peace of the county of 
 , , by virtue of the within named warrant, was dis- 
 charged from arrest by me, upon his executing a btnd pursu- 
 ant to statute. I J, Justice. 
 Dated, &c., [as in § 200. j 
 
 If the person apprehended does not execute the bond so re- 
 quired, with one or the other of the conditions aforesaid, to the 
 satisfaction of the Justice before whom he is brought, then the 
 constable or other officer having the warrant must take him 
 before the Justice who originally issued the warrant. (1 S. S. 
 644, § 10.) When he is brought before such Justice, whether 
 he was arrested in the county of that Justice, or in some other 
 county, such Justice must immediately call to his aid some other 
 Justice of tlie same county, and they two must proceed, without 
 any unnecessary delay, to make an examination of the matter. 
 They must examine the mother of the child, or the woman who 
 is pregnant, on oath, in presence of the person so charged or 
 apprehended, touching the father of the child, and must hear 
 any proofs that may be offered in relation thereto; and, on the 
 application of the person so charged, or of the persons appear- 
 ing in behalf of the public, either of the Justices may issue a 
 subpoena to compel the attendance of witnesses before them, 
 which may be enforced, and the witnesses may be compelled to 
 
720 NEW YORK JUSTICE. 
 
 appear and testify, in the same manner as in any civil action 
 before a Justice of the Peace. (1 R. 8. 644, § 11; ante, p. 272.) 
 Where the mother of the alleged bastard is a married woman, 
 although she is from the necessity of the case a competent witness 
 to prove the illicit intercourse, and who is in fact the father of the 
 child, she is not competent to establish the non-access of her 
 husband, nor his absence from the State, nor any other fact 
 which can be proved from other testimony; nor can an order of 
 filiation be made in such a case, upon mere hearsay evidence of 
 the continued absence of the husband from the State. {People 
 vs. Overseers of Ontario, 15 Barb. 286.) 
 
 \ 208. Subpoena in a case of Bastardy. 
 
 County, ss: 
 To R F, O P, &c,, greeting: 
 
 You are hereby commanded, in the name of the^ People of the 
 State of New York, personally to appear before G H, and the 
 undersigned S T, two of the Justices of the Peace of said 
 county, forthwith, \or, as the case may 5e,] at the office of the 
 said S T, in , in said county, to testify what you do 
 
 know touching the father of a bastard child, wherewith E B 
 alleges she is now pregnant, \or, which was lately born of E B.] 
 
 Witness, &s., \as in § 203. j 
 
 If the Justices are not prepared to proceed, or the person 
 charged requires delay, and gives sufficient reasons therefor, 
 they may adjoiirn such examination for any time not exceeding 
 six weeks, and must take from such person a bond, with sure- 
 ties, for his appearance before them at such adjourned day, with 
 a penalty in such a sum as they shall deem a full indemnity for 
 the expense of supporting the bastard and its mother. (1 jR. 8. 
 644, ^§ 12, 16.) Where the bond has been. given for his appear- 
 ance, he must continue to appear from day to day, should there 
 be several adjournments. {^People vs. Jayne, 27 Barb. 58.) 
 
 \ 209. Bond of Adjournment. 
 
 Know all men, &c., \as in § 206, to the *, and then add/] 
 Whereas the above named C D has been this day brought 
 before G H and S T, two of the Justices of the Peace of said 
 county, charged upon the bath of E B, of aforesaid, with 
 
 being the father of a bastard child, with which the said E B 
 alleges she is pregnant, [or, of a bastard child lately born of the 
 
BASTA'RDS. 721 
 
 §ai4 E B;] And whereas, at the request of the said C D, and 
 ^or sufficient reasons given, the said Justices have determined to 
 adjourn the examination of the said matter, upon the execution 
 of this bond, until the day of instant, at o'clock 
 
 in the noon, at the office of the said G H, in : Now, 
 
 the condition of this obligation is such, that if the said C D shall 
 personally appear' before the said Justices, at the time and place 
 last aforesaid, and not depart therefrom without leave, then this 
 obligation to be void; otherwise, of force. C D. [l. s.l 
 
 E F. [l. s.J 
 Sealed and delivered in the presence of us, by whom the 
 sureties and penalty are approved. G H, 
 
 S T, 
 Justices of the Peace, 
 
 The bond to be given on adjournment only requires the de- 
 fendant to appear before the Justices before whom he was 
 examined, and no others. {People vs. Boardman, 24 How. 
 512.) 
 
 The Justices naVist determine who is the father of the bastard, 
 or of the child likely to be boi"n a bastard, and must jjroceed as 
 follows: \. If they determine that the person charged and appre- 
 hended is not the father of the bastard or child, they must forth- 
 with discharge him; 2. If they determine that he is such father, 
 they must make an order of filiation, in which they must specify 
 the, sum to be paid weekly, or othenyise, by the putative father, 
 for the support of the bastard, or of the child likely to be born 
 a bastard; 3. If the mother of the child be in indigent circum- 
 stances, they must determine the sum to be paid by the putative 
 father, for the sustenance of the mother during her confinement 
 and recovery; 4. They must certify the reasonable costs of 
 apprehending and securing the putative father, and of the order 
 of filiation; 5. They must reduce their proceedings to writing 
 and subscribe them. (1 R. 8. 644, § 13.) An adjudication 
 thus made by two Justices in favor of the person charged with 
 being the father of a bastard child, is a bar to a second proceed- 
 ing against him respecting the same matter. {Thayer vs. Over- 
 seers of Hamilton, 5 Hill, 443.) And such order is not appeal- 
 able. {People vs. Tompkins General Sessions, 19 Wend. 154.) 
 
 § 210. Order of Filiation. 
 County, ss: 
 "Whereas, we, the undersigned, G H and S T, being two of 
 46 
 
Y22 NEW YORK JUSTICE. 
 
 the Justices of .the Peace of said county, have this day associa- 
 ted, at , in said county, upon the application of E F, 
 Overseer of the Poor of the town of ' , [or, a Superintend- 
 ent of the Poor of said county,] for the purpose of making an 
 examination and determination touching, a certain bastard child, 
 lately born in said town, of the body of E B, [or, of a certain 
 child wherewith E B is said to be pregnant, and which, when 
 born, will be a bastard,] and chargeable [or, likely to become 
 chargeable] to sa^id town, [or, county,] and of which child C D 
 was alleged to be the -father; And whereas we have duly ex- 
 amined the said E B on oath, in the presence of the said C D, 
 touching the father of said child, and have also heard the proofs ' 
 and allegations to us offered in relation thereto, as well on the 
 part and behalf of thfe said Overseer, [or. Superintendent,] as 
 of theJ* said C D; And whereas it appears that the said E B was, 
 on the day of last, delivered of a bastard child in 
 said town, [or, that the said E B is now pregnant of a child, 
 which, when born, will be a bastard,] and which is chargeable 
 [or, likely to become chargeable] to said town, [or, county,] and 
 that the said C D is the father of said child: We do, therefore, 
 adjudge him, the said C D, to be the father of said bastard child; 
 And further, we do hereby order that the said C D pay to the 
 Overseer of the Poor of the said town of , [or, to the 
 Superintendents of the Poor of said county,] for the support of 
 the said child, the weekly sum of one dollar, so long as the said 
 child shall continue chargeable to said town, [or, county;] And 
 inasmuch as it appears to us, and we find, that the said E ^^ is 
 in indigent circumstances, we determine and order that the said 
 C D pay to the said Overseer of the Poor, [or, Suj)eriiitendents,] 
 for the sustenance of the said E B, during her confinement and 
 recovery therefrom, the sum of twenty dollars. And we do 
 hereby certify the reasonable costs of apprehending and securuig 
 the said father, and of this order of filiation, at the sum of 
 dollars. 
 
 Given under our brands, at aforesaid, this day 
 
 of , 18 . ■ G H, 
 
 S T, Justices, &c. 
 
 An order of filiation, legally made, cannot ^afterwards be 
 vacated by two other Justices. (Carpenter vs. W7dtman, 15 
 Johns. 208.) 
 
 The person adjudged to be the reputed father, must, upon 
 notice of the order, immediately pay the amount certified as the 
 costs of his apprehension, and of the order of filiation. (1 B. 
 iS, 64:5, § 14.) He must also enter into a bond to the People 
 
BASTARDS. 723 
 
 of this State, in such sum as the Justices shall direct, with good 
 and sufficient sureties, to be approved by them, with one or the 
 other of the following conditions: 1. That he will pay weekly, 
 or otherwise, as shall have been ordered, such sum for the sup- 
 port of the child, and for the sustenance of the mother, as shall 
 have been ordered, or shall at any time thereafter be ordered 
 by the Court of Sessions of the same county; and that he will 
 fully and amply incjemnify the county and town, or city, where 
 the bastard Was born, or where the woman likely to have such 
 bastard shall be, and every other county, town or city, which 
 may have incurred any expense, or may be put to any expense 
 ' for the support of such child, or of its mother during her con- 
 finement and recovery therefrom, against all such expenses; or, 
 2. That he will appear at the next Court of Sessions of said 
 county, and not depart the said Court without its leave. (1 R. 
 S. 645, § 14.) 
 
 The sureties in an indemnity bond, conditioned to indemnify 
 the town at all times thereafter, will not be discharged when the 
 infant attains the age of twenty-one years; they are liable as 
 long as the child or man continues chargeable to the town. 
 {Falls vs. JBelknajp, 1 Johns. 486.) The mother of a bastard 
 child three or four years old, is entitled to its custody, and the 
 putative father and his surety in a bond given for the mainte- 
 nance of the child, cannot exonerate themselves from liability 
 by demanding the child. {Carpenter vs. Whitman, 15 Johns. 
 208.) 
 
 § 211. iBond on Order of Filiation. 
 
 Know all men, &c., [as in § 206, to the*, and then add:'\ 
 Whereas, by an order this day duly made and subscribed by 
 the undersigned. Justices of the Peace of the said county, it is 
 adjudged that the said C D, is the father of a bastard child of 
 which E B is pregnant, and which is likely to become charge- 
 able [or, of a bastard child lately born in said town, of E B, 
 and which is chargeable] to said town, \or, county;] And it was 
 thereupon ordered by the said Justices, that, &c., [recite the or- 
 der for the support of the bastard and the sustenance of the 
 mother i as in § 210:] Now, the condition of this obligation is 
 such, that, if the said C D shall pay such sums for the support 
 of the said bastard'child, and the sustenance of its mother, as 
 are ordered by the said Justices, as aforesaid, or as shall at any 
 time hereafter be ordered by the Court of Sessions of said 
 
724 NEW YORK JUSTICE. 
 
 county, and shall fully and amply indemnify the said town, [or, 
 county,] and every other county, town or city, which may have 
 incurred any expense, or may be put to any expense, for the 
 support of such child, or of its mother during her confinement 
 and recovery therefrom, against all such expenses, then this 
 obligation to be void; otherwise, of force. \If the jparty intends 
 to appeal,' instead of the foregoing, say: Now, the condition of 
 this obligation is such, that if the said C D shall personally ap- 
 pear at the next Court of Sessions of said county, and shall not 
 depart the said Court without its leave, then this obligation to 
 be void; otherwise, of force.] 
 
 Sealed, &c., [as in % 209.] C D. [l. s.] 
 
 R F. [l. s.J , 
 
 The bond should not. contain both of the above conditions, as 
 that would make it void. {Hoogland vs. Hudson, 8 How. 243.) 
 
 If the bond is executed to the satisfaction of the Justices, 
 they must discharge the putative father from arrest. If he re- 
 fuses or neglects to execute a bond, with one or the other of 
 the conditions above mentioned, or to pay the costs and charges 
 as certified in the order of filiation, he must be committed by 
 the Justices, or by one of them, to the county jail, by warrant, 
 there to remain until discharged by the Court of Sessions, or 
 until he executes the bond in the penalty required by the Jus- 
 tices, or until he pays the costs; the warrant to be varied to 
 correspond with his default. (1 R. S. 645, § 15; People vs. 
 Stowell, 2 Denio, 127.) Should the bond contain superfluous 
 provisions, it will not for that reason be void. {People vs. 
 Mitchel, 4 8andf. 466.) 
 
 If the reputed father of a bastard child, against whom an 
 order of filiation has been made, does not pay the amount cer- 
 tified for the costs of his apprehension and of the order of fili- 
 ation, the Justices may issue a warrant for his commitment, 
 even though he has given the boiid required by the statute. 
 When such bond has been given, but the costs are not paid, the 
 warrant should direct the father to be safely kept until dis- 
 charged by the Court of Sessions, or until he pays the costs. 
 {People vs. 8toioell, 2 Denio, 127.) 
 
 The penality of every bond taken for the appearance of the 
 putative father, either before Justices of the Peace, or at the 
 Court of Sessions, must, in all cases, be such a sum as shall be 
 
BASTAEDS. 725 
 
 4eeine(J a full indemnity for the expense of supporting the bast- 
 ard and its mother. (1 E. S. 645, ^ 16.) 
 t 
 § 212. Warrant to Commit Putative Father. 
 
 County, ss: 
 To any Constable of said County, greeting: 
 
 Whereas, by an order of filiation this day made by us, the 
 undersigned, G H and S T, Justices of the Peace of said county, 
 at ' , in said county, we did adjudge C D to be the 
 
 father of a bastard child, lately born in the town of , 
 
 in said county, of the body of E B, [or, of a certain child where- 
 with E B is said to be pregnant, and which, when born, will be 
 a bastard,] and chargeable, [or, likely to become chargeable,] 
 to said town, [or, county,] and did thereupon order that the 
 said C D pay, &c., [set forth the directions for the support of the 
 child and the sustenance of the mother, and the amount of costs 
 and charges required to be paid, as in the order ;^ And whereas, 
 upon the making and subscribing such order, we did require 
 the said C D immediately to pay the costs so certified, and to 
 enter into a bond to the people of this State, in the penal sum 
 of dollars, with good and sufiicient sureties, to be by 
 
 us approved, with one or the other of the conditions, which, by 
 the statute in such case made and provided, are prescribed; 
 And whereas due notice of our said order has been given to the 
 said C D, but he has wholly neglected [or, refused] to pay the 
 said costs and charges; [or, to execute a bond as aforesaid; or 
 both, as the case may 6e.'] These are, therefore, to command 
 you, in the name of the people of the State of New York, to 
 convey the said C D to the common jail of the said county, the 
 keeper whereof is hereby required to receive and detain the 
 said C D'in custody in said jail, until he shall be discharged by 
 the Court of Sessions of the said county, or shall pay the said 
 costs and charges; [or, shall execute such bond in the penalty 
 required, as aforesaid; oy both, as the case may 5e.] 
 
 Given, &c., [as in \ 210.] 
 
 During the examination, and until he is discharged by the 
 Justices, the reputed father must remain in the custody of the 
 constable who apprehended him, unless a bond shall have been 
 taken for his appearance upon any adjournment, as before spe- 
 cified. If he is committed to jail, he must be confined therein 
 without being let to bail, and is not entitled to the'5ail liberties. 
 {id. \ 17.) 
 
 When any bond, taken out of the county as aforesaid, by which 
 
726 NEW YORK JUSTICE. 
 
 the person charged shall be boun& to appear at the next Court of 
 Sessions, is returned to the Justice who issued the warrant, such 
 Justice must, in like manner, call in the aid of anothei* Justice 
 of the Peace of the same county; and the two Justices must 
 proceed, in the manner aforesaid, to determine who is the father 
 of the bastard, or of the child likely to be bom a bastard; and 
 must make an order of filiation, and prescribe the sum to be 
 paid by such putative father, for the support of the child, and 
 for the sustenance of the mother, as aforesaid; and must certify 
 the reasonable costs of apprehending the said father, and of 
 the order of filiation. (1 B. 8. 645, § 18.) Such examinatipn 
 and order may be made in the absence of the person so charged, 
 unless, before they are made, he personally requires of the Jus- 
 tice issuing the warrant, that the examination be made in his 
 presence. If he so requires, reasonable notice of the time and 
 place of the examination must be given to him; and he may 
 appear and ofiier testimony in relation to the matters to be 
 inquired into, and the same proceedings must be had as in the 
 case of his being brought before such Justice, (id. 646, § 19.) 
 In making an examination so authorized, the Justice or Jus- 
 tices may compel the mother of a bastard so chargeable, or 
 likely to become chargeable, or woman pregnant with a child 
 likely to become a bastard and to become so chargeable, to 
 testify and disclose the name of the father of such bastard or 
 child; and, in case of her refusal, may, after the expiration of one 
 month from the time of her delivery,, if she shall be sufficiently 
 recovered, commit her to the common jail of the comity, by a 
 warrant under hig. hand, or the hands of such Justices, there to 
 remain until she shall testify and disclose the name of such 
 father. The warrant must distinctly set forth the cause of com- 
 mitment, {id. § 20.) The Justices must be careful to describe 
 the person committed, by her proper name; otherwise, they 
 may be liable to an action for false imprisonment {Scott vs. 
 Sit/ and White, 4 Wend. 555.) 
 
 § 213. Warrant to commit a Mother who refuses to disclose the 
 Name Qf the Fath&t\ 
 County, ss: 
 To any Constable of said county, greeting: 
 
 Whereas we, the undersigned, G H and S T, Justices of the 
 Peace of said county, being now associated for the purpose of 
 
BASTAEDS. 727 
 
 examining into and making order for the indemnity of the town 
 of , in said county, [or, for the indemnity of said county,] 
 
 aigainst the support of a certain child, said to have been born a 
 bastard of the body of E B, and claargeable [or, likely to be- 
 come chargeable] to said town, [or, county,] upon the applica- 
 tion of E F, Oveiseer of the Poor of said town, [or, a Super- 
 intendent of the Poor of said county,] have required the said 
 E B, who is now before us, to submit to an examination on 
 oath, touching such charge, in the presence of C D, who has 
 been brought before us charged with being the father of said 
 child, and to testify and disclose the name of such father, but 
 the said E B wholly refuses so to testify and dischose; and inas- 
 much as it now appears to us, upon due proof thereof, given 
 on oath before us, that more than a month has elapsed since 
 the said E B was delivered of said child, and , that she is now 
 suiBciently recovered from her confinenement: You are there- 
 fore hereby commanded, in the name of the people of the State 
 New York, to take the said E B, and convey her to the com- 
 mon jail of the said county, the keeper whereof is required to 
 detain the said E B in his custody in said jail, until she shall 
 so testify and disclose the name of such father. 
 Given, &c., [as in § 210.] 
 
 If the mothe:^' of a bastard child, chargeable or likely to be 
 chargeable, as before declared, is possessed of any property in 
 her own right, any two Justices of the Peace of the county 
 where such mother may be, on the application of any county 
 superintendent, or overseer of the poor, must examine into the 
 matter, and, in their discretion, make order for the keeping of 
 such bastard; by charging such mother with the payment of 
 money weekly, or other sustentation, for the support of the 
 child, as they shall think meet. (1 B. 8. 646, § 21.) 
 
 ^ 214. Summons where, the Mother has Property in her own 
 
 Right. 
 County, ss: 
 To any Constable of the said county, greeting: 
 
 You are hereby required to summon E B, of , in said 
 
 county, to appear before us, the undersigned, G H and S T, Jus- 
 tices of the Peace of said county, on the day of 
 instant, at two o'clock in tHe afternoon, at the office of the 
 undersigned, G H, to show cause, if any she may have, why we 
 should not make an order for the keeping of a, bastard child, 
 'said to have been lately born of the said E B, and chargeable 
 
728 NEW YORK JtfeTICE. 
 
 [or, likely to become chai'geablej to said county, [or, town,] by 
 charging the said E B with the payment of money weekly, or 
 other sustentation, for the support of such child; E F, Overseer 
 of the Poor of the said town, [or, a Superintendent of the Poor 
 of said county,] having applied to us for that purpose. 
 Given, &c., [as in § 210.] 
 
 § 215. Order to cofnpd the Mdther to pay for the Support of the 
 
 Child. 
 County, ss: 
 
 Whereas, E F, one of the Superintendents of the Poor of 
 said coUnty, [or, Overseer of the Poor of the town of , 
 
 in said county,] has made application to us, G H and S T, two 
 of the Justices of the Peace of said county, complaining that E 
 B, of , in said county, was lately delivered at , 
 
 aforesaid, of a bastard child, which is chargeable [or, likely to 
 become chargeable,] to said county, [or, town,] and that the 
 said E B is possessed of some property in her own right, and 
 desired that we should examine into the matter, and make order 
 for the indemnity of the said county, [or, town;] And whereas, 
 upon examination into the matter of said application, and upon 
 due proof on oath before us given, it appears to us that the said 
 E B was so delivered of such child, and is possessed of some 
 property in her own right, and the said E B, though present at 
 such examination, not showing any sufficient cause to the con- 
 trary, [or, and the said E B neglecting to appear before us and 
 show cause, if any she might have, to the contrary, although 
 duly summoned so to appear,] we do therefore hereby order, 
 that the said E B pay weekly to said Superintendent, [or, to 
 said Overseer,] the sum of , for the support of said child; 
 
 [If necessary, insert here: unless the said E B shall nurse and 
 take care of said child herself] 
 
 Given, &c., [as in § 210.] ' 
 
 The statute does not seem to require that the mother of the 
 child should be summoned to appear before the Justice when 
 they examine into the matter, but it is proper she should be. 
 
 .If, after the service of such order, subscribed by the said Jus- 
 tices, upon such mother, she refuses or neglects to perform its 
 requirements, she must be committed to the common jail of the 
 county, there to remain, without bail, until she complies with 
 such order, unless she executes a bond to the people of tliis 
 State; in such sum as the Jus.tices may direct, with good and 
 sufficient sureties, to appear at the then next Court of Sessions 
 
BASTARDS. 729 
 
 in said county, and not to depart the said Court without its 
 leave. (1 B. S. 646, ^ 22.) 
 
 § 216. Wa7Tant to Commit the Mother. 
 
 County, ss: 
 Tetany Constable of the said county, greeting: 
 
 Whereas, by an order duly made by us, the undersigned, G 
 H and S T, Justices of the Peace of said county, bearing date 
 the day of instant, in relation to the keeping of 
 
 a certain bastard child, lately born in said county, of the body 
 of E B, which is chargeable [or, likely to become chargeable,] 
 to the town of , [or, said county,] we directed, &c., [as 
 
 in the order f\ which order was so made upon the application of 
 E F, Overseer of the Poor of said town, [or, a Superintendent 
 of the Poor of said county;] and after due notice to the said E 
 B, to show cause, if any sl^e might have, against the malting of 
 such order; And whereas said order, subscribed by us, has been 
 served upon the said E B, and she has not executed the bond 
 required by law for her appearance at the next Court of Ses- 
 sions in said county, and has refused [or, neglected] to perform 
 the requirements of the said order: You are therefore hereby 
 commanded, in the name of the people of the State of New 
 York, 'to take the said E B, and convey her to the common jail 
 of said county, there to remain, without bail, until she shall 
 comply with such order, or execute a bond to the people of this 
 State, in the sum of , dollars, with good and sufficient 
 
 sureties, to appear at the next Court of Sessipns in said county, 
 and not to depart the said Court without its leave. 
 
 Given, &c., [as in § 210.] 
 
 \ 217. Bond by the Mother of a Bastard to appear at the next 
 Court of Sessions. 
 
 Know all men by these presents that we, E B, R F, and L M, 
 of , in the county of , [as in § 206, to the*, and 
 
 then add:^ • 
 
 Whereas, E B, above named, was, Jjy an order made on the 
 day of ,18 , by G H and S T, two of the 
 
 Justices of the Peace of the said county, required to pay weekly 
 to E F, one of the Superintendents of the Poor of said county, 
 i [or. Overseer of the Poor of the town of , in said 
 
 county,] the sum of dollars, for the support of a bastard 
 
 child of which she was lately delivered as aforesaid, and which 
 is chargeable [or, likely to become chargeable,] to said county, 
 [or, town; Add here, if it is in the order: unless she should 
 nurse and take care of said child herself:] Now, therefore, the 
 
730 
 
 NEW TOKK JUSTICE. 
 
 condition of this obligation is such, that if the said E B shall 
 personally be and appear at the next Court of Sessions to be 
 held in the said county of , and not depart the said 
 
 Court without its leave, then this obligation to be void; other- 
 wise, of force. 
 
 Sealed, &c., [as in § 209.] E B. 
 
 EF. 
 LM. 
 
 L. S. 
 L. S. 
 L. S. 
 
 The Justices who have made any order of filiation or main- 
 tenance against 'the father or mother of any bastard, may, from 
 time to time, vary the amount therein directed to be paid, by 
 reducing the same, as circumstances may require. (1 H. S. 
 646, § 23.) 
 
 ^ 218. Prder reducing the /Sum to be paid hy the Father or 
 Mother of a Bastard Child. 
 
 County, ss: 
 To E F, Overseer of the Poor of the town of , in said 
 
 county; \or, the Superintendents of the Poor of said county:] 
 Whereas, ' by an order of filiation by us made, bearing date 
 the day of last, we did determine that C D was the 
 
 father of a certain bastard child, then lately born in afore- 
 
 said, of one E B, and did thereupon direct, among other things, 
 that the said C D should pay to you, the said Overseer, \or, 
 Suj)erintendents,] for the support of Said child, the weekly sum 
 of one dollar, so long as said child should continue chargeable 
 to said town, \or, county;] And whereas, upon the application 
 of the said C I) we have this day inquired into the circumstances 
 of the case, and heard the proofs and allegations to us submit- 
 ted in relation thereto; and it appearing to us, upon such inquiry, 
 that the circumstances in relation to said bastard cliild, render 
 it proper and expedient that the sum required to be paid by the 
 said C D, by our former order, should be reduced as hereinafter 
 expressed; and inasmuch as you the said Overseer, \or, Super- 
 intendents,] have shown before us no sufficient reason against 
 such reduction, although appearing before us, for, notified to 
 appear before us and show cause, if any you mignt have:] "\Ye 
 do, therefore, reduce the sum required to be paid by the said C 
 D, by our former order as aforesaid, to the weekly sum of 
 Given, &c., \as in \ 210.] 
 
 An appeal may, in certain cases, be taken to the Court of Ses- 
 sions of the county, by a person aggrieved, from any order or 
 determination made by any two Justices in bastardy proceed- 
 
BASTAKDS. 731 
 
 ings and notice of the appeal must be given to the Justices in 
 certain cases. (1 R. S. 647, §'24.) No Justice of the Peace who 
 has assisted in any judgment, or in making any order appealed 
 from, in proceedings under the bastardy statute, can sit in the 
 Court of Sessions upon the hearing of any appeal made from 
 such judgment or order, (id. § 25.) 
 
 The Justices who have taken or received any bond for the 
 appearance of any party at the Sessions, must transmit th^same 
 to the clerk of the Court, before the opening thereof, together 
 with the orders of maintenance and sustenance which shall have 
 been made, or true copies thereof signed by the Justices making 
 the same. (1 E. S. 647, § 26.) 
 
 If the woman who- is so pregnant shall be married before she 
 is delivered of the child, or if she miscarries so that the child is 
 not born alive, or if it appears that she is not so pregnant, then 
 the person charged as the father of such child must be imme- 
 diately relieved out of custody, by a warrant under the hands 
 and seals of the Justices by whom he was conunitted, upon such 
 fact appearing to them. {id. § 30.) 
 
 § 219. Warrant to discharge Putaiive Father. ' 
 
 County, ss: 
 To the keeper of the common jail of the said county, greeting: 
 
 Whereas, C D was, by a warrant signed by the undersigned, 
 G H and S T, Justices of the Peace of said county, and dated 
 the day of , 18 , committed to your custody in 
 
 the said jail, because, having been adjudged by us to be the 
 father of a bastard child, of which E B was lately delivered at 
 in said county, and which was chargeable to said county, 
 he neglected \or, refused] to pay the costs and charges by us 
 certified; [or, to execute the bond requit-ed by the statute; or 
 both, as the case may be;] And whereas it now appears to us 
 that the said E B was married before she was delivered of the 
 said bastard child: You are, therefore, hereby commanded, on 
 the receipt hereof, to dischai'ge and relieve the said C D out of 
 your custody in the said jail, unless he be therein detained by 
 you for some other cause than that expressed in the said war- 
 rant. 
 
 Given under our hands and seals, this day of , 
 
 18 . GH, [l. s.] 
 
 • ' ST, [L. S.J 
 
 Justices, &c. 
 
732 NEW YORK JTJSTICB. 
 
 The Court of Sessions is authorized, when any order of filia- 
 tion and maintenance is quashed for any other reason than upon 
 the merits and facts, to bind over the person charged as the 
 reputed father to appear at the next Court of Sessions; and, in 
 such case, the same proceedings may be had by the Justices 
 for the apprehension of the person charged as the father of a 
 bastard, or of a child likely to be bom a bastard, and for the 
 maiking of an order of filiation and maintenance, and for the 
 commitment of such person in default of executing any bond 
 required by law, as are authorized to be had in the first in- 
 stance; and the 'same proceedings must subsequently be had, in 
 all respects. (1 R. 8. 650, §§ 39, 40.) 
 
 The bonds taken by any Justice or Justices, for the appear- 
 ance of any person charged as the father of a bastard, or of a 
 child likely to be born a bastard, or for the appearance of any 
 mother of a bastard child, at any Court of Sessions, must be 
 signed by the persons binding themselves as principals and sure- 
 ties, and must be transmitted by the Justice or Justices taking 
 them, or receiving them from any constable, to the said Court, 
 at the opening of the next term thereof, (id. 651, \ 45.) 
 
 If the putative father or mother of any bastard, or of any 
 child likely to be born a bastard and to become chargeable, 
 shall run away from the place of their ordinary residence, leav- 
 ing such bastard or child chargeable or likely to become charge- 
 able to the public, the overseers of the poor of the town, or 
 the superintendents of the poor of the county, where any such 
 bastard shall be born or be likely to be barn, may apply to any 
 two Justices of the Peace of the county where any estate, real 
 or personal, of the putative father or mother of such bastard 
 shall be, for authority to seize and take such real and personal 
 estate. Upon due proof being made to the satisfaction of such 
 Justices, of such facts, they may issue their warrant, in the same 
 manner as is provided by statute in relation to parents abscond- 
 ing and leaving their children chargeable, and the same pro.- 
 ceedings, in all respects, must be had thereon, {id. 652, § 52; 
 id. 615, § 8; post, chap. XIX.) 
 
BASTAEDS. 733 
 
 ^ 220.- Warrant to seize the Property of Aiscondiifig Father of 
 
 Bastard. 
 County, ss: 
 To the Overseers of the Poor of the town of , in said 
 
 county, [or, To the Superintendents of the Poor of said 
 
 county:] 
 
 It appearing to us, two of the Justices of the Peace of said 
 county, as well by the representation and application to us made 
 by the said Overseers, \or, the said Superintendents,] as upon 
 due proof of the facts before us given, that C D is the father of 
 a bastard child, whereof E B, of said town, is now pregnant, and 
 which, when born, is likely to become chargeable to said town, 
 \or, county,] or, that C D is the father of a bastard child lately 
 born in said town, of E B, and which is chargeable, or likely to 
 become chargeable, to said tovm [or, county,] and that said C 
 D has run away from said town, "vvhich is the place of his ordi- 
 nary residence, leaving such bastard child likely to become 
 chargeable [or, chargeable] to the public, and leaving in said 
 county some estate, real or personal: We therefore authorize 
 you, the said Overseers [or, 'the said Superintendents] of the 
 Poor, to take and seize the goods, chattels, effects, and things 
 in action, and the lands and tenements of the said C D, where- 
 ever the same may be found in said county: And you will, im- 
 mediately upon such seizure, make an inventory of the property 
 by you taken, and return the same, together with your proceed- 
 ings, to the next Court of Sessions of said county. 
 
 Given, &c., [as in! § 210.] 
 
 If the party against whom such warrant issues, returns and 
 supports such bastard or child, or gives security satisfactory to 
 such Justices, to such overseers or supeiuntendents, as the case 
 may be, that such bastard or child shall not become, or there- 
 after be, chargeable to the town or county, then such warrant 
 must be discharged by an order of such Justices, and the prop- 
 erty taken by virtue thereof must be returned to such party. 
 (1 R. 8. 652, § 52; id. 616, § 11.) 
 
 § 221. Bond to he given by Party, where Property has been 
 
 seized. 
 
 Know all men by these presents, that we, C D and E F, of 
 , in the county of , are held and firmly bound 
 
 nnto E F and O P, Overseers of the Poor of the town of 
 
 , in said coimty, [or. Superintendents of the Poor of said 
 county,] [as in .§ 206 to the *', and then add:'\ Whereas the said 
 
734 NEW YOKK JUSTICE. 
 
 0\ erseers [or, Superintendents] lately seized the pi'operty of 
 the said C D, under a warrant issued by G H and S T, two Jus- 
 tices of the Peace of said county, upon due proof to them given 
 that said C D was the father of a bastard child,, whereof E B, 
 of said town, was then pregnant, and which, when born, was 
 likely to become chargeable to said town, [or, county,] [or, that 
 said C D, was the father of a bastard child lately born in said 
 town, of E B, and which was chargeable, or likely to become 
 chargeable to said town, [or, county,] and that said C D had 
 run away from said town, which was the place of his ordinary 
 residence, leaving such bastard child likely to become charge- 
 able [or, charg^eable] to the public, and leaving in said county 
 some estate, real or personal; And the said G D having returned, 
 and being desirous of having his property so taken restored to 
 him: Now the condition of this obligation is such, that if the 
 said bastard child shall not become, or hereafter be, chargeable 
 to said town or county, then this obligation to be void; other- 
 wise, of force. 
 
 Sealed, &c., [as in § 209.J C D. [l. s.] 
 
 E F. [L. s.j 
 
 ^ 222. Order to discharge the Warrant and to restore the 
 Pro]perty. 
 County, ss: 
 To the Overseers of the Poor of the town of , in said county, 
 
 [or, to the Sujjerintendents of the Poor of said county:] 
 
 Whereas, by a warrant, issued by us, to you directed, bearing 
 date the _ day of , 18 , you were authorized to 
 
 seize the goods, chattels, effects, and things in action, and the 
 lands and tenements, of C D, upon proof that he had run away 
 leaving a bastard child of which he is the father, likely to be- 
 come chargeable [or, chargeable] to the public; And whereas the 
 said C D, has now returned, and supports such bastard child, 
 [or, has given security to you, satisfactory to us, that such 
 bastard child shall not become, or hereafter be, chargeable to 
 said town or county:] "We do, therefore, hereby discharge the 
 said warrant so issued against the said C D, and direct the prop- 
 erty taken to be restored to him. 
 
 Given, &c., [as in % 210.] 
 
 Every constable or other officer, to whom any bond of the 
 putative father of a bastard, or of a child likely to be born a 
 bastard, taken out of the county where the warrant was issued, 
 is delivered, who neglects or refuses to deliver the same to the 
 Justice who issued the warrant, within fifteen da,ys after the 
 
BASTAKDS. ' 735 
 
 receipt of the same, will forfeit the sum of twenty-five dollars, 
 to be sued for and recovered by and in the name of any overseer 
 of Ihe poor, or county superintendents, at whose instance the 
 warrant was issued. (1 R. S. 656, § 69.) 
 
 No Justice of the Peace is liable to any information, indict- 
 - ment, action of trespass, or other action, by reason of his having 
 endorsed any warrant issued for the apprehension of the puta- 
 tive father of a bastard, or of a child likely to be born a bastard, 
 although it should afterwards appear that such warrant was 
 illegally or improperly issued, (id. § 70.) If any Justice who 
 has issued any warrant for the apprehension of the father of a 
 bastard, or of a child likely to be born a bastard, is dead, or has 
 vacated his office, or is absent, on the return of such warrant, 
 the constable who apprehends such father, must carry him before 
 some other Justice of the same town, who has the same authority 
 to proceed therein as the Justice who issued the warrant. (1 
 R. /S, 656, § 71.) 
 
 Fees. 
 
 The fees allowed by law for services under the statute enti- 
 tled, " Of the support of bastards," are as follows: 
 
 To Justices, (id. 637, §§ 28, 29.)] A warrant of aiTest, nine- 
 teen cents; 
 
 Endorsing any such warrant issued from another county, 
 twelve and a half cents; 
 
 Drawing, certifying and copying a bond or recognizance, 
 twenty-five cents; 
 
 A warrant of commitment, nineteen cents; 
 
 A summons, twenty-five cents; 
 
 Every sulipcena, six cents; 
 
 Taking and certifying the acknowledgment of any instrument 
 which is required to be acknowledged before a Justice, twenty- 
 five cents; 
 
 For administering an oath or aflirmation, twelve and a half 
 cents. 
 
 Two dollars per -day for each day actually and necessarily 
 devoted to the examination. ■ (Laws of 1862, chap. 372, p. 625.) 
 
 To Constables, {id. 647, § 40.)] Serving a warrant nine- 
 teen cents; 
 
 Mileage, going only, for each mile, six cehts; 
 
736 KEW YORK JUSTICE. 
 
 Arresting and committing any person pursuant to any process, 
 fifty cents; 
 
 Mileage, going only, for each piile, six cents. 
 
 To Witness. {Laws o/1840, chap. 386, ^ 8.) Each witness, 
 for each day, fifty cents; 
 
 Mileage, four cents per mile, each way, if the witness resides 
 more than three miles from the place of attendance. i 
 
 CHAPTER y. 
 
 OF BEGGAES AND VAGEANTS. 
 
 All idle persons who, not having visible means to maintain 
 themselves, live without employment; all persons wandering 
 abroad and lodging in taverns, groceries, beer-houses, out-houses, 
 market-places, sheds, or barns, or in the open air, and not giv- 
 ing a good account of themselves; all persons wandering abroad 
 and begging, or who go about from door to door, or place 
 themselves in the streets, highways, passages, or other public 
 places, to beg or receive alms, are deemed vagrants. (1 B. 8. 
 632, § 1.) 
 
 It is the duty of every constable, or other peace officer, 
 whenever required by any person, to carry such vagrant before 
 a Justice of the Peace of the same town, or before the mayor, 
 recorder, or some one of the aldermen of the city in which 
 such vagi'ant shall be, for the purpose of examination, (id. § 2.) 
 
 If the Justice or other officer is satisfied, by the confession 
 of the oifender, or by competent testimony, that the person 
 brought before him is a vagrant within the description above 
 given, he must make up and sign a record of conviction thereof, 
 which must be filed in the county clerk's office. The Justice 
 or other officer must then, by a warrant under his hand, commit 
 the vagrant, if he is not a notorious offender, and is a proper 
 object for such relief, to the county poor-house, if there is one, 
 or to the alms-house or poor-house of the town or city, there to 
 be kept at hard labor for any period not exceeding six months. 
 
BEGGAESI 4ND VAGRANTS. 737 
 
 If the offender is an improper person to be sent to the poor- 
 house, he must be committed to the bridewell or house of cor- 
 rection of the city or county, if there is one, and if none, to the 
 common jail of the county, for a term not exceeding sixty days, 
 there to be kept, if the Justice thinks proper so to direct, 
 upon bread and water only, for such time as shall be directed, 
 not exceeding one half the time for which he shall be commit- 
 ted. (1 R. 8. 633, § 3.) The record and commitment should set 
 forth the grounds on which the charge of vagrancy was based. 
 {People vs. Forbes, 4 Park. Or. 611; butt see People vs. Gray, 
 id.m.) 
 
 % 223. Record of Conviction of a Vagrant. 
 
 County, ss: 
 
 Be it remembered, that E F was this day brought before me, 
 the undersigned, a Justice of the Peace of the town of , 
 
 in said county, at my office in the said town, upon the charge 
 and accusation, that he was found in the said town, an idle per- 
 son, not having visible means to maintain himself, and living 
 without emplojonent, \or as the case may 5e,] and a vagrant 
 within the intent and meaning of the statute in such case made 
 and provided; and I, the said Justice, being satisfied, upon due 
 and personal examination of said E F, and by his confession now 
 before me made, [or, upon competent testimony now before- me 
 given,] that said charge and accusation are in all respects true, 
 the said E F is therefore duly convicted before me of being a 
 vagrant, within the true intent and meaning of said statute; and 
 it appearing to me that the said E F is not a notorious offender, 
 and that he is a proper object for relief, I adjudge and deter- 
 mine that said E F be committed to the county poor-house of 
 said county, [or, the alms-house, or, the poor-house of the said 
 town,] for the term of forty days, there to be kept at hard 
 labor; [or, and it appearing to me that said E F is an improper 
 persoii to be sent to the poor-house, I do therefore adjudge and 
 determine that the said E F be committed to the common jail 
 of said county for the term of thirty days.] 
 
 Given under my hand and seal, this day of , 18 . 
 '' G H, Justice, &c. [l. s.] 
 
 This record must fee filed ia the office of the clerk of the 
 county. 
 
 47 
 
738 NEW, YORK JUSTICE. 
 
 , § 224. Warrant of Commitment. 
 
 County, ss: 
 To any Constable of said county, greeting: 
 
 Whereas E F has been this day duly convicted before me, 
 the undersigned, a Justice of the Peace of the town of , 
 
 in said county, of being a vagrant; and inasmuch as it appears 
 to me that said E F is not a notorious offender, and is a proper 
 object for relief, [or, is an improper person to be sent to the 
 poor-house,] I have adjudged that the said E F be committed 
 as hereinaftar expressed: You are, therefore, hereby com- 
 manded, in the name of the people of the State of New York, 
 to convey the said E F to the county poor-house, [or, alms- 
 house, or, town poor-house,] the keeper whereof is required to 
 keep him therein, at hard labor, for the term of forty days; 
 [or, to convey the said E F to the common jail of said county, 
 the keeper whereof is required to detain him in safe custody 
 therein, for the term of thirty days.] 
 
 Given, &c., [as in § 223.] 
 
 A subsequent statute provides, that every person who, having 
 his face painted, discolored, covered or concealed, or being other- 
 wise disguised in a manner calculated to prevent him fi-om 
 being identified, shall ajjpear in any road or public highway, or 
 in any field, lot, woods or enclosure, may be pursued and 
 arrested in the manner hereinafter provided, and, upon being 
 brought before any Justice of the Peace of the same county 
 where he is arrested, shall, if not giving a good account of him- 
 self, be deemed a vagrant within the pm-view of the statute, and 
 shall, upon conviction as therein provided, be committed to the 
 jail pf the county where he shall be found, for a term not ex- 
 ceeding six months. {Laws of 1845, chap. 3, § 1.)^ 
 
 An-y magistrate to whom complaint is made that any p'erson 
 has appeared in the public highway, or in any lot, field, woods, 
 or enclosure, with his face so painted, discolored, covered or c6n- 
 cealed, or being otherwise disguised, as aforesaid, ciay, in his 
 discretion, by warrant under his hand, depute and empower any " 
 elector of the county to arrest, seize, C9nfine and bring such 
 person before such magistrate, to answer the complaint. If the 
 name of the person charged is not known, it will be sufficient 
 to describe him by some fictitious name, (id, § 9.) 
 
BEGGARS AND VAGRANTS. 739 
 
 § 225. Warrant to arrest a person in Disguise. 
 
 p , ' > ss: To [any elector of the county.] 
 
 A B, of the Ijpwn of , in said county, hfiving this day 
 
 made complaint, on oath, before me, the undersigned, a Justice 
 of the Peace of the said town, that E F, &c., [as the complaint 
 may be:] You are tlaerefore hereby commanded, in the name 
 of the People of the State of New York, forthwith to arrest the 
 said E F, and bring him before me, the said Justice, at my 
 office, in , aforesaid, to answer to the said complaint, and 
 
 to be dealt with in the premises according to law. 
 
 Witness my hand, this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 ' If any child is found begging for alms, or soliciting charity 
 from door to door, or in any street, highway, or public place of 
 any city or town, any Justice of the Peace, on complaint, and 
 proof thereof, must commit such child to the county poor-house, 
 if there is one, or to the alms-house, or other place provided for 
 the support of the poor, there to be detained, kept, employed, 
 and instructed, in such useful labor as the child may be able to 
 perform, mitil discharged therefrom by the county superintend- 
 ents of the poor, or bound out as an apprentice by them, or by 
 the commissioners of the alms-house, or overseers of the poor. 
 (1 R. 8. 633, § 4.) 
 
 § 226. Warrant to commit a Child to the County Poor-House. 
 
 County, ss: 
 To any Constable of said County, greeting: 
 
 Whei'eas, complaint on oath, and due proof, having this day 
 been made to me, one of the Justices of the Peace of said 
 county, that a male [or, female,] child, by the name of A B, has 
 been found in the town [or, city,] of , in said county, beg- 
 
 ging for alms: You are therefore hereby commanded, in the 
 name of the People of the State of New York, to convey the 
 said child to the poor-house in said county, [or, town; or, the 
 alms-house of said city,] the keeper whereof is required to 
 detain, keep, employ and instruct said child, in such useful labor 
 as he, [or, she,] may be able to perform, until discharged there- 
 from by the County Superintendents of the Poor, [or, by the 
 Commissioners of such alms-house, or, by the Overseers of the 
 Poor,] or bound out as an apprentice by them. 
 
 Witness, &c., [as in \ 225.] 
 
740 Ne# TOEk JUSTICE. 
 
 Fees. 
 The fees allowed by law for services under this statute are as 
 follows: 
 
 To Justices.'^ A warrant of arrest, nineteen cents; 
 
 A record of conviction, thirty-seven and a half cents; 
 
 A warrant of commitment, nineteen cents; 
 
 For administering an oath or affirmation, twelve and a half 
 cents; 
 
 Every subpcBna, six cents, (1 R. 8. 637, \ 11.) 
 
 To Constables.^ Serving a warrant, nineteen cents; 
 
 Mileage, going only, for each mile, six cents; 
 
 Arresting and conuoitting any person pursuant to any pro- 
 cess, fifty cents; 
 
 Mileage, going only, for each mile, six cents. (2 R. 8. 647, 
 HO.) 
 
 To Witnesses.] Each witness, fifty cents a day, and four 
 cents a mile each way, if he resides more than three miles from 
 the place of attendance. {Laws of 1840, lihap. 386, § 8.) 
 
 CHAPTER VI. 
 
 OF DISOEDEELY PEESONS, 
 
 All persons who shall abandon or neglect to support theii* 
 wives or children, or who threaten to run away and leave their 
 wives or children a burthen on the public; all persons pretend- 
 ing to tell fortunes, oi^ where lost and stolen goods may be 
 found; all common prostitutes; all keepers of bawdy houses, 
 -or houses for the resoi't of prostitutes, drunkards, tipplers, 
 gamesters, or other disorderly persons; all persons who have 
 no visible profession or calling to maintain themselves by, but 
 who do, for the most part, support themselves by gaming; all 
 jugglers, common showmen, and mountebanks, who exhibit or 
 perform for profit any puppet show, wire or rope dance, or 
 other idle shows, acts or feats; all persons who keep in .any 
 
DISORDEBLT PERSONS. 741 
 
 public highway or place, or la any place where spirituous 
 liquors are sold, any keno table, wheel of fortune, thimbles, or 
 other table, box, machine, or device for the purpose of gaming; 
 all persons who go about with such table, wheel, or other 
 machine or device, exhibiting tricks or gaming therewith; all 
 persons who play in public streets or highways with cards, 
 dice, or any other instrument or device for gaming; are 
 deemed disorderly persons. (1 R. S. 638, § 1; Laws of 1861, 
 cha^p. 127, j). 244.) 
 
 When complaint is made on oath to any Justice of the Peace 
 against any person as being disorderly, he must issue his war- 
 rant for the apprehension of the offender, and cause him or her 
 to be brought before him for examination. (1 R. S. 638, § 2.) 
 
 § 227. Warrant to arrest a Disorderly Person. , 
 
 County, ss: 
 To any Constable of said county, greeting: 
 
 Complaint on oath having been this day made before me, 
 G H, a Justice of the Peace of said county, that C D, of 
 , in said county, is a disorderly person within the 
 meaning of the statute in such case made and provided, for 
 that [here insert the charge:^ You are therefore hereby com- 
 manded, in the name of the people of the State of New York, 
 forthwith to take the said C D, and bring him before me at my 
 office in the of , for examination as a disorderly 
 
 person. 
 
 Given under my hand this day of , 18 . 
 
 G H, Justice, &c. 
 
 If it appears, by the confession of the offender, or by com- 
 petent testimony, that he or she is a disorderly person, the 
 Justice may require of the offender sufficient sureties for his 
 or her good behavior for the space of one year. (1 R. 8. 638, 
 § 2.) The confession here spoken of, on which the Justice may 
 act, means a plea of guilty, or some acknowledgment tanta- 
 mount thereto; not an admission deduced by the magistrate 
 argumentatively. {Bennac vs. Peojple, 4 Barb. 164.) 
 
 § 208. Recognizance of a Disorderly Person. 
 
 County, ss: 
 We, C D, E F, and L M, of , in said county, acknow- 
 
 ledge ourselves indebted to the people of the State of New 
 
742 
 
 NEW YORK JUSTICE, 
 
 York; that is to say, the said*C D in the sum of dol- 
 
 lars, and the said E F and L M, each in the sum of 
 dollars, to be respectively made and levied of our several 
 goods and chattels, lands and tenements, to the use of the said 
 people, if default shall be made in the following condition: 
 
 The condition of this recognizance is such, that if the said 
 C D shall be and continue of good behavior towards the peo- 
 ple of the State of New York, for the space of one year from 
 and after this day, then such recognizance to be void; other- 
 wise, of force. 
 
 CD. 
 
 L. S. 
 
 EF. 
 
 L. S. 
 
 LM. 
 
 L, S. 
 
 Taken, subscribed, and acknowledged, ) 
 before me, this day of , 18 . 5 
 
 G H, Justice, &c. 
 
 This recognizance remains with the magistrate taking it. 
 {People vs. Mitchell, 1 Sandf. 191.) 
 
 In default of such sureties being found, the Justice must 
 make up and sign a record of conviction of the offender as a 
 disorderly person, specifying generally the nature and circum- 
 stances of the offence, and must, by warrant under his 'hand, 
 commit the offender to the common jail of the city or county, 
 there to remain until such sureties be found, or he be discharged 
 according to law. (1 R. S. 638, § 2; People vs. Carroll, 
 3 Park. Or. 73.) 
 
 § 229. Record of Conviction of a Disorderly Person. 
 
 County, ss: 
 "Whereas complaint on oath was made before me, G H. a 
 Justice of the Peace of said county, that C D was a disorderly 
 person, for that [here insert the charge:^ And whereas the said 
 C D was this day brought before me by a warrant duly issued 
 tinder my hand, and examined concerning the offence charged 
 in the said complaint; and, it appearing to me, by competent 
 testimony, \or, by tlie confession of the said C D,] that the said 
 C D is guilty of the said offence, and is' a disorderly person: I 
 do thereupon convict him, the said C D of being a disorderly 
 person and do require the said C D to enter into a recogni- 
 zance, with two sufficient sureties, each in the sum of 
 dollars, for his good behavior for the space of one year; and he, 
 the said C D, now refusing \or, failing] to enter into such recog- 
 nizance and to find such sureties, I, therefore, in compliance 
 with the statute, make up and sign this record of conviction, 
 and do determine and adjudge that the said C D be committed 
 to the common jail of the county of , there to remain 
 
DISORDERLY PERSONS, 743 
 
 until such sureties be found, or he be dischai'ged according to 
 law. 
 Witness my hand this day of , 18 . 
 
 G H, Justice of the Peace, 
 
 This record of conviction must be made up by the magistrate, 
 and signed by him, and filed in the county clerk's office, before 
 the warrant of commitment can be issued. [Bennac vs. People, 
 4 Barb. 164.) 
 
 § 230. Wan'anf to Commit a Disorderly Person. 
 
 County, ss: 
 To any constable of said county, and to the keeper of the com- 
 mon jail of the said county greeting: 
 
 Whereas C D was this day duly convicted before me, G H,'a 
 Justice of the Peace of the said county, upon complaint, on oath 
 of R D, and other competent testimony, of being a disorderly 
 person; And whereas, upon such conviction, I did require the 
 said C D to enter into a recognizance, with two sufficient sure- 
 ties, each in the sum of dollars, for his good behavior 
 for the space of one year; And whereas the said C D made de- 
 fault in finding such sureties, and I the said Justice made up and 
 signed, and filed in the county clerk's office, a record of the said 
 conviction: You, the said constable, are therefore hereby re- 
 quired and commanded forthwith to convey and deliver the said 
 C D into the custody of the said keeper, and you the said keeper 
 are hereby required to receive the said C D into your custody 
 in the said jail, and him there safely keep, until he shall find 
 such sureties, or be discharged according to law. 
 Given under my hand this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 A warrant of commitment under this statute is valid to pro- 
 tect the officer, if it describes the offence, and the conviction and 
 ■ sentence, although it does not recite the facts proved. {Ben- 
 nac vs. People, 4 Barb. 31.) 
 
 It is a breach of any recognizance given as aforesaid, for any 
 person so bound on account of being a gamester, to play or bet, 
 at any one time or sitting, for any money, or other thing, ex- 
 ceeding the sum or value of two dollars and fifty cents. In all 
 other cases, the committing any of the acts which constituted 
 the person so bound a disorderly person, is a breach of the con- 
 dition of such recognizance. (1 B. iS. 638; § 3.) If any breach 
 
744 
 
 NEW YORK JUSTICE. 
 
 of such recognizance happens, the recognizance must be prose- 
 cuted at the instance of any overseer or county superintendent 
 of the poor, or Justice of the Peace; and the penalty, when 
 collected, must be paid into the county treasury, for the benefit 
 of the poor of such county.. (1 R. 8. 638, § 4.) 
 
 Upon a recovery upon any recognizance, the Court before 
 ■which the recovery is had, may, in its discretion, either require 
 new sureties for good behavior to be given, or may commit the 
 offender to the common jail of the city or county, for any term 
 not exceeding six; calendar months. (2 id. 639, § 5.) 
 
 ^ 231. Warrant to commit a Disorderly Person after a Recovery 
 
 upon Ms Recognizance. 
 « . County, ss: 
 
 To any constable of said county, and to the keeper of the com- 
 mon jail of the said county, greeting: 
 
 Whereas, on the day of , 18 , a recognizance 
 
 ■with two sureties, was entered into by C D, who was complained 
 of on oath before me as a disorderly person, conditioned for the 
 good behavior of the said C D towards the people of the State 
 of New York, for the space of one year from the date thereof; 
 And whereas a recovery has this day been had before me, in an 
 action upon the said recognizance, for a breach thereof, in that 
 [here stale the breach,] of which E D, one of the superintendents 
 of the poor of the said county, complained: These are, tlierefore, 
 to command you, the said constable, forthwith to convey and 
 deliver the said C D into the custody of the said keeper; And 
 you the said keeper are hereby required to receive the said C 
 D into your custody in the said jail, and him there safely keep 
 for the term of (not exceeding six months,) or until he shall be 
 discharged according to law. 
 
 Given under my hand this day , 18 . 
 
 G H, Justice of the Peace. 
 
 Any person committed to the common jail for not finding 
 sureties for good behavior, may be discharged by any two 
 Justices of the Peace of the county, upon giving such sureties 
 for good behavior as were orignally required of him. (1 R^ 
 S. 639, § 6.) 
 
 Under this statute, the magistrate before whom the conviction 
 takes place, has no authority, acting singly, to take a recogni- 
 zance for good behavior, after the record of conviction is filed. 
 IPeople 'va. Duffy, 5 Barb. 205; 23 Wend. 47.] 
 
WSOEDERLY PERSONS. 745 
 
 § 232. DiscTiarge of a Disorderly Person, to be granted by any 
 
 two Justices. 
 County, ss: 
 To the keeper of the Common Jail of said Comity, greeting: 
 
 Whereas C D was ktely committed to yom- custody in said 
 jail, by the warrant of G H, a Justice of the Peace of the said 
 cbimty, upon the conviction of the said C D, before the said 
 Justice, of being a disorderly person, and upon the failure of the 
 said C D to procure sm-eties for his good behavior, according to 
 law; And whereas the said C D has givien such sureties as were 
 originally required by the said Justice from him: Now, there- 
 fore, we, being two of the Justices of the Peace of said county, 
 do iereby require you to discharge the said C D, out of your 
 custody, under his commitment as aforesaid. 
 Given under our hands, this day of , 18 . 
 
 JHB, 
 HTC, 
 Justices of the Peace. 
 
 Fees. 
 
 The fees allowed by law for services under this statute are as 
 follows: 
 
 To Justices.^ A warrant of arrest, nineteen cents; 
 
 Every subpoena, six cents; 
 
 Administering an oath or affirmation, twelve and a half cents; 
 
 Drawing, copying and certifying a recognizance, twenty-five 
 cents; 
 
 Taking the acknowledgment of any iostrument which is re- 
 quired to be acknowledged before a Justice, twenty-five cents; 
 
 A warrant of commitment, nineteen cents. (2 R. S. 637, 
 ■%\ 28, 29.) 
 
 To Constables.] Serving a warrant,. nineteen cents; 
 
 Mileage, going only, for each mile, six cents; 
 
 Arresting and committing any person, pursuant to process, 
 fifty cents; 
 
 Mleage, going only, for each mile, six cents, {id. 647, % 40.) 
 
 To Witnesses.] Each witness, fifty cents a day, and four 
 cents a mile each way, if he resides more thSn three miles from 
 the place of attendance. (Laws of 1840, chap. 386, \ 8.) 
 
746 
 
 NEW YORK JUSTICE. 
 
 CHAPTER yil. 
 
 OF THE DISTUEBANCE OF EELIGIOUS MEETINGS, 
 THE OBSERVANCE OF SUNDAY, AND ^ PROFANE 
 CURSING AND SWEARING. 
 
 Before proceeding to consider in detail the articles of the 
 Revised Statutes relating to the Disturbance of Religious Meet- 
 ings, the Observance of Sunday, and Profane Cursing and 
 Swearing, it is proper to state the general provisions which are 
 applicable to all of them. The three articles follow each other 
 in order in the statute, and to them are subjoined the general 
 provisions alluded to. It will, however, insure a better imder- 
 standing of the detail of the proceedings under the three arti- 
 cles, to invert the order, and consider first the general provi- 
 sions. 
 
 Whenever a complaint is made to a Justice of the Peace of a 
 violation of the provisions of either of the three articles above 
 referred to, or when any of such violations happens in the pres- 
 ence of the Justice, he must cause the offender to be brought 
 before him, and proceed summarily to inquii-e into the facts. 
 (1 R. S. 677, § 73.) It will be seen hereafter that, by an act 
 passed subsequently to the Revised Statutes, the defendant, in 
 proceedings under the article relating to the DSturbauce of 
 Religious Meetings, has the right to demand a trial by jury. 
 With this exception, the injunction of the statute, that the Jus- 
 tice sfwdl proceed summarily, is imperative. 
 
 The statute does not prescribe the process by which the 
 offender is to be brought before the Justice, but it must obvi- 
 ously be by warrant, that being the process which the statute 
 authorizes in analogous cases. 
 
 § 233. Wan'ant. 
 County, ss: 
 To any constable of said county, greeting: 
 
 Whereas complaint has been this day made, on oath, before 
 me by A B) that [state the offence:^ You are therefore hereby 
 
DISTUEBANCE OF RELIGIOUS MEETINGS, ETC. 747 
 
 commanded, in the name of the People of the State of New 
 York, forthwith to arrest the said [name of the offender,'\ and 
 bring him before me, at my office, at , in said county, 
 
 to be dealt with according to law. 
 
 Given under my hand, this day of , 18 . 
 
 J H B, Justice of the Peace. 
 
 ' It is not indispensable that the warrant should state upon its 
 face the ofi'ence charged, although it ought to state the substance 
 of the complaint. {Atchinson vs. Spencer, 9 Wend. €2.) 
 
 If the person charged is found guilty, a record of his convic- 
 tion must be made up, and signed by the Justice, before issuing 
 any process to enforce the same. (1 R. 8. 677, \ 73.) 
 
 The linuts of this work will not permit a Form to be given 
 for each case contemplated by the statute, nor is that necessary. 
 All that is required, or can be given, is an outline or skeleton 
 Form, which can be easily adapted to the circumstances of any 
 particular case. 
 
 ^ 234. Record of Conviction. 
 
 County, ss: 
 
 On this day of ,18 , A B personally appeared before 
 me J H B, a Justice of the Peace in and for said county, and 
 complained on oath that C D [here insert the offence f\ Whereupon 
 I issued my warrailt, by virtue of which the said C D was arrest- 
 ed and brought before me, [and the said C D having demanded 
 a trial by jury, I proceeded, in the presence of the said C D, 
 and with the jury for that purpose duly summoned, empannelled 
 and sworn,] to inquire [summarily] into the facts; And there- 
 upon the said C D was convicted before me, the said Justice, 
 [by the verdict of the jury aforesaid,] of the said offence charged; 
 Whereupon I did adjudge and determine that the said C D 
 forfeit, by reason of the said offence, the sum of dollars, for 
 the use of the poor of said county; and the costs of the said 
 conviction were fixed by me at the sum of dollars. 
 
 In witness whereof, I have hereunto set my hand, the day 
 and year first above written. 
 
 J H B, Justice of the Peace. 
 
 i 
 
 The conviction is final, and cannot be re-examined upon the 
 merits in any Court, {id.^ 
 
 No prosecution can be maintained for any violation of either 
 of the three articles before referred to, unless the same be in- 
 
748 NEW YORK JUSTICE. 
 
 stituted by the actual issuing of process to apprehend the 
 offender, or by his actual appearance to answer the complaint, 
 within twenty days next after the offence is committed. (1 B. 
 S. 677, § 74.,) 
 
 Upon a conviction for either of these three offences, where no 
 other special provision is made for the collection of the p«nal- 
 ties and costs incurred, the Justice before whom the same is had, 
 may issue an execution to any constable of the coimty, com- 
 manding him to levy the penalties, and the costs of the convic^ 
 tibn, by distress and sale of the goods anjd chattels of the offender, 
 .and, in case sufficient goods and cha-ttels cannot be found, then 
 to commit such, offender to the common jail of the county, for 
 such; time as shall be specified in the execution, not less than 
 one nor more than three days, (id- § 75.) 
 
 § 235. JSxe&idion to collect Penalty and Costs. 
 
 County, ss: 
 To any constable of. said county, greeting: 
 
 Whereas C D has been this day convicted before me, J H B, 
 a Justice of the Peace of said county, of [here state the offence,] 
 for which he was adjudged hj me to forfeit the sum of dol- 
 lars; And whereas the costs of his conviction were fixed by me 
 at dollars, and I have made up and signed a record of his 
 conviction: 
 
 You are, therefore, hereby commanded to levy the amount so 
 forfeited, and the costs of the said conviction, by distress and 
 sale of the goods and chattels of the said C D; and, in case 
 sufficient goods and chattels cannot be found, then to commit 
 the said C D to the common jail of the said county, for the 
 term of [not less than one nor more than three days.] 
 
 Given under my hand and seal, this day of , 
 
 18 . JHB, [l. s.] 
 
 Justice of the Peace. 
 
 Within thirty days after any such conviction is had, the Jus- 
 tice making the same must cause to be filed in the office of the 
 derk of the county a certificate of such conviction, briefly stating 
 the offence charged, the conviction and judgment thereon, and, 
 if any fine has been collected, the amount thereof, and to whom 
 paid, (id. § 76.) 
 
DISTTJKBANCE OF RELI6I0TTS MEETINGS, ETC. 74^ 
 
 § 236. Certificate of Conviction. 
 County, ss: 
 I, J H B, a Justice of the Peace of the said county, do hereby 
 certify, that on the day of , 18 , C D was convicted 
 
 before me of \state the offence briefly,^ and that he was thereupon 
 a,djudged by me to forfeit the stun of dollars, and that 
 
 the costs of such conviction were fixed by me at . dollars. 
 I further certify- that the said C. D paid the amount of the said 
 forfeiture and cost to me, \or, that the said C D, not having 
 paid the amount of the said forfeiture and costs, I issued an 
 execution therefor, pursuant to the statute, specifying therein 
 the term of commitment of the said offender at days.] 
 
 Witness my hand, this day of , 18 . 
 
 J H B, Justice of the Peace. 
 
 1. The Distuebance of Religious Meetings. 
 It is provided by statute as follows : "No peyson shall wil- 
 fully disturb, interrupt, or disquiet any assemblage of people 
 met for religious worship, by profane discourse, by rude and 
 indecent behavior, or by making a noise, either within the place 
 of worship, or so near it as to disturb the order and solemnity 
 of the meeting ; nor shall any person, within two miles of the 
 place where any religious society shall be actually assembled 
 for religious worship, expose to sale or gift, any ardent or dis- 
 tilled liquors, or keep open any huckstershop in any other 
 place, iim, store, or grocery, other than such as shall have been 
 duly licensed, and in which such person shall have usually 
 resided or carried on busines ; nor shall any person, within the 
 distance aforesaid, exhibit any shows or plays, unless the same 
 shall have been duly licensed by the proper authority ; nor 
 shall any person, within the distance aforesaid, promote, aid, or 
 be engaged in, any racing of any animals, or ia any gaming of 
 any description ; nor shall any person obstruct the free passage 
 of any highway to any place of public worship, within the dis- 
 tance aforesaid. (1 R. 8. 674, % 64.) Whoever shall violate 
 any of the foregoing provisions, may be convicted summ^ily 
 before any Justice of the Peace of the county, or any mayor, 
 recorder, alderman, or other magistrate of any city, where the 
 offence shall be committed, and, on such conviction, shall forfeit 
 a sum not exceeding twenty-five dollars, for the benefit of the 
 poor of the county." (1 id. § 65.) 
 
750 
 
 NEW TORK JUSTICE. 
 
 A person arrested by warrant on a charge of having violated 
 the section of the statute above quoted, caimot be taken by the 
 arresting oiEcer before any magistrate other than the one who 
 issued the process. .The provisions of the statute, authorizing 
 persons arrested under a warrant, to be brought before the 
 nearest magistrate, &c., apply only, it seems to cases where the 
 accused may be required to enter into a recognizance to appear 
 at a Court of criminal jurisdiction, or may be committed to jail. 
 {People vs. Fuller, 17 Wend. 211.) 
 
 It is the duty of all peace officers, present at the meeting of 
 any assembly for religious worship, which shall be interrupted 
 or disturbed in the manner prohibited by the statute, to appre- 
 hend the offender, and take him before some Justice of the Peace 
 or other magistrate authorized to convict as aforesaid, to be 
 proceeded against according to law. (1 R. 8. 675, §66.) 
 
 Justices of the Peace, within their jurisdiction, upon their 
 own view of any person offending against the provisions of this 
 statute, may order the offender into the custody of any peace 
 officer, or of any official member of the church or society so 
 assembled and disturbed, for safe keeping, until he shall be let 
 to bail, or a trial for such offence be had. (1 id. \ 67. And 
 the Justice can do this without waiting until he has issued a 
 warrant. {Farrell vs. Warren, 3 Wend. 253.) 
 
 If any person convicted of any of the above offences, does not 
 immediately pay the penalty incurred, with the costs of the con- 
 viction, or give security, to the satisfaction of the officer before 
 whom the conviction is had, for the payment of the said pen- 
 alty and costs within twenty days thereafter, he must be com- 
 mitted by warrant to the common jail of the county, until the 
 same shall be paid, or for such term, not exceeding thirty days, 
 as shall be specified in the wai-rant. (1 It. S. 675, § 68.) 
 
 Where a person is convicted before a Justice of one of the 
 Ward Courts of the city of New York, of disturbing a religious 
 congregation assembled for divine worsliip, and fined, security 
 given by him for the payment of the fine, in the name of the 
 clerk of the Court in which the conviction is had, is valid ; it 
 need not be in the name of the peo^Dle. {Ohatfield vs. Frye, 
 19 Werid. 545.) 
 
 The person complained of for a violation of this statute may, 
 before the Court proceeds to investigate the merits of the causey 
 
DISTURBANCE OF RELIGIOUS MEETINGS, ETC, 751 
 
 — r- ^ ^ . 
 
 demand a trial by jury. When such a demand is made, it is the 
 duty of the Court to issue a \ven,ire to some constable of the 
 county, or marshal of the city, where the offence is to be tried, 
 commanding him to summon the same number of jurors, and in 
 the same manner as is provided for the summonjng of jurors 
 before Courts of Special Sessions. {Ante, pp. 640, 642.) The 
 Court must proceed to empanel a jury for the trial of the cause, 
 in the same mamier, and subject to all the rules and regulations 
 prescribed in the act providing for trials by jury in Courts of 
 Special Sessions. (Laws of 1834, chap. 78, § 1.) If the party 
 is convicted, he n:\ust pay all the costs consequent upon the trial 
 by jury; which costs are the same as are allowed by law in civil 
 cases, (id. ^ 2; ante, p. 465.) 
 
 § 237, Security for the payment of Penalty and Costs upon 
 Conviction for disturbing a Religious Meeting. 
 
 Whereas C D has been this day convicted before G H, a 
 Justice of the Peace of county, of [here state the offence,^ 
 
 and, upon such conviction, has been adjudged by the said Jus- 
 tice to forfeit the sum of dollars, and to pay the costs of 
 the said conviction, which were fixed by the said Justice at 
 : Now, therefore, we, the said C D and E F, as his 
 surety, do agree to pay the said sum forfeited and the said 
 costs, within twenty days from the date hereof, to the Superin- 
 tendents of the Poor of the said county of 
 
 Dated the day of , 18 . CD. [l. s.j 
 
 E F. [l. s.j 
 
 1 \ 238. Warrant of Commitment. 
 
 County, ss: 
 To any constable of said county, or to the keeper of the com- 
 mon jail of the said County, greeting: 
 
 Whereas C D has this day been convicted before me, G H, a 
 Justice of the Peace of said county, of \liere state the offence;'] 
 And whereas, upon said conviction, I did adjudge that the said 
 C D should forfeit the sum of dollars, and did fix the 
 
 costs of the said conviction at the sum of dollars; And 
 
 whereas the said C D has neither paid the said penalty and costs, 
 nor given the security for the payment thereof required by law, 
 and I have made up and signed a record of hiS conviction: 
 These are, therefore, to command you, the said Constable, forth- 
 with to convey and deliver the said C D into the custody of the 
 said Keeper; and you, the said Keeper, are hereby required to 
 receive the said C D iato the said jail, and him there safely keep, 
 
752 
 
 NEW YORK JUSTICE. 
 
 until he shall pay the said penalty and costs. But he is not to 
 be imprisoned hereunder longer than the term of [not exceeding:. 
 tff,irty\ days. 
 
 ^ G H, [L. S.J 
 
 Justice of the Peace. 
 
 * 
 
 >• 2. The Observance of Sunday. 
 
 , The statute provide^, that no writ, pro.cess, warrant, ordpr, 
 ; judgment, decree, or other proceeding) of ^'^y Court or officer 
 of justice, shall be seryed or executed upon the first day of the 
 week, called Sunday, except in cases of breach of the peace, or 
 apprehended breach of tlje peace, or for the apprehension ojf 
 persons charged with crimes and misdemeanors, or the violation 
 of any of the provisions of the articles in regard to the Dis- 
 turbance of Eeligious Meetings and the Observance of Sunday, 
 and except where such service is specially authorized by law. 
 The service of any such process or proceeding, in any other case, 
 i« utterly void, and subjects the party offending to damages at 
 the suit of the party aggrieved. (1 R. S. 675, § 69.) 
 
 The statute furt|ier provides, that tliere shall be no shooting, 
 hunting, fishing, .sporting, playing, horse-racing, gaming, fre- 
 quenting of tippKng-houses, or any unlawful exercises or pas- 
 times, on the first day of the week called Sunday; nor shall any 
 person travel on that day, unless in cases of charity or necessity, 
 or in going to or returning from some church or place of wor- 
 ship, within the distance of twenty miles, or in going for medi- 
 cal aid or for medicines and returning, or in visiting the sick and 
 returning, or in carrying the mail of the United States, or in 
 going express by order of some public officer, or in removing his 
 family and household furniture when such removal was com- 
 menced on some other day; nor shall there be any servile labor- 
 ing or working on that day, except works of necessity and 
 charity, unless done by some person who imiformly keeps the 
 last day of the week, called Saturday, as holy time, and does 
 not labor or work on that day, and whose labor shall not disturb 
 other persons in their observance of the first day of the week. 
 Every person, being of the age of fourteen years, offending 
 against the foregoing provisions, forfeits one dollar for each 
 offence, {id. 676, § 70.) 
 
 It is further provided, tha,t no pex'son shall expose for sale any 
 
PROFANE CURSING AND SWEARING. 753 
 
 wares, merchandise, fruit, herbs, goods, or chattels, on Sunday, 
 except meats, milk and fish, which may be sold at any time 
 before nine o'clock in the morning; and that the articles so 
 exposed for sale shall be forfeited to the use of the poor, and 
 may be seized by virtue of a warrant for that purpose, which 
 any Justice of the Peace is authorized to issue, upon a convic- 
 tion of the offender. When seized, they are to be sold, on one 
 day's notice being given, and the proceeds paid to the overseers 
 of the poor of the town or city. (1 B. 8. 676, § 71.) 
 
 § 239. Warrant to seize the Goods forfeited. 
 County, ss: 
 To any constable of said county, greeting: 
 
 Whereas C D has this day been duly convicted before me, 
 G H, a Justice of the Peace of the said county, of [state the 
 ctffence, and the articles exposed for sale,^ contrary to the statute 
 in such case made and provided; And whereas the said C D 
 was adjudged by me to forfeit to the use of the poor the said 
 articles so exposed, and the costs of said conviction were fixed 
 by me at dollars, and I have made up and signed a 
 
 record of his conviction: You are, therefore, hereby com- 
 manded to take and seize each and all of the said articles so 
 exposed for sale, and to sell the same at public auction, after 
 having given one day's notice of the time and place of such 
 sale, and have you the moneys arising from such sale before me 
 at my said office in said town [or, city] without delay. 
 
 Witness my hand, this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 It is also provided, that no keeper of an inn or tavern, or of 
 any ale-house, or porter-house, or grocery, nor any other person 
 authorized to retail strong or spirituous liquors, shall, on Sun- 
 day, sell or dispofee of any ale, porter, strong or spirituous 
 liquors, excepting to lodgers in such inns or taverns, or to per- 
 sons actually travelling on that day in the cases allowed by law. 
 Every person offending against the foregoing provisions, and 
 being thereof duly convicted, forfeits the sum of two dollars 
 and fifty cents, {id. § 72.) As to further provisions restricting 
 the sales of liquor on the Sabbath, see Chap. X. on Excise and 
 Taverns. {Infra, p. 761.) 
 
 3. Profane Cursing and SweariStg. 
 The statute provides, that every person who shall profanely 
 curse or swear, shall forfeit one dollar fOr every offence, If the 
 
 48 
 
■?54 NEW YORK JUSTICE. 
 
 ofence is comir^tted in the presence and hearing of a Justiee 
 of the Peace, while holding a Court, he must immediately, and 
 without any other proof, convict the oifender. And' if, at any 
 other time, the offence is committed in the presence and hear- 
 ing of the Justice, under such circumstances as, in his opinion, 
 to amount to a gross violation of public decency, he may, in 
 his discretion, convict the offender, without further proof If 
 the person convicted does not forthwith pay the penalties 
 incurred, with the costs, or give security for their payment 
 within six days, he is to be committed by warrant to the com- 
 mon jail of the county for every offence, or for any number of 
 offences whereof he was convicted at one and the same time, 
 for not less than one day nor more than three days, there to be 
 confined in a room separate from all other prisoners. (1 R. 8. 
 674, % 61, 62, 63.) 
 
 § 240. Wan-ani of Arrest for Profanity. 
 
 County, ss: 
 To any constable of said county, greeting: 
 
 Whereas complaint on oatth has this day been made by C D, 
 before me, J H B, a Justice of the Peace of the said county, 
 that [state the 'complaint:'] You are therefore hereby com- 
 manded, in the name of the People of the State of New York, 
 forthwith to take the said \name of offender,'] and bring him 
 before me at my oiEce at ^ , in said county, there to be 
 
 dealt with according to law. 
 
 Given under my hand and seal, this day of , 18 . 
 
 J B H, [l. s.] Justice of the Peace. 
 
 The above Form can be easily varied to suit a case where 
 the profanity occui-s in the presence of the Justice. 
 
 ^ 241. Security for the Payment of the Penalty and Costs. 
 
 County, ss: 
 Whereas A B has been this day convicted before J H B, a 
 Justice of the Peace of the town of , in said county, 
 
 of profane cursing and swearing, for which h^ was adjudged 
 by the said Justice to forfeit one dollar; And whereas the said 
 Justice has fixed the costs of said conviction at dollars: 
 
 Now therefore we, the said A B and C D, as his surety,^ both 
 
PROFANE CURSING AND SWEARING. 755 
 
 of , in said county, do hereby agree to pay the said sum for- 
 feited and the said costs, within six days from the date hereof. 
 "Witness our hands and seals, this day of , 18 . 
 
 A B. [l. s.] 
 C D. [L. S.J 
 
 § 242. Warrant of Commitment upon Conviction for Profanity. 
 
 County, ss: 
 To any constable of the said county, and to the keeper of the 
 
 common jail of the said county, greeting: 
 
 Whereas A B has been this day convicted before me, of 
 profane cursing and swearing, for which offence he was adjudged 
 by me to forfeit the sum of one dollar; And whereas the costs 
 of said conviction were fixed by me at dollars; And 
 
 whereas the said A B has neither paid the said penalty and costs, 
 nor given the security for the payment thereof required by the 
 statute, and I have made up and signed a record of his convic' 
 tion: These are, therefore, to command you, the i^aid constable, 
 forthwith to take the said A B, and deliver him into the custody 
 of the keeper of the said jail; and you, the said keeper, are 
 hereby- required to receive the said A B into your custody in 
 said jail, and him there safely keep, in a room separate from all 
 other prisoners, for the term of \not less than one nor more than 
 three] days. J H B, [l. s.] 
 
 Justice of the Peace. 
 
 Fees. 
 
 In all prosecutions for any of the offences specified in the said 
 three articles, the like fees are allowed as in civil suits before 
 Justices of the Peace; {Ante, j>. 468;) but they can in no case 
 exceed five dollars, and are to be paid by the party offending, 
 over and above the penalties incurred. If the offender is im- 
 prisoned, no charges or fees are allowed. (1 B. 8. 677, § 77.) 
 
 The following services, however, do not appear to be provided 
 for by the fee bill in civil suits: 
 
 To Justices.] Drawing and signing a record of conviction, 
 thirty-seven and a half cents; 
 
 A warrant of commitment, nineteen cents. (2 id. 637, §§ 28, 
 
 29.) 
 
 To Constables.] Arresting and committing any person, pur- 
 suant to any process, fifty cents; 
 
 Mileage, going only, for each mile, six cents, {id, 647,^ 40.) 
 
766 NEW YORK JUSTICE. 
 
 CHAPTER VIII. 
 
 OF DOGS. 
 
 If any dog, says the statute, shall attack any person peace- 
 ably travelling on any highway, or any horse in a carriage, or 
 upon which any person shall be mounted, and complaint there- 
 of be made to a Justice of the Peace, such Justice shall inquire 
 into the complaint, and, if satisfied of its truth, and that such 
 dog is dangerous, he shall order the owner or possessor of such 
 dog to kill him immediately. (1 R. 8. 705, § 16.) 
 
 § 243. Order to hill a davgerous Dog. 
 County, 
 
 Town of ^ ®®- 
 
 To A B, 
 
 Complaint having been made to me, J H B, a Justice of the 
 Peace of said county, that a dog of which you are the owner or 
 possessor is a dangerous dog, and that, on the day of , 
 
 18 , he attacked one C D, while travelling peaceably on the 
 highway from to : I, having inquired into 
 
 the said complaint, and being satisfied of its truth, do hereby 
 order you immediately upon the receipt of this notice, to kill 
 the said dog. J H B, 
 
 Justice of the Peace. 
 
 If the owner or possessor of any dog refuses or neglects to 
 kill him within forty-eight hours after having received such 
 order, he forfeits the sum of two dollars and fifty cents; and 
 the further sum of one dollar and twenty-five cents for every 
 forty-eight hours thereafter, until the dog is killed, {id. 706, 
 ^18.) 
 
 When a complaint is made to/any supervisor of a town, that 
 any penalties imposed by this Section of the statute have been 
 incuiTed, he must commence a suit for the recovery thereof in 
 his name of office, and prosecute the same with due diligence, 
 and the moneys recovered must be paid by him to the county 
 treasurer, ({d. § 19.) 
 
DRAINING SWAMPS. 757 
 
 Every person in possession of any dog, or who suffers any dog 
 to remain about his house for the space of twenty days previous 
 to the assessment of any tax, or previous to an injury, chasing 
 or worrying of sheep:, or any such attack made by a dog, is 
 deemed the owner of such dog for the foregoing purposes. (1 
 E. S'706, § 20.) 
 
 Fees. 
 
 The laws does not appear to have provided any fees for the 
 services of Justices under this statute, except where a suit is 
 brought for a penalty, and then the fees are the same as in civil 
 actions, (id. 481, § 2;, ante, _p. 468.) 
 
 CHAPTER IX. 
 
 OF DEAINING SWAMPS. 
 
 Ant person owning or possessing any swamps, bog, meadow, 
 or other low land within this State, who desires to drain such 
 land, and who deems it necessary, in order thereto, that a ditch 
 or ditches should be opened through lands belonging to another 
 person or other persons, in case the owner of any such lands re- 
 fuses to permit the opening of such ditch or ditches through the 
 same, may apply to any Justice of the Peace residing in the town 
 where such lands lie, for such summons as is hereinfter specified. 
 {Laws of 1851, chajp. 345.) The Justice to whom such applicar 
 tion is made, must issue a summons directed to any constable 
 of the said town, requiring him to summon twelve reputable 
 freeholders, who are not interested in said lands, nor in any of 
 them, nor in any wise of kin toWther of the parties, to be and 
 appear on the premises at a cerruin time to be specified in the 
 summons, not less than ten, nor more than twenty days fi-om 
 the date thereof. The summons must also direct the constable 
 to give at least six days' notice to thje owner of such lands, of 
 the time at which such jury is to appeal-, (2 E. 8. 548, § 2.) 
 
 1 
 
758 
 
 NEW YOKE JUSTICE. 
 
 ^ 244. Summons. 
 Town of ' ^ . 
 
 County, ) 
 To any constable of said county, greeting. 
 
 The people of the State of New York require you to summon 
 twelve reputable freeholders, who are not interested in the fol- 
 lowing described lands of A B \liere describe the lands to be 
 drained,^ and who are not interested |in the following described 
 lands of C D [here describe the lands through which the ditch is 
 to be opened,^ and who are not in anywise of kin to either the 
 said A B or C D, to be and appear on the said lands of the said 
 C D on the day of , 18 , \not less than ten nor 
 
 more than twenty days from the date of the summons,'^ at 
 o'clock in the noon, to make a jury for determining upon 
 the matter of opening a ditch through the lands of the said C 
 
 D. You are also hereby further required to give six days' 
 notice to the said C D of the time at which such jury is to 
 appear. And you are also required to make a list of the persons 
 summoned, which you will certify and annex to this summons, 
 and make return thereof to me, and you will also further return 
 whether or not you have given to the said C D the notice herein 
 required. 
 
 Witness my hand, this day of , 18 . 
 
 J H B, Justice of the Peace. 
 
 The constable to whom the summons is delivered, must exe- 
 ctite the same, by summoning the jurors, in the same manner as 
 upon a venire issuedi in a cause pending before a Justice of the 
 Peace; and he must, in like manner, make a return thereof, and 
 of the fact of his having given the notice therein requii-ed. (2 
 
 E. S. 548, § 3; ante, pp. 283, 284.) 
 
 The Justice must attend at the time and place specified in the 
 summons, and, jf it appears that due notice has been given, as 
 required in the summons, and if twelve freeholders, as above 
 specified, then and there appear, he must administer to each of 
 them an oath or affirmation, well and ti'uly to examine and cer- 
 tify in regard to the benefits or damages which will result from 
 the opening of the ditch or ditches, {id. § 4.) 
 
 § 245. Oath to be administered to the Jurors. 
 
 You do solemnly swear, [or, affirm] that you will well and 
 truly examine and certify in regard to the benefits or damages 
 which will result from the opening of a ditch [or, ditches] through 
 the lands of C D; so help you God. 
 
DRAINING SWAMPS. 759 
 
 The person applying to have the ditch or ditches opened, 
 must then deliver to the jury a map of the land through which 
 the same is or are to be opened, on which the plan, length, 
 width and depth of the ditch or ditches must be particularly 
 designated. The jmy must personally examine the premises, 
 and hear any reasons that may be offered in regard to the ques- 
 tion submitted to them ; and they may, if they think proper, 
 vary the plan or dimensions of any ditch so proposed to be 
 opened. If any alterations are made, they must be designated 
 on the map. (2 R. 8. \ 548, § 5.) If, after talcing all the 
 cii'cumstances into consideration, the jury are satisfied that the 
 opening of the ditch or ditches is necessary and proper, they 
 must so certify, by inquisition in writing ; and, if so satisfied, 
 they must further certify, by such inquisition, that the benefits 
 which will accrue to the owner of the lands from the opening 
 of the ditch or ditches, will or will not be equal to any damages 
 he will sustain thereby ; and, if such benefits are certified not 
 to be equal to the damages, the jury must assess the damages 
 which, in their judgment, will be sustained therefrom by such 
 owner, and certify the same in like manner, {id. 549, ^ 6.) 
 
 § 246. Inquisition. 
 
 "We, the undersigned, who were summoned as a jury to ex- 
 amine and certify in regard to the benefits or damages which 
 would result from the opening of a certain ditch \or, certain 
 ditches] through the lands of C D, situate in the town of ' , 
 
 in the county of , do hereby certify that, in obedience 
 
 to such summons, we met on the Any of , 18 , 
 
 at o'clock in the noon, on the premises of the said 
 
 C D ; that we personallj'' examined such premises, and heard 
 the reasons that were offered in regard to the opening of the 
 said ditch, [or ditches ;] that we made no [or, that we made 
 certain] alterations in the plan of the said ditch [or, ditches] 
 submitted to us ; and that, after taking all the circumstances 
 into consideration, we are satisfied that the opening of the said 
 ditch [or, ditches] is necessary and -proper. And we further 
 certify, that the benefits which will accrue to the said C D from 
 the opening of the said ditch [or, ditches] will be [or, will not 
 be] equal to any damages that ne will sustain thereby. [If the 
 benefits are not equal to the damages, add : We therefore assess 
 and certify the damages which will be sustained by the said C 
 
760 NEW YORK JUSTICE. 
 
 D from the opening of the said ditch [or, ditches,] at the sum of 
 dollars.] 
 In witness whereof, we have hereunto set our hands, this 
 day of ,' 18 .] 
 
 [Signatures of the Jurors.] 
 
 This inquisition must be signed by all the jurors, and deliv- 
 ered to the Justice. Upon the pajnment of the costs, and of the 
 damages, if there are any, and of the .delivery of the inquisition 
 to the Justice, the party applying for the summons may enter 
 upon the land, and cut and open the ditches, and he and his 
 heirs, forever thereafter, have the right to enter upon the pre- 
 mises, and clean out the ditches as often as the same shall be 
 necessary. Any person obstructing or injuring the ditches is 
 liable to pay double the damages that shall be assessed by a 
 jury for such injury ; and, in case of a second offence by the 
 same person, treble such damages. (2 R. S. 549, ^§ 6, 7, 8, 9.) 
 
 The Justice must file the map and the inquisition, certified by 
 him, in the clerk's office of the town where the premises are 
 situated, (id. § 10.) 
 
 When any jury is empanneled, if they cannot agree, after 
 being kept together for such time as is deemed reasonable by the 
 Justice before whom they have appeared and been empannelled, 
 such Justice may discharge them, and issue a precept for a new 
 jury, or order another jury to be drawn, as the case may require ; 
 and the same proceedings must be had before such new jury as 
 might have been had before the jury so discharged, (id. 554, 
 
 h 26.) 
 
 Fees. 
 
 The Justice, and the constable who summons the juiy, are 
 entitled, for all their services under this .statute, to a fee of one 
 dollar each. (Laws of 1851, chap. 345, § 2.) 
 
 The jurors are entitled to fifty cents each, in case they attend, 
 and agree upon and sign an inquisition as above provided, (id.) 
 
EXCISE AND TAVERNS. 761 
 
 CHAPTER X. 
 
 OF EXCISE AND TAVEENS. 
 
 The following is a brief statement of the principal provisions 
 of law established under the Eevised Statutes, relative to Excise 
 and Taverns. The enactments of the Eevised Statutes on the 
 subject have lately been abrogated, {Laws of 1857, chap. 628, 
 § 33,) and a new system substituted; which however, so far 
 corresponds with the old, that a reference to the former law 
 may often be found convenient. 
 
 Under the Eevised Statutes the supervisor of every town, and 
 the Justices of the Peace resident therein, were created the 
 Board of Commissioners of Excise for their town. Three of 
 them, consisting of the supervisor, and any two of the Justices, 
 were competent to execute the powers vested in the Board. If 
 the office of supervisor was vacant, then any three of the Jus- 
 tices might form a Board. If there were not two Justices in 
 the town, then any two Justices of a neighboring town might be 
 associated by the supervisor with him, and the three formed the 
 Board. (1 E. S. 678, § 1.) 
 
 The supervisor might associate more than two Justices with 
 him as Commissioners of Excise, and the act of a majority present 
 was valid. If three, or a majority present, signed the license 
 to keep a tavern, it was sufficient, though the supervisor re- 
 fused. It was not indispensable th^t the supervisor should sign 
 •the license. (Orvis vs. Thompson, 1 Johns. 500.) 
 
 The Commissioners of Excise Avere required to meet on the 
 first Monday of May, in each year, in their respective towns, and 
 on such other days as the supervisor should appoint, at a place 
 designated by him; or, in case his office were vacant, on such 
 other days, and at such places, a^^ the Justices of the Peace of 
 the town should appoint. (1 R: 8. 678, § 2.) 
 
 Boards of Excise were required to keep a book of minutes of 
 their proceedings, in which must be entered every resolution 
 granting a license to any person; which minutes must be veri- 
 
762 NEW YORK JUSTICE. 
 
 fied by their signatures, and filed with the town clerk within 
 five days. (1 R. 8. 678, § 3.) 
 
 The Board had the power to grant licenses to keepers of inns 
 and taverns, being residents of their town or city, to sell strong 
 and spirituous liquors and wines, to be drank in their houses 
 respectively; and to grocers, being such residents, licenses to 
 ^ell such liquors or wines, not to be drank^ however, in their 
 shops, houses, out-hbuses, or gardens; and to determine the sum 
 to be paid for a license, by each person applying; which sum 
 must not be less than five dollars, nor more than thirty dollars. 
 {id. H-) . 
 
 Licenses to tavern keepers might also be granted, without 
 including a license to sell strong or spirituous liquors, wines, or 
 alcoholic drinks; and, in all such cases, the restriction must be 
 expressed on the face of the license; and no sum of money or 
 fee for such license could be required or taken. Such license, 
 however, could not be granted, until a bond like that required 
 where a license was grantBd to a person to sell liquor to be 
 drank in the house of the seller, was given. {Laws of 1843, 
 chap. 97, § 1.) 
 
 Licenses to sell liquors were required to be signed by the 
 Commissioners, and were not to be issued until the duty fixed 
 by th^ Board had been paid. When issued, they continued in 
 force, unless revoked, until the day after the first Monday of 
 May in the succeeding year. This provision of the statute was 
 held not to refer to the calendar year, but to the license year; 
 and, therefore, a license granted after the first Monday of May 
 was held to expire at the same time with those granted on that 
 day. {Disbrowrs. Saunders, 1 Den. 149.)- 
 
 A license granted by two of the Cominissioners of Excise, 
 without the presence or consent of the supervisor, and when 
 they are not assembled as a Board for the purpose of granting 
 licenses, was held illegal and void. {Palmer vs. Doney, 2 
 Johns. Oases, 346.) 
 
 A town Board of Excise, until the actuJll entry of a resolu- 
 tion, had a large discretion to exercise on the question of grant- 
 ing and refusing licenses, which it was held a Court should in 
 no case attempt to control. {Ux parte Peisons, 1 Hill, 655.) 
 
 Commissioners of Excise were indictable for knowingly and 
 corruptly granting a tavern license to a person who was not of 
 
EXCISE AND TAVERNS.' 763 
 
 good moral character, who had not the necessary accommoda- 
 tions and whose proposed tavern was not necessary for the 
 actual accommodation of travellers. {People vs. Norton, 7 
 Barb. 477.) 
 
 Before any license could be granted to any person to sell 
 strong and spirituous liquors and wines, to be drank in the 
 house of the seller, the applicant must execute and deliver to 
 the supervisor, or, in case of his absence, to one of the Justices 
 of the town, a bond to the people of the State, in the penal sum 
 of one hundred and twenty-fiv« dollars, with a sufficient surety, 
 to be approved by the Board, with a conditioia that the appli- 
 cant, during the time that he should keep an inn or tavern, 
 would not suffer it to be disorderly, or suffer any cock-fighting, 
 gaming, or playing with cards or dice, or keep any billiard 
 table, or other gaming table, within the tavern so by him kept, 
 or in any out-house, yard, or garden belonging thereto. (1 R. 
 S. 679, § 7.) 
 
 In all licenses granted to grocers or other persons (except 
 tavern keepers) to sell strong or spirituous liquors or wines, in 
 quantities less than five gallons, there must be inserted an 
 express declaration, that such license should not be deemed to 
 authorize such sale of any liquor, or wine, to be drank in the 
 house o» shop of the person receiving such license, or in any 
 out-house, yard, or garden appertaining thereto, or connected 
 therewith. A bond similar to the one required above, must be 
 given by the grocer, conditioned that, during the term for which 
 his license is granted, he would not suffer his grocery to become 
 disorderly; that he would not sell or suffer to be sold any 
 ^rong or gpirituous liquors or wines, to be drank in his shop or 
 house, or in any out-house, yard, or garden appertaimng there- 
 to; and that he would not suffer any such liquor, sold by virtue 
 of such license, to be drank in his shop, or house, or in any out- 
 house, yard, or garden belonging thereto, {id. 680, § 13.) 
 
 This bond was required to be filed in the office of the clerk 
 Of the town, city, or village, within five days after its execu- 
 tion, {id. 681, § 20.) 
 
 The person receiving, directly or mdirectly, from any servant, 
 apprentice, or minor, any clothing, goods, money, or things in 
 action, in payment for any strong or spirituous liquors or wines, 
 sold to such apprentice, servant, or minor, or receiving them iu. 
 
/ 
 
 764 NEW YORK JUSTICE. 
 
 IDawii or pledge to secure any such payment, forfeited three 
 times the sum or value of the money or articles so received by 
 him, together with the money or articles themselves, to be re- 
 covered by the master, parent, or guardian, as the case may be. 
 (1 B. S. 681, § 18.) 
 
 This and other penalties imposed must be sued for and re- 
 covered by the overseers of the poor of the town where the 
 offence is committed, except where the statute prescribes that 
 they were to be sued for by some other person, {id. § 19.) 
 
 Whenever a breach of the condition of a bond given by a 
 tavern-keeper, grocer, or other person occurred, it was the duty 
 of the supervisor of the town, mayor of the city, or trustees of 
 the village in which the bond was executed, to prosecute the 
 same, and recover the penalty thereof, for the use of the poor. 
 {id. § 21.) 
 
 In all cases where a Justice issued any process for the pur- 
 pose'of compelling the appearance of a defendant to any action 
 for the recovery of any penalty or forfeiture under the excise 
 law, he was required to endorse on such process a general refer- 
 ence to the statute by which the action was given, e. g.: 
 "According to the section of title 9, chapter 20, part 1, of 
 the Revised Statutes entitled. Of excise, and the regulation of 
 taverns and groceries." An action to recover a penalty under 
 the excise laws might be maintained before a Justice of the 
 Peace of the town, for the benefit of the 'poor of which town 
 the penalty when recovered was to be applied, notwithstanding 
 the provision of the statute that no action to recover a penalty 
 given to a town should be brought before any Justice of the 
 Peace of the town for the benefit of which the action is pros^ 
 cuted. {Wood vs. Rice, 6 Hill, 58.) 
 
 It was held that the complaint, in an action for a penalty for 
 selling liquox's in violation of this statute, should state the town 
 where, the time when, and the kind and quantity of liquor 
 sold. {Blaisdell vs. Hewitt, 3 Caines, 137.) But, that it was 
 not necessary to prove the precise day of committing the offence, 
 {Tiffany vs. Driggs, 13 Johiis. 253,) or the fact that the defend- 
 ant had not a license. {Porter vs. Deyo, 19 Wend. 361.) The 
 offence of selling the liquor might be proved by circumstantial 
 evidence; and the fact that the defendant kept liquor in his 
 grocery store to sell, was competent evidence for that purpose, 
 
EXCISE AND TATEBNS. 765 
 
 in an. action against him to recover the penalty. {Vallance vs. 
 Uverts, 3 Barb. 553.) 
 
 A single action for a penalty might be sustained against sev- 
 eral who joined in selling liquors without license, though but one 
 penalty could be recovered. And the rule as to recovering but 
 one penalty was the same, whether there were one or several 
 actions. {IngersoU vs. Skinner, 1 Den. 540.) Several distinct 
 penalties might, however, be recovered in the same suit. {Deyo 
 Ys.Boore, 3 Hill, 527.) 
 
 It was held no answer to a charge of selling liquor by retail 
 without license, that it was sold to the purchaser under the 
 direction and prescription of a licensed physician ; it must also 
 appear that it was prescribed for medical purposes. (People 
 vs. Safford, 5 Den. 112.) 
 
 The provisions of the Revised Statutes, relative to excise and 
 taverns, were repealed by act of April 16, 1857, and the follow- 
 ing enactment substituted. 
 
 % 1. There shall be appointed on the second Tuesday of May 
 next, by the county judge and the two justices of the sessions, 
 or a majority of them, of which the county judge shall be one, 
 in each of the counties of this state, (except the city and county 
 of New York, wherein the chief justice of the Superior Court, 
 the presiding judge of the Court of Common Pleas, and the Ee- 
 corder of the city, or any two of them shall appoint,) at the 
 place where the county courts are required to be held, three 
 reputable freeholders, residents of the county, who shall be the 
 commissioners of excise for their respective counties, and shall 
 b«. known as the board of commissioners of excise. The said 
 county judge and justices, and in the city of New York the 
 chief justice of the Superior Court, the presiding judge of the 
 Court of Common Pleas, and the Recorder of the city, shall 
 meet at the tiitie and place aforesaid, and divide the said com- 
 missioners into three classes by lot. The commissioner assigned 
 to the first class, shall hold his ofBce until the first day of January, 
 eighteen hundred and fifty-nine, the commissioner in the second 
 class, until the first day of January, eighteen hundred and sixty- 
 one, and the commissioner in the third class until the first day 
 of January eighteen hundred and sixty-three, and one commis- 
 sioner in every two years hereafter, as the term of office shall 
 
766 
 
 NEW YORK JUSTICE. 
 
 expire, shall be appointed on the second Tuesday of May in 
 such year, at the place and by the authorities above provided, 
 who shall hold his office for six years from the first day of 
 January following his appointment. In case of a vacancy in 
 the office of county judge, the appointment of commissioners 
 shall be made by the justices of the sessions. In case of a 
 vacancy, by death or otherwise, in the board of commissioners, 
 such vacancy shall be filled by the said judge and justices, or 
 by the said chief justice of the Superior Court, the presiding 
 judge of the Court of Common Pleas, aftd the Recorder of the 
 city of New York, for the unexpired term of such commissioner; 
 every commissioner before he shall enter upon his duties, shall 
 take and subscribe the oath prescribed by section one, article 
 twelve of the Constitution. 
 
 § 2. The commissioners of excise shall meet in their respec- 
 tive counties, at the place aforesaid, on the third Tuesday of 
 May in each year, and on such other days as a majority' of the 
 commissioners shall appoint, not exceeding ten days in any one 
 year, and in the city of New York not exceeding fifty days, for 
 the purpose of granting licenses as hereinafter prescribed. They 
 shall have power to grant licenses to keepers of inns, taverns or 
 hotels, being residents of the town or city where such inn, tavern 
 or hotel is proposed to be kept, to sell strong and spirituous 
 liquors and wines to be drank in their houses respectively ;, and 
 to storekeepers being such residents, a license to sell such liquors 
 and wines in quantities less than five gallons, but not to be drank 
 in their shops, houses, out-houses, yards or gardens, and they 
 shall have power to determine the sum to be paid for a license by 
 each person applying, which sum shall be as follows : In towns 
 and incorporated villages, not less than thirty dollars nor more 
 than one hundred dollars ; and in cities not less than thirty dollars 
 nor more than two hundred and fifty dollars; no license shall be 
 granted to any person or firm to sell in>more than one place. 
 
 The commissioners have not power to hold sessions more than 
 ten days, in any one year for the purpose of receiving and decid- 
 ing upon applications for a license. {People vs. Excise Com. 
 3 Parle Or. 501.) 
 
 § 3. They shall keep a book of minutes of all their proceed- 
 ings in which shall be entered every resolution passed by them 
 granting a license to any person, with the sum required to be 
 
EXCISE rAND TAVEENS. , 767 
 
 paid, . which minutes shall be verified by their signatures and 
 filed with the town clerk of the town for which such license 
 shall be granted, and in the several cities of the state with the 
 city cjerk, within eight days thereafter. 
 
 § 4. All licenses shall be signed by the commissioners grant- 
 ing the same. They shall not be issue'd until the requirements 
 fixqd by the board shall have been complied with; Avhen issued 
 they shall be in force, unless revoked, until ten days after the 
 third Tuesday in May next succeeding the granting of such 
 license, and in the city of New York until fifty days thereafter. 
 
 § 5. Eaph of said boards of commissioners of excise shall have 
 the right to appoint a clerk for the time they may actually be 
 in session in accordance with tJtie provisions of this act, such 
 clerk to receive the same compensation as is allowed by this, act 
 to each of the commissioners. They shall keep a book of min- 
 utes of proceedings on which shall be entered the names of all 
 applicants for license, ^nd they shall also enter on said book a list 
 of all licenses granted, with the names of the parties to whom 
 the same are granted and the names of the securities to the 
 bond required in each case. The said books of minutes shall be 
 deposited in the office of the county clerk. No fee or reward 
 shall be taken by any board of excise, or by any member there- 
 of, or by ^ny clerk thereof, for any license to keep an inn, tavern 
 or hotel, or to sell strong or spirituous liquors, or for any service 
 required of such board, nor shall any compensation be retained 
 by any such board, or by any member thereof, or by any clerk 
 thereof, out of the excise money, but the whole amount thereof 
 shall be paid over to the county treasurers for the use of the 
 poor in the several counties; but the persons composing such 
 board of excise shall be entitled to receive the sum of three dol- 
 lars per day for services actually performed, to be allowed and 
 paid in like manner as other county charges, and no other or 
 greater compensation shall be allowed. The expenses of pro- 
 curino- necessary books for minutes and necessary blanks, when 
 actually incurred, shall be audited and paid in like manner as 
 ' other county charges. 
 
 Commissioners are entitled to their per diem fees for meeting 
 to -decide on prosecutions. {Board of Excise of Saratoga vs. 
 Dohert^, 16 How. i6.) 
 
 :§ 6. , License shall not be granted to any person to sell strong 
 
768 NEW YOBK JUSTICE. 
 
 aud spirituous liquors and wines to be drank on the premises of 
 the person licensed, unless such person proposes to keep an inn, 
 tavern or hotel, nor unless the commissioners are satisfied that 
 the applicant is of g ood mora l character, and that he has suffi- 
 cient ability to keep an inn, tavern or hotel, and the necessary 
 accommodations to entertain travellers, and that an inn, tavern 
 or hotel is required for the actual accommodation of travellers, 
 at the place where ^uch applicant resides or proposes to keep 
 the same, all which shall be expressly stated in such license; 
 and no such license shall be granted except on the petition of 
 not less than twenty respectable freeholders of this State, re- 
 siding in the election district where such inn, tavern or hotel is 
 proposed to be kept, by them duly signed, and verified by the 
 oath of a subscribing witness, and not then, unless in the opinion 
 of the commissioners such inn, tavern or hotel is necessary or 
 proper, and not more than one license shall be granted on the 
 memorial of the same petitioners, or any of them: all petitions 
 upon which such licenses shall be granted, shall be filed witk 
 the county clerk within eight days. And in case the commis- 
 sioners shall grant any license contrary to the provisions of this 
 act, they shall be deemed guilty of a misdemeanor. 
 
 § 7. Nor shall such license to keep an inn, tavern or hotel, be 
 granted until the applicant shall have executed and delivered to 
 the board of commissioners of excise herein provided, a bond to 
 the people of this State in the penal sum of two hundred and 
 fifty dollars, with sufficient sureties, who shall justify in the 
 sum of five hundred dollars, to be approved by the board of 
 commissioners, with a condition that such applicant during the 
 time that she shall keep any inn, tavern or hotel, will not suffer 
 it to be disorderly, or keep a gambling table of any description 
 within the inn, tavern or hotel, so kept by him, or in any. out- 
 house, yard or garden belonging thereto. 
 
 § 8. Every keeper of an inn, tavern or hotel in any of the 
 towns or villages of this State, shall keep in his house at least 
 three spare beds for his guests, with good and sufficient bedding, 
 and shall provide and keep good and sufficient stabling and 
 provender of hay in the winter, and hay or pasturage in the sum- 
 mer, and grain for four horses or other cattle more than his own 
 stock, for the accommodation of travellers; and every keeper 
 of an inn, tavern or hotel, in the cities of this State, shall keep 
 
EXCISE AND TAVEllNS. TBO 
 
 __ , _ : __ ^ 
 
 at least three spare beds, and the necessary bed(Jing for the 
 acGotamodation of travellers. For every neglect or default in 
 having eitlier of the ai-tic|es herein required, such keeper shall 
 forfeit ten dollars, to be recovered by the overseers of the poor 
 for the use df the poor. 
 
 § 9. Every inn, taverii or hotel-keeper licensed under the 
 provisions of this act, shall within thirty days after obtaining his 
 license, put up a proper sign oh or adjacent to the front of his 
 house, with his name thereon, indicating that he keeps an inn, 
 taVern or hotel, and he shall keep up such sign during the time 
 that he keeps an inn, tavern or hotel. For eveiy uicCnth's nieg- 
 lect to keep up such sign, he shall forfeit ten dollars. 
 
 ^ 10. No inn, tavern or hotel-keeper who shall trufet any per- 
 son other than those "Vvho inay be lodger^ in his house, for any 
 Scirt of strong or spirituous liquors or wines, shall be capable ot 
 recovering this same by any suit. All securities given for sUcH 
 debts shall be void; and the inn, tavern, or hotel-keeper taking 
 such securities with inteiit to evade this proposition, shall forfeit 
 double the sum intended to be secured thereby. 
 
 § 11. In all licenses that may be granted (excepting to inn, 
 tavern, or hotel-keepers,) to sell strong or spirituous liquors ot 
 wines, in quantities less than five gallons, there shdll be inserted 
 an express declaration that such license shall not be deenled to 
 authorize the sale of any strong or spirituous liquor or wine tci 
 be drank in the hduse or shop of the persoia receiving such 
 license, or in any oUt-house, yard or garden appertaining thereto 
 or connected therewith. 
 
 § 12. Sueh licenses srhall not be gra,nted, unless the commis- 
 sioners are satisfied that the applicant is of good moral character, 
 nor until such applicant shall have executed a bond to the people 
 of this State in the penal sum of five hundred dollars, with suffi- 
 cient sureties, who shall duly justify in the sum of one thou- 
 sand dollars, to be approved by the commissioners, and to be 
 delivered to the commissioners, conditioned that, during thel 
 term for which his license shall be granted, he will hot sufifer 
 his place of business tb become disorderly; that he will not sell, 
 nor suffer to be Sold, any Strbng or Spirituous liquox's or wines 
 to be drank in his shop or hoUse, or in toy oUt-house, yard or 
 garden appertaining thereto; and that he will not suffer any 
 such liquor, sold by virtue of sueh license, tb be drank in W^ 
 49 
 
770 NEW YOKE JUSTICE. 
 
 shop or house, or in any out-house, yard or garden belonging 
 thereto; and whenever any person is seen to drink in, such shop 
 or house, out-house, yard or garden belonging thereto, any 
 spirituous liquors or wines, forbidden to be drank therein, it 
 shall be prima facie evidence that such spirituous liquors or 
 wines were sold by the occupant of such premises, or his agent, 
 with the intent that the same should be drank therein. On any 
 trial for the oflFence last aforesaid, such occupant or agent may 
 be allowed to testify respecting such sale. 
 
 § 13. Whoever shall sell any strong or spirituous liquors or 
 wines in ^quantities less than five gallons at a time, without 
 having a license therefor, granted as herein provided, shall for- 
 feit fifty dollars for each ofieuce. 
 
 § 14. Whoever shall sell any strong or spirituous liquors or 
 wines to be drank in his house or shop, or any out-house, yard 
 or garden appertaining thereto, or shall suffer or permit any 
 such liquors or wines sold by him, or under his direction or 
 authority, to be drank in his house or shop, or in any out-house, 
 yard or garden thereto belonging, without having obtained a 
 license therefor, as an inn, tavern or hotel-keeper, shall forfeit 
 fifty dollars for each offence. 
 
 § 15. No inn, tavern or hotel-keeper, or any other person 
 licensed to sell any strong or spirituous liquors or wines, shall 
 sell or give away any such liquors or wines to any Indian or 
 apprentice, knowing or having reason to believe him to be such, 
 without the consent of his master or mistress, nor to any minor 
 under the age of eighteen years, without the consent of his 
 father or mother or guardian. Whoever shall offend against 
 either of these provisions, shall foi-feit ten dollars, to be recov- 
 ered by the master of such apprentice or servant, or by the 
 parent or guardian of such minor; and ■ any person who shall 
 sell or give away any strong or spirituous liquor to anj- Indian , 
 in this State, shall be deemed guilty of a misdemeanor, and, on 
 conviction, shall be liable to a fine of twenty-five dollars for each 
 and every offence. 
 
 § 16. It shall be the duty of every sheriff, under-sheriff, dep- 
 uty-sheriff, constable, marshal, policeman, or officer of the 
 police, to arrest all persons found actually engaged in the com- 
 mission of any offence in violation of tliis act, and forthwith to 
 carry such person before any magistrate of the same city or 
 
EXCISE AND TAVERNS. 771 
 
 town, to be dealt with according to the provisions of this act; 
 and it shall be the duty of such magistrate, on sufficient proof 
 that such offence has been committed, miless such person shall 
 elect to be tried before such magistrate, to require a bond to be 
 executed by sucia offender in the penal sum of one hundred 
 dollars, with sureties, who shall justify in. double the amount 
 severally, conditioned, that such offender will appear and answer 
 the charge at the next term of the Court of Oyer and Terminer 
 or Sessions to be held in said county, and abide the order and 
 judgment of the Court thereon, or to commit sueh offender to 
 the county jail under such judgment of said. Court, or until he 
 be discharged according to law. Aud it shall be the duty of 
 the magistrate to entertain any complaint of a violation of this 
 act, made by any person under oath, and forthwith to issue a 
 warrant and cause such offender to be brought- before him, to 
 comply with the provisions of this section; and such magistrate 
 shall, within ten days, cause such bond, together with all papers 
 and affidavits, with a list of the persons and residences of the 
 eompl9,inantS and witnesses examined before him, to be delivered 
 to the district attorney of the county, whose duty it shall be 
 forthwith to prosecute the same. ' 
 
 ^ 17, It shall be the duty of every such officer, whenever he 
 shall find any person intoxicated in any public place, to appre- 
 hend such person, and take him before some magistrate of the 
 same city or town ; and if such magistrate shall, after due exam- 
 ination, deem him too much intoxicated to be examined, or to 
 answer on oath correctlj'", he shall direct said officer to keep him 
 in some jail, lock-up, or other safe and convenient place, until he 
 shall become sober, and thereupon forthwith to bring him before 
 said magistrate ; and whenever any person shall be brought 
 before any magistrate as provided in this section, it shall be the 
 duty of such magistrate tb administer to such person an oath or 
 affii-mation, and examine him as to the cause of such intoxica- 
 tion, and to ascertain the person who sold or gave the liquor to 
 such person ; such intoxication being hereby declared to be an 
 offence against the provisions of this act, punishable, upon con- 
 viction, by a fine of ten dollars, and costs at the same rate as in 
 Courts of Special Sessions, and imprisonment in the county jail, 
 work-house, or penitentiary, until paid, not, however, to exceed 
 ten;days. It^hall be the duty of such officers to arrest or cause 
 
f72 NEW YORK JUSTICE. 
 
 to be arrested all such persons when so intoxicatecf, and of the 
 magistrate to entertain such complaints and make such exam- 
 ination under the penalty of fifty dollars, with full costs of suit, 
 for any neglect to comply with the provisions of this section. 
 
 The accused is not punishable summarily before a magistrate 
 unless he elects to be thus tried, the act having secured to him 
 the right in all cases to give bail and to be tried only upon 
 indictment by a grand jury. {Peojile vs. Puttnan, 3 Park Or. 
 386.) 
 
 § 18. Whoever shall sell or give away any strong or spirituous 
 
 liquors or wines, or shall suffer any such liquors or wines to be 
 
 ' sold or given away under his direction or authority, to any 
 
 intoxicated person, shall forfeit not less than ten nor more than 
 
 twenty-five dollars for each offence. 
 
 § 19. It shall be the duty of magistrates and overseers of the 
 poor in any town or city, on complaint and satisfactory proof by 
 a wife, that her husband is an habitual drinlcer of intoxicating 
 liquors, to issue written notices to all dealers in intoxicating 
 liquors against whom such complaint is made; forbidding the 
 sale or giving of such liquor to such husband for the term of 
 six months from the date of th^ notice, under a penalty of fifty- 
 dollars, with costs, for each and every sale or giving of such 
 liquor, after such notice shall have been given ; to be sued for 
 in her own name a,nd for her own use. It shall be the duty of 
 such magistrates and overseers of the poor to forbid the sale in 
 like manner in all cases when a husband shall make like satis- 
 factory proof concerning the wife, and all the provisions of this 
 section shall apply the same in either case. It shall.be the duty 
 of magistrates and overseers of the poor, when like proof is 
 made by a parent concerning a child who is a minor under the 
 age of t^venty-oue years, or by a child concerning a parent, to 
 forbid the sale in like manner ; and all the provisions of this 
 act shall apply as in other cases named above. 
 
 § 20. It shall not be lawful, under the provisions of this act, 
 to sell intoxicating liquors to any pefson guilty of habitual 
 drunkenness, nor to any person against Avhom the seller may 
 have been notified ■))y parent, guardian, husband or wife, from 
 selling intoxicating liquors, and every party so selling or retail- 
 ing intoxicating liquors, shall on proof thereof, before any Court 
 of competent jurisdiction, be deprived of his license to sell, and 
 
EXCISE AND TAVERNS. 773 
 
 shall not be allowed a renewal of said license and in addition, 
 on conviction, shall be punished by a fine of not less than twenty- 
 dollars nor more than fifty dollars for each and every violation 
 of the provisions herein set forth. If any inn, tavern or hotel 
 keeper, or any other person or persons whatsoever, Imowingly 
 (outside of any poor-house) shall sell or give to any pauper or ' 
 inmate of any poor-house or alms-house, strong or spirituous 
 liquors or wines, such person or persons so offending shall be 
 fined twenty-five dollars, and be guilty of a misdemeanor, and 
 on conviction, shall be imprisoned not more than sixty days. 
 
 § 21. No inn, tavern or hotel keeper, or person licensed to sell 
 liquors, shall sell or give away any intoxicating liquors or wines 
 on Sunday, or upon any day on which a general or special elec- 
 tion or town meeting shall be held, and within one quarter of a 
 mile from the place where such general or special election, or 
 town meeting shall be held, in any of the cities, villages or 
 towns of this State, to any person whatever, as a beverage. In 
 case the election or town meetings shall not be general through- 
 out the State, the provisions of this section in such case, §hall 
 only apply to the city, county, village or towns in which such 
 election or town meeting shall be held. Whoever shall offend 
 against the provisions of this section shall be guilty of a misde- 
 meanor, and on conviction shall be imprisoned in the county 
 jail, work-house or penitentiary not more than twenty days. 
 
 It is not an indictable offence under this act for a pereon who 
 is not 'licensed to sell liquors, or who is not the keeper of an 
 inn, tavern or hotel, to sell or give aM^ay intoxicating liquors or 
 wines on Sunday. {People vs. Pagre, 2 Park Or. 600.) The 
 amount of bail to be given by a person indicted under this sec- 
 tion is in the discretion of the magistrate, (id.) 
 
 ^ 22. The penalties imposed by this act, except the penalties 
 provided for by sections eight, fifteen and nineteen, shall be 
 sued for and recovered in, the name of the board of commis- 
 sioners of excise, and paid over to the treasurer of the county 
 for the supj)ort of the poor of the county. 
 
 § 23. Evefy bond taken pursuant to the provisions of this 
 act, shall, within ten days after the execution of the same, be 
 filed in the office of the clerk of the town or village in which 
 the' license. shall be granted, and in cities, in the city clerk's 
 office. 
 
774 
 
 NEW. YORK JUSTICE. 
 
 § 24. Whenever a breach of the condition of such bond, 
 given upon the granting of any license, shall happen, it shall 
 be the duty of the commissioners of excise, the supervisor of 
 the town, mayor of the city, or trustees of the village in which 
 the person who shall incur the penalty shall reside, to prose- 
 cute the same and recover the penalty therefor. 
 
 § 25. Whenever any conviction or judgment shall be obtained 
 against any person, licensed to sell strong or spirituous liquors 
 or wines, for any violation of the provisions of this act, either 
 in a suit for a penalty or in a suit upon a bond given by such 
 person, it shall be the duty of the justice or Court before 
 whom the same shall be had, to transmit to the next Court of 
 Sessions of the county, a statement of such conviction or judg- 
 ment, and the offence for which it was obtained. 
 
 § 26. The said Court shall cause the person or persons against 
 whom such conviction or judgment was obtained to be notified 
 to appear on such day as the Court shall appoint, to show cause 
 why any such license that may have been granted to him or 
 them should, not be revoked. At the day appointed, and on 
 such other days as the Court shall appoint, it shall proceed to 
 inquire into the circumstances, and shall revoke the license 
 granted to the person or persons violating the provisions of 
 this act. 
 
 § 27. The person whose license shall be revoked shall be 
 incapable of receiving any such license to sell strong or spirit- 
 uous liquors or wines for the space of three years from the 
 time of such revocation. 
 
 § 28. Any person who shall sell any strong or spirituous 
 liquors or wines to any of the individuals to whom it is declared 
 by this act to be unlawful to make such sale, shall be liable for 
 all damages which may be sustained in consequence of such^ 
 sale, and the parties so offending may be sued in any«of the 
 Courts of this State by any individual sustaining such injuries 
 or by the overseers of the poot of the town where the injured 
 party may reside, and the sum recovered shall be for the bene- 
 fit of the party injured. 
 
 § 29. It shall be the duty of Courts to instrijct grand jurors 
 to inquire into all offences against the provisions of this act, 
 and to present all offenders under this act, and also all persons 
 who may be chai-ged with adulterating imported or other 
 
EXCISE AND (TAVERNS. 775 
 
 intoxicating liquors with poisonous or deleterious drugs or 
 mixtures or selling the same, or with knowingly importing or 
 selling intoxicating liquors or wines adulterated with poison- 
 ous or deleterious drugs or mixtures; which oflences are hereby 
 declared to be misdemeanors, to be punished by imprisonment 
 in the penitentiary, workhouse cir jail, for a period of three 
 mouths, and by a fine of one hundred dollars. 
 
 . § 30. In case the parties or persons, whose duty it is, by the 
 provisions of this act, to prosecute, shall neglect to prosecute 
 for any penalty provided by tliis act, for the period of ten days 
 after complaint to them that any provision of this act has been 
 violated, accompanied with reasonable proof of the same, any 
 other person may prosecute thpr^fpr in the name of the. Com- 
 missioners of the Board of Excise. 
 
 §.31. AH incorporated companies and persons in this State 
 engaged in conveying passengers, including especially all rail- 
 road, steamboat and ferry companies, and all kinds, of corporar 
 tions conveying for hire pei'sons or property, shall be and 
 hereby are requii-ed to refuse employment to all persons who, 
 on good and sufficient proof, shall be shown to indulge in the 
 intemperate use of intoxicating drinks, and any such company 
 which shall retain in its employ any person or persons who 
 shall on competent proof, be shown to be intoxicated at any 
 period whilst in the active service of said company or person, 
 either as engineer, conductor, fireman, switchtender, comma,nder, 
 pilot, mate or foreman, or be in any way connected with the 
 moving power or management, or whose duty if neglected 
 would diminish the safety and security of life, limb or pro- 
 perty, entrusted thereto, said company or corporation shall be 
 liable to pay a sum of not less than fifty dollars, nor more than 
 one hundred dollars, to the county treasurer in the county 
 where the offence may be committed and proved, before any 
 Court of competent jurisdiction. 
 
 .§ 32. Li any judgment rendered or recovered on any bond to 
 be given under this act, or for any penalty incurred under this 
 act, the person or persons against whom such judgment shall be 
 rendered shall not be entitled, under any execution issued on 
 such judgment, to the liberties of the jail. 
 
 § 33. Title nine of chapter twenty of the first part of the 
 Kevised Statutes and the act entitled "An act for the preven- 
 
776 
 
 NEW YORK JUSTICE. 
 
 tipii of intemperance, pauperism and crime," passed April ninth, 
 eighteen hundred and fifty-five, and all other acts inconsistent 
 ■with the provisions of tliis act are hereby repealed. 
 
 The following enactment is supposed not to be aflFected by the 
 above repealing clause. 
 
 Every assignment, sale or pledge of articles which are exempt 
 from execution, and every levy or sale of such articles or prop- 
 erty by virtue of an execution, by- consent of the defendant 
 therein, is void, where the consideration or any part thereof, 
 for which such assignment, sale or pledge was made, or for the 
 debt on which judgment was rendered in any court, and on 
 which such execution was issued, was for the sale of intoxicating 
 liquors; and, in any action commenced for the recovery of the 
 value of the property sold as aforesaid, the person for whose 
 benefit suoh sale or transfer was made, may be called and ex- 
 amined as a witness, as to thfe fact of the sale of intoxicating 
 liquors so made, in the same manner, and subject to the same 
 penalties, as if called in any other case. {Laws of 1842, chap. 
 157, § 3.) 
 
 [For order Appointing a Coonmissioner^ see McCall's-Cleek's 
 Assistant, p. 214, No. 1, Second Edition.] 
 
 § 247. Petition of Freeholders. 
 
 To the Boaj-d of Commissioners of Excise of the County of 
 
 Albany: 
 
 The undersigned petitioners, respectfully represent to your 
 Board, that they are severally freeholders of the State of New 
 York, and residents of Election District No. in the 
 
 of and county of Albany. 
 
 Your petitioners further respectfully represent that 
 of the of and County of Albany, an applicant 
 
 for a. " License to Sell Strong and Spirituous Liquors and 
 Wines" on the premises, in said Election District, where he 
 proposes to keep an Lm, Tavern or Hotel, known as , 
 
 is a person of good moral character, and has sufficient ability to 
 keep the same, and the necessary accommodations to entertain 
 travelers, and further, that an Inn, Tavern or Hotel is required 
 at the same place for the actual accommodation of travelers. 
 
 Your petitioners further respectfully represent that they have 
 not signed any other memorial, during the present year, for any 
 other such License to be granted in the same Election District. 
 
EXCISE ANB TAVEENS. 777 
 
 Your petitioners, therefore, respectfully ask that a License 
 may be granted to the stiid fipplicant to selL strong and spiritu- 
 ous liquors, to be drank on the premises aforesaid. 
 
 Dated at this day of , 18 . 
 
 Signed in presence \ 
 of ] 
 
 \ 248. Proof of Signatures by a Subscribing Witness. 
 
 State of New York, \ 
 County of Albany, ^®®= 
 
 of being duly swoi'n, doth depose and 
 
 say, that he is the subscribing witness to the within memorial; 
 that he knows the persons whose names are attached to the said 
 memorial, and saw each of them sign the same, and that he 
 thereupon became the subscribing witness thereto. 
 
 Sworn before me, this 
 
 day of ,18 
 
 1, 
 
 [For Inn, Tavern or Hotel-Keepers' License see McCall's 
 Clerk's Assistant, p. 215, Second Edition.] 
 
 \ 249. Affidavit on ajpplicaiion to Sell Intoxicating Liquors. 
 
 State of New York, ) 
 County of • ) ' 
 
 , being sworn, says, he resides in the 
 of and intends to sell intoxicating liquors m said 
 
 on the premises known and described as , 
 
 that h6 is an elector of said and does not use intoxica- 
 
 ting liquor as a beverage, and is not. and during the time he 
 shall sell such liquor will not be a pedler, nor the keeper of, 
 'nor interested in any inn, tavern, boarding-house, victualing 
 house, grocery or fruit store, bar-room, confectionary, or other 
 place of public entertainment, nor the keeper of, nor interested 
 Jn any theatre, museum or other place of public amusement, or 
 the captain, commander, agent, clerk, or servant of or on any 
 vessel, boat or water craft of any kind whatever, and will not 
 violate any provision of the act entitled "An act for the pre- 
 vention of Intemperance, Pauperism, and Crime," passed April 
 9, 1855. 
 
 Subscribed and sworn to before me, ) 
 
 this day of , 18 . 5 
 
 , County Judge of County. 
 
778 NEW YORK JUSTICE. 
 
 § 250. Bond for Selling Intoxicating Liquor. 
 
 Whereas, has made oath before 
 
 County Judge of county, as required by section second 
 
 of the 'act entitled " An act for the prevention of Intemperance, 
 Pauperism, and Crime," passed April 9th, 1855. Stating among 
 other things that he resides in and is an elector of the 
 in the county of and intends to sell intoxicating liquor 
 
 in said on the premises known and described as 
 
 , and said oath having been filed with the clerk of said 
 county. Now therefore, we the said and 
 
 of and of as 
 
 sureties, undertake and agree and obligate ourselves to the 
 people of the State of New York, and every person entitled 
 thereto, that said - will not violate any provision 
 
 of the act entitled " An act for the prevention of Intemperance, 
 Pauperism, and Crime," passed April 9, 1855, and will jp9,yiall 
 fines, damages, and costs which may be imposed upon, or re- 
 covered against him in any action, civil or criminal, to be com- 
 menced under any of the provisions of said act. 
 
 Dated , 18 . 
 
 "Witness, 
 
 § 251. Acknowledgment of Bond. 
 State of New York, 
 
 County of • . ^ ■ 
 
 I certify, that on this day of , before me person- 
 
 ally came the above named and severally acknowledged 
 
 the execution of the above undertaking. 
 
 , County Judge of county. 
 
 § 252. Justification of Sureties. 
 State of New York, 
 
 County. ^ 
 
 , being by me severally duly sworn, 
 each for himself deposeth and saith, that he resides in 
 
 and is a householder within said county of , 
 
 and is worth the sum of five hundred dollars, over and above 
 all debts, demands, liabilities, and legal exemptions, and that 
 he has not become possessed of any property for the purpose 
 of enabling him to justify as such surety, and that he is not and 
 will not become directly or indirectly engaged or interested in 
 the manufacture or sale of intoxicating liquor, during the con- 
 tinuance of his said suretyship. 
 
 Subscribed and sworn to before me, 
 this day of ' , 18 . 
 
 , Judge of county. 
 
EXCISE AND TAVERNS. 779 
 
 ^ 253. Approval of Commissioners Endorsed on the Bond. 
 
 County, ss: 
 We, the undersigned, forming the Board of Commissioners 
 of Excise ill and for said county, do hereby approve of the 
 ■within botid as to the form of the same and the sufficiency of 
 the sureties. • A B, 
 
 CD, 
 Commissioners. 
 
 ^ 254. Bond of Inn-Keeper. 
 
 Know all men by these presents, that we 
 
 of county of Albany and State of New 
 
 york, are held and firmly bound unto the people of the State 
 of New York, in the penal sum of two hundred and fifty dol- 
 lars, to be paid to the said people; for which payment well and 
 truly to be made, we bind ourselves, our and each of our heirs, 
 executors and administrators, jointly and severally, firmly by 
 these presents. 
 
 Sealed with our seals, dated the day of , one 
 
 thousand eight hundred and sixty- 
 
 Whereas, the said intends keeping an inn, tavern 
 
 or hotel, at , in the said county of Albany, and is an 
 
 applicant to the Board of Commissioners of Excise of the county 
 of Albany, for a license to sell strong and spirituous liquors and 
 w^nes to be drank in the said inn, tavern or hotel, to be kept as 
 aforesaid, pursuant to the provisions of an act entitled "An act 
 to suppress intemperance and to regulate the sale of intoxicating 
 liq^uors." 
 
 Now, therefore, the condition of this obligation is such, that 
 if the said , during the time that he shall keep any 
 
 inn, tavern or hotel, will not suffer it to be disorderly or suffer 
 any gambling, or keep a gambling table of any Uescription, 
 within the inn, tavern or hotel, so kept by him, or in any out- 
 ' house, yard or garden belonging thereto, then this obligation 
 to be void; else to remain in force. 
 
 Signed, sealed and delivered ) 
 in presence of ) 
 
 s [Add Ackiiowledgraent, Justification of Sureties, and Ap- 
 proval, as in §§ 251, 252, 253.] 
 
 [As to Form of " Book of Minutes of the Board," and as to 
 " Transcript of Minutes " to be filed in the office of the Town 
 Clerk, see McCall's Clebk's Assistant, pp. 217, 218, Second 
 Edition.] 
 
780 NEW YORK JUSTICE. 
 
 CHAPTER XI. 
 
 OF FUGITIVES FKOM JUSTICE. 
 
 By the Constitution of the United States, it is provided, that 
 a person charged in any State with treason, felony, ^r other 
 crime, who shall flee from justice, and be found in another State 
 shall, on demand of the executive authority of the State from 
 which he fled, be delivered up to be removed to the State hav- 
 ing jurisdiction of the crime, {Const. U. S. Art. 4, sec. 2.) 
 Under this section of the Constitution, a law has been passed in 
 this / State, by which certain judicial officers, among whom are 
 Justices of the Peace, are clbthed with power to issue process 
 for the apprehension of a person charged in any State or Terri- 
 tory of the United States with treason, felony, or other crime, 
 who shall flee fi'om Justice, and be found within this State, 
 {Laws of 1839, chap. 350, § 1.) 
 
 The proceedings, under this act are similar in all respects to 
 the proceedings under the statute providing for the arrest and 
 commitment of persons guilty of offijnces within this State, and 
 which have been fully considered in another portion of this 
 work. {Laws of 1839, cJmp. 350, § 2; ante, p. 536, et seq.) 
 The warrant must be issued and served in the usu^l manner, aiid 
 the fugitive ^be brought before the Justice, and the examination 
 had, as in other cases. If it appears, from the examination, that 
 the person .charged has committed a criminal offence, and is a 
 fugitive from justice, the Justice must, by a warrant reciting thei 
 accusation, commit him to the common jail of the county, there 
 to be detained for such time, to be specified in the warrant, as 
 the Justice shall deem reasonable to enable such fugitive to be 
 arrested by vii'tne of the warrant of the Governor of this State, 
 issued 9,ccording to the act of Congress, upon thg requisition of 
 the executive authority of the State or territory in which the 
 fugitive committed the oflfence, unless such person shall give bail 
 as hereinafter mentioned, or until he shall be discharged by law. 
 {Laws of 1839, chaj). 350, § 3.) The prisoner may give bail, in 
 such suni as the Justice shall require, conditioned that he, will 
 appear before the Justice, at such time as to the Justice may 
 
FUGITIVES FROM JUSTICE. 781 
 
 seem reasonable, and will deliver himself up to be arrested on 
 the warrant of the Executive of this State. (Laws of 1839, 
 chap. 350, § 4.) 
 
 § 255. WajTani to commit a Fugitive from Justice. 
 County, ^ ^^^ 
 
 Town of 
 
 To any constable of said county, and to the keeper of the com- 
 
 inon jail of the said county, greeting: 
 
 Whereas A B, of , in the county of , did, on the 
 
 day of , 18 , complain on oath before me, J 
 
 H B, a Justice of the Peace of the said county of , of 
 
 one C D, and accuse him, the said C D, of having, oh the 
 day of , 18 , comnjitted the crime of [state the 
 
 offence,] at , in the county of , and State of , 
 
 and of having thereafter fled frona the said State of ; 
 
 And whereas, by virtue of a warrant of arrest by me duly 
 issued, the said C D was arrested and brought before me this 
 day, to answer the said 'charge, and it appears to me from an 
 examination of the said A B, [and others,] on oath, in the pres- 
 ence of the said C D, in regard to said charge, [and from an ex- 
 amination of the said C D,] and from an examination of the 
 whole matter, that there is probable cause to suspect that the 
 said ofi'ence has been committed, and that the said C D is guilty 
 thereof, and is a fugitive from justice from the said State of 
 
 ; And whereas the said C D has neglected to give bail in 
 the sum of dollars, as required by me, conditioned to 
 
 appear before me oh th^ day of , 18 , and to 
 
 deliver himself up to be arrested upon the warrant of the 
 executive of this State, if one shall be issued to arrest him: 
 These are, therefore, to command you, the said constable, forth- 
 with to take and deliver the said C D into the custody of the 
 keeper of the said jail; and you, the said keeper, are hereby 
 required t-o receive the said C D into custody in the said jail, 
 aiid him there safely keep, until the day of , 
 
 .18 , unless he shall give the bail above required by me, or 
 until he shall be discharged by law. 
 
 Witness my hand and seal, this day of , 18 . 
 
 J H B, [l. s.] 
 Justice of the Peace. 
 
 § 256. Bond by a Fugitive from Justice. 
 
 Know all men by these presents, that we, A B and C D, 
 are' held and firmly bound unto, the people of the State of New 
 York, in the sum of dollars; for which payment, well and 
 
78-2 NEW YORK JUSTICE. 
 
 truly to be made, we bind ourselves, our heirs, executors, and 
 administrators, jointly and severally, firmly by these presents'. 
 Sealed with our seals, and dated the day of , 
 
 18 .* 
 
 Whereas the above bounden C D has been arrested, and this 
 day brought before J H B, a Justice of the Peace of 
 county, charged with being a fugitive from justice from the 
 State of , and with having, on the day of 
 
 , 18 , committed the crime of, [staie (he crime,] in the 
 town of , in the county of , iu the State of 
 
 ; Now, therefore, the condition of this obligation is such, 
 that if the said C D shall personally be and appear before the 
 spd J H B, on the day of , 18 , and shall 
 
 deliver himself up to be arrested upon the warrant of the Exec- 
 utive of this State, then this obligation to be void; otherwise, 
 of force. ' 
 
 Taken, subscribed and acknowledged ) A B. [l. s.l 
 
 before me, the day of , 18 . ^ C D. [l. s.J 
 
 J H B, Justice, &c. 
 
 The Justice before whom the prisoner has been examined and 
 committed, must immediately give a written notice to the dis- 
 trict attorney of the county, of the name of the prisoner, and 
 the cause of his arrest, {Laws of 1839, chap. 350, § 5,) and must 
 also make a return to the next Court of Sessions of Ms pro- 
 ceedings in the premises, (id. § 7.) * 
 
 The prisoner is to be discharged from his detention or bail, 
 unless, at or before the expiration of the time designated in the 
 warrant of commitment, or in the condition of the bail bond, he 
 is demanded or arrested by a warrant of the Executive of this 
 State, [id. § 6.) 
 
 Justices <ff the Peace are also, by an act of Congress, (1 U. 
 iS. Statutes at Large, 92, § 33. Act of Sept. 2Uh, 1789,) 
 clothed with power to arrest, and imprison or bail, persons 
 charged with any crime or offence against the United States. 
 The provisions of that act are as follows: "And be it further 
 enacted, that, for any crime or offence against the United States, 
 the offender may, by any Justice or Judge of the United States, 
 or by any Justice of the Peace, or other magistrate, of any of 
 the United States where he may be found, agreeably to the 
 usual mode of process against offenders in such State, and a,t 
 the expense of the United States, be arrested, imprisoned or 
 
FUGITIVES FROM JUSTICE. 783 
 
 bailed, as the case may be, for trial before such Court of the 
 United States as, by this act, has cognizance of the offence. 
 And copies of the process shall be returned as speedily as may 
 be into th6 clerk's office of such Court, together with the recog- 
 nizances of the witnesses f6r their appearance to testify in the 
 case; which recognizances the magistrate before whom the ex- 
 amination shall be, may require, qn pain of imprisonment, And, 
 upon, all arrests in criminal cases, bail shall be admitted, except 
 where the punishment may be death, in which cases it shall not 
 be admitted but by a Judge or Justice of the Federal Courts." 
 
 Under this act, a Justice of the Peace has power to issue 
 process for the arrest of offenders against tjhe laws of the United 
 States, irrespective of the locality where the offence was com- 
 mitted; and the proceedings subsequent to the arrest are similar 
 to those which ensue upon, the arrest of a person charged with 
 an offence against the laws of this State, and which have 
 already been considered in a preceding part of this work. 
 [Ante, p. 571, et seg.) The Justice has power to take recogni- 
 zances from the witnesses in the same manner as in cases under 
 the State laws, and may imprison the witn,esses if they refuse to 
 give the recognizances. {Ante, pp. 578, 580.) 
 
 There is one difference, however, between the provisions of 
 the act of Congress, above quoted, and those, of our own statute, 
 in respect to thfe authority of Justices to take bail, which is 
 worthy of notice. Under the act of Congress, the Justice may 
 take bail whenever the offence is not punishable with death; 
 while, under our own law, he cannot take bail if the offence is 
 a felony punishable by imprisonment in the state prison for a 
 period exceedifig five years. (2 H. S. 710, § 29.) 
 , Copies of the process issued by the Justice, togeftter with the 
 recognizances taken by him under this act, both from the wit- 
 nesses and the prisoner, are to be immediately returned into the 
 clerk's office of the Court of the United States having cegnizance 
 of the offence, and they must be taken for the appearance of the 
 prisoner in such Court. The Cii'cuit and District Courts of the 
 United States have concurrent jurisdiction of all crimes and 
 offences cognizable under the' authority of the United States, the 
 punishment of which is not capital. When capital, the Circuit 
 Court alone has jurisdiction. (5 IT. B. /Statutes at Large, 517; 
 1: i&^ 91.) For every offence, therefore, against the laws of the 
 
^784 NEW YOEK JUSTICE. 
 
 United States, for ■which the justice can take bail, he may take it 
 for the ai")pearance of the prisoner at either the Circuit or District 
 Court. The recognizances, however, should be taken to appear 
 at the next term to be held, of whichever Court it may be. 
 In the Southern District of New York, which includes all 
 that part of the State south of the counties of Albany, 
 Eensselaer, Schenectady, Schoharie and Delaware, (3 U. S. 
 Statutes at Large, 120, 414,) except Kings, Queens, Suffolk 
 and Eichmond, the Courts are held as follows: Circuit Courts 
 in each year on the first Monday in April, third Monday 
 in October, and last Mondays in February, at the City Hall, in 
 the city of New York. District Courts in the Southern District 
 are held in each year,' on the first Tuesday of every month, at 
 the same place. {Law's U. S. Ooiirts, 822, 830.) In the North- 
 ern District, which includes the residue of the State, except the 
 Eastern District, Circuit Courts are held, in each year, at Albany, 
 on the third Tuesdays in May and October, and at Canandaigua, 
 on the Tuesday next after the third Monday in Jtme. The Dis- 
 trict Courts in the Northern District are held as follows, in each 
 year: At Albany, on the third Tuesday in January; at Utica, on 
 the second Tuesday in July; at Rochester, on the third Tuesday 
 iji May; at Auburn, on the third Tuesday in August; at Buffalo, 
 on the second Tuesday in November; and one tei'm annually, at 
 fiuch time and place within the comities of St. Lawrence, Clinton, 
 or Frasiklin, as the District Judge appoints. {Lake's U. S. 
 Courts, 822, 830.) In the Eastern District of New York which 
 includes the counties of Kings, Queens, Suffolk and Richmond, 
 the Circuit Courts are held on the first Wednesday of each 
 month in Brooklyn: and the District Courts are held at the 
 same time and in the same city. (Laws of the U. S, 1865, 
 jp^eb. 25.) The clerk's offices of the Circuit and District Courts 
 of the Southern District are at New York; of the Circuit Court 
 of the Northern District, at Utica;' and of the Distriet Court of 
 that District, at Buffalo. (Law's U. 8. Courts, 822, 830.) The 
 clerk's offices of the Circuit and District Court of the Eastern 
 District are at Brooklyn. (Laws of U. 8. of 1865, Feb. 25.) 
 
 Fees. 
 
 The pi;oceedings for the apprehension of offenders, treated of 
 in this Chapter, are in all respects similar to those imder the 
 
GAMING AND LQTTBRT fICKETS. TSjS 
 
 statute of this State, heretofore considered, for the arrest and 
 comnaitment of persons guilty qf offences within this Sta,te. 
 The table of fees applicable to those proceedings h^ already 
 been given. (Ante, p. 677, et seq.) 
 
 CHAPTER XII. 
 
 OF GAMING AND LOTTERY TICKETS. 
 
 ,The act entitled, "An act more effectually to suppress 
 gambling," and. which makes it illegal to keep a place 
 for gambling, or to keep gambling devices, or to sell lot- 
 tery tickets, provides, that if an affidavit shall be filed with 
 the magistrate or Police Justice of any town or city before 
 whom complaint sha,ll have been m^49 of ^^ offence against the 
 provisions of that act, stating that the affiant has reason to be- 
 lieve, and does believe, that the person charged in the com- 
 plaint, has upon his person, or at any other place named in the 
 affidavit, any specified articles of personal property, or any 
 gambling table, device or apparatus, or any lottery policies, 
 public or private, the discovery of which migh,t lead to estab- 
 lish the truth of the charge, the magistrate or Justice may, in 
 his discretion, by warrant, conomand the officer who is autho- 
 rised to arrest the person so charged, to make diligent search 
 for such property and table, device or apparatus, and, if found, 
 to brinsr the same before the magistrate or Justice. The officer 
 seizing the property must deliver it to the magistrate or Justice, 
 who is to take possession of it, and be responsible fpr it, until 
 the discharge, commitment, or letting to bail, of the person 
 chai-ged. If the person charged is committed or let to bail, the 
 officer must retain the property, subject to the order of the 
 Court before which the offender may be i;equired to appear, 
 until his discharge or conviction. {Laws of 1851, chap. 504, 
 
 hh 1, 2, 3.) 
 Any Justice of the Peace or Police Justice, upOr\a complaint 
 50 
 
786 
 
 NEW YORK JUSTICE. 
 
 made on oath that any gambling table, apparatus, establishment, 
 • or device, is kept by any person for the purpose of being used 
 to win or gain money or other property, or by any other person, ' 
 or any lottery policies of any lotteries, may issue his warrant, 
 commanding any sheriff or constable to whom the same shall be 
 directed, within the proper jurisdiction, after demanding en- 
 trance, to break open and enter any house or place wherein such 
 gambling table, establishment, apparatus, or device, shall be 
 kept, and to seize and deliver the same to the mayor of the city, 
 president of the village, supendsor of the town, or clerk of the 
 county where such seizure shall be made, who must keep the 
 same until the term of the Court at which the case shall be 
 tried. {Laws of 1851, chap. 504, § 4.) 
 
 The Form of warrant heretofore given can be^easily adapted 
 to a case arising under the foregoing provisions. {Apie. p. 
 532.) And it should be under seal. {People vs. Holcomb, 3 
 Park Or. QU.) 
 
 Fees. 
 
 The fees allowed by law for services tmder this statute ate as 
 follows: 
 
 To Justices.] An oath or affirmation, twelve and a half cents; 
 
 A warrant of Seizure and arrest, nineteen cents; 
 
 l)rawing, copying and certifying a recognizance, twenty-five 
 cents; 
 
 Taking and certifying the acknowledgment of any instrument 
 which is required to be acknowledged before a Justice, twenty- 
 five cents; 
 
 A warrant of commitment, nineteen cents. (2 R. 8. 637, ^ 28.) 
 
 To Constables.] Serving a warrant, nineteen cents; 
 
 Arresting and committing any person pursuant to process, 
 fifty cents; 
 
 Mileage, going only, for each mile, six cents, (id. 647, § 40.) 
 
HABITUAL DRUNkAUDS. 787 
 
 CHAPTER XIII. 
 
 OF HABITUAL DKUNKAEDS. 
 
 Whenevbe the overseers of the poor of any city or town dis- 
 cover any person to be an habitual drunkard, they must, by 
 writing under their, hands, designate, and describe such drunkard, 
 and, by a written notice signed by them, require every merchant, 
 distiller, shop-keeper, grocer, tavern-keeper, or other dealer in 
 spirituous liquors, and every other person residing within the 
 city or town where the drunkard resides, or in any other city or 
 town near to or adjoining such city or town, not to give or sell, 
 under any pretence, any spirituous liquors to such drunkard. 
 If, after the personal service of such notice, any sWch person 
 knowingly gives, or sells, in any manner whatever, spirituous 
 liquors to airy such drunkard, except by the personal direction, 
 or on the written certificate, of some physician regularly licensed 
 to practice according to the laws of this State, stating that such 
 liquor is necessary for the preservation or recovery of the health 
 of such drunkard, he forfeits for every offencq, the sum of ten 
 dollars, for the use of the poor of the town where the drunkard 
 resides. (1 B. S. 637, §§ 1, 2; Laws of 1840, chap. 229, § 3.) 
 Every person thus notified is Kable to this forfeiture, whenever 
 his clerk, or agent, or any member of his family, violates the 
 statute, by knowingly giving or selling to an habitual 'drunkard 
 any spirituous liquors, (id. § 2.) 
 
 Where the parent or guardian of a minor under sixteen years 
 of age, or the master of a servant or apprentice, has been desig- 
 nated as an habitual drunkard, no person licensed to sell strong 
 or spirituous liquors or wines, can, without the consent of the 
 overseers of the poor of the city or town where such minor ^r 
 apprentice or servant resides, sell to such minor or apprentice 
 or sei-vant any such liquors or wines, under a penalty of five 
 dollars, to be recovered by the overseers of the poor, (id.; 1 
 R. S, 681, ^ 17.) 
 
788 NEW TOBK JUSTICE. 
 
 ss: 
 
 ^ 257. Notice designating Habitual Drunkard, &c. 
 Town of , 
 
 County, 
 
 "We, the undersigned. Overseers of the Poor of said town, 
 having discovered A B, of said town, to be an habitual drunk- 
 ard, do hereby designate him as such habitual drunkard, and 
 describe him as follows: \de^cri]ition:~\ And every merchant, 
 distiller, shop-keeper, grocer, tavern-keeper, or other dealer in 
 spirituous liquors, and every other person residing within the 
 said town, or in any city or town near to or adjoining said town, 
 is required not to give or sell, under any pretence, any spirit- 
 uous liquors to the said A B. 
 
 Dated at , this day of , 18 . 
 
 CD, 
 E F, 
 Overseers of the Poor. 
 
 Any person so designated by the overseers of the poor as an 
 habitual drunkard, may apply to any Justice of the Peace of 
 the city o#town in which he resides, for process to summon a 
 jury to try and determine such fact of drunkenness. On such 
 application, the Justice must immediately give a written notice 
 thereof to the overseers of the poor, specifying the time and 
 place where the parties are to meet for the trial of such fact; 
 and must issue a venire to a constable, to summon a jury of 
 twelve persons competent to serve on juries, to appear at the 
 said time and place, for the purpose of trying the said fact. (1 
 B. S. 637, §§ 4, 5.) 
 
 § 258. Notice to Overseers by Justice. 
 
 To C D and E F, Overseers of the Poor of the town of : 
 
 You are hereby notified that A B, who has been designated 
 by you as an habitual drunkard, has applied to me for a process 
 to suminon a jury to try and determine the fact of such drunk- 
 enness; and that I have fixed upon the day of 
 instant, at o'clock in the noon, at my office in said town, 
 as the time and place for such trial. 
 Dated , this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 § 259. Venire. 
 County, ss: 
 To any constable of the town of , in said county, greeting:. 
 
 You are hereby commanded, in the name of the people of 
 
HABITUAL DRUNKA.RDS. 789 
 
 the State of NeAv York, to summon a jury of twelve persons, 
 competent to serve on juries, to appear at my office, m , ' 
 
 , aforesaid, on the day of instant, at o'clock in the 
 
 noon, to try the fact, whether A B, of said town, is an 
 habitual drunkard, he having been designated as such by the 
 Overseers of the Poor of the said town; and you will have then 
 there a panel of the names of the ju»ors you shall so summon, 
 and this precept. 
 
 "Witness my hand, this day of , 18 . ; 
 
 G H, Justice of the Peace. 
 
 The jury are to be summoned, and returned, and six of them 
 to be ballotted for, and sworn well and truly to try the fact 
 of the alleged drunkenness, in the same manner as for the trial 
 of issues in actions brought before a Justice of the Peace; and 
 witnesses are to be summoned, and their attendance and testi- • 
 mony enforced, and they are to be sworn and examined before 
 the jury, ,in like manner as in such actions. (1 H. S. 637, § 5.) 
 
 ^ 260. Juror's Oath. 
 
 % 
 You do swear that you will well and truly try the fact of the 
 
 alleged habitual drunkenness of A B, and a true verdict give, 
 
 according to evidence. 
 
 § 261. Oath to Witness. 
 
 You do swear, that the evidence you shall give, touching the 
 fact of the habitual drunkenness of A B, shall be the trhth, the 
 whole truth, and nothing but the truth. 
 
 The jury must hear the proofs and allegations offered on both 
 sides, and proceed, in all respects as in trials at law, to render 
 their verdict. The Jilstice must enter the verdict in a book to 
 be kept by him for that purpose. (1 R. 8. 637, § 6.) This 
 verdidt, or an attested copy of it, is presumptive evidence of the 
 ftict of drunkenness as thereby found, in any action between the 
 overseers of the poor and any person prosecuted by them for 
 the penalty above imposed, {id. § 7.) 
 
 If the jury, by their verdict, find the person demanding the 
 trial to be an habitual dl-unkard, the Justice must enter judg- 
 ment asainst him, and award execution for the costs of the over- 
 seers of the poor in attending the trial, in the same manner as 
 jn civil, actions, {id. ,^,8.) 
 
790 NEW YOKK JUSTICE. 
 
 § 262. Uxecution against the DrunJeard. 
 
 County, ss: 
 To any constable of said county, greeting: 
 
 Whereas A B of , in said county, was designated and 
 
 described by C D and E F, Overseers of the Poor of said town, 
 as an habitual drunkard; and, by the verdict of a jury duly 
 empanneled, drawn and sworn, before me, the undersigned Jus- 
 tice, upon the application of the said A B,* it is found that he 
 is an habitual drunkard; whereupon, I have rendered judgment 
 against the said A B, for the costs of the said Overseers in 
 attending the trial, amounting to the sum of dollars: 
 
 You are therefore hereby commanded, in the name of the Peo- 
 ple of the State of New York, to levy the said costs of the goods 
 and chattels of the said A B, (except such goods and ctmttels 
 as are exempt by law from execution,) and bring the money 
 which you shall collect, sixty days from the date hereof, before 
 me, at my office in , to render to said Overs,eers; [If 
 
 the drunkard is a male person, add Iiere: And if no such goods 
 and chattels, or not sufficient to satisfy this execution, can be 
 found, you are further required to take the body of the said A 
 B, and convey him to the common jail of said county, there to 
 remain until this execution shall be satisfied and paid.] 
 
 Witness my hand, this day of , 18 . 
 
 G H, Justice, &c. 
 
 If it is found that the person charged is not an habitual 
 drunkard, the Justice must enter judgment and award execution 
 for the costs of such persons against the overseers, unless it ap- 
 pears that the overseers acted in good faith, and had reasonable 
 cause to believe the person charged to be an habitual drunkard, 
 in which case no costs can be awarded against them, but each 
 party must pay their own costs. (1 B. S. 637, § 9.) 
 
 ^263. Execution against the Overseers. 
 
 County, ss: 
 To any constable of said county, greeting: 
 
 Whereas, A B, &c., [as in § 262, ^o the*, and then add/] it is 
 found that he is not an habitual drunkard; and, inasmuch as it 
 appeared to mo that the said Overseers of the Poor did not act 
 in good faith, and had not reasonable cause to believe the said 
 A B to be an habitual drunkard, I have entered judgment against 
 the said C D and E F, Overseers, for the costs of the said A B, 
 amounting to the sum of dolkrs: You are therefore 
 
HABITUAL DRUNKARDS. 791 
 
 hereby commanded, in the name of the People of the State of 
 New York, to levy the ^aid costs, &c., [as in § 262, to the end, 
 including the iw/prisonment clause, and varying as requisite.^ 
 
 If the overseers become satisfied that the drunkard has re- 
 formed, they may revoke and annul any notice given by them 
 or any of their predecessors. (1 R. 8. 637, § II.) 
 
 ■|ss: 
 
 ^264. Revocation hy the Overseers, where a Drunkard reforms. 
 
 Town of 
 
 County, 
 
 Being satisfied that A B, respecting whose drunkenness a no- 
 tice has heretofore been given by us, [or, by C D and E F, Over- 
 seers of the Poor of said town,] has reformed and become tem- 
 perate, we do hereby revoke and annul the said notice. 
 
 Dated, &c., [as in § 2571] 
 
 Where there ar6 two overseers of the poor in a town, they 
 must both act in these proceedings. 
 
 Fees. 
 
 The fees allowed by law for services under this statute are as 
 follows: 
 
 To Justices.] Every subpoena, six cents; 
 
 Administering an oath or afiirmation, twelve and a half cents; 
 
 A precept to summon a jury, thirty-seven and a half cents; 
 
 Swearing a jury, twenty-five cents; 
 
 Hearing the matter concerning which the jury is summoned, 
 fifty cents; . ' 
 
 Receiving and entering theil- verdict, twelve and a half cents; 
 
 An execution, nineteen cents, (id. § 28, 29.) 
 
 To Jurors.] Each juror, twelve and a half cents, {id. 643 
 
 h 37.) 
 
 To Constables.} Summoning a jury, one dollar; 
 
 Attending such jury when required, fifty cents; 
 ■ Servino' an execution, two and a half cents per dollar; 
 
 Advertising goods and chattels for sale oh an execution, two 
 
 dollars;, , ■ 
 
 - If the execution be stayed or settled after advertising and 
 before sale, one dollar; 
 . Eeturning an execution, sixty-two and a half cents. 
 
792 NEW YORK JtFSTICE. 
 
 The above fees to constables are the same as those allowed 
 to sheriifs'for simikr services. (1 R. 8. 647, § 40; id. 645, § 38.) 
 
 To Witnesses.^ Each witness, for each- clay's attendance, 
 fifty cents; 
 
 Mileage, four cents a mile each way, if he resides more than 
 three miles from the place of attendance. {Laws of 1840, 
 ckap. 386, % 8.) 
 
 CHAPTER XIV. 
 
 OF HAWKEES AM) PEDLEKS. 
 
 The statute prohibits every person from traveling through 
 the State, and peddling any goods, wares, and merchandise, of 
 the growth, produce, or manufacture of any foreign country, 
 unless he shall have obtained a license as a hawl^er and pedler, 
 as therein directed. (1 It. 8. bT6, § 1.) Every person so 
 trading without license, or trading contrary to the terms of his 
 license, forfeits, for each offence, the sum of twenty-five dollars, 
 for the use of the poor of the town in which the offence was 
 committed. (1 B. 8. 576, § 6.) If the hawker or pedler has 
 a license, which he refuses to produce, on demand, to any 
 officer or citizen, he forfeits, for each offence, the sum of ten 
 dollars, to the overseers of the poor of the town in which the 
 demand was made, for the use of the poor; and if after notice, 
 he refuses or neglects to pay the last named penalty, he must 
 be committed by the Justice before whom the conviction is had, 
 to the jail of the county where the offence was committed, for 
 the term of one month, (id. § 7.) 
 
 Thei proceedings upon atrial for a violation of this statute 
 are the same as in other cases, and the eommitment may. be in 
 the following JftMm: 
 
|ss: 
 
 HAWKEKS AND PEDLERS. 793 
 
 § 2&5. Commitment of a Hawker or Pedler, for refiising to pay 
 the Penalty for not showing his License. 
 
 County, 
 
 Town of 
 To any constable of said county, and to the keeper of the com- 
 mon jail of the said county, greeting: 
 
 Whereas, complaint on oath has this day been made before 
 me, J H B, a Justice of the Peace of the said county, by O P 
 and Q E, Overseers of the Poor of ithe said town, that C P, 
 [state the offence, specifying the facts of the refusal to produce 
 license f\ And whereas, the said C D was duly convicted before 
 me of the said offence, and was thereupon adjudged by me to 
 forfeit the sum of ten dollars to the Overseers of the Poor of 
 the said town, for the use of the poor therein; And whereas, 
 the said C D, although duly notified of the said conviction, 
 has refused and neglected to pay the amount so forfeited,: 
 These are therefore to command you, the said constable, forth- 
 with to take the said C D, and deliver hirn to the keeper of the 
 said jail; and you, the said keeper, are hereby required to 
 receive the said C D into your custody in said jail, and him 
 there safely keep for the term of one month. 
 
 Given under my hand, this day of , 18 . 
 
 J H B, Justice of the Peace. 
 
 Any citizen may apprehend and detain any person who is 
 found trading as a hawker or pedler without: a license, or con- 
 ti-ary to the terms of his license, or who refuses to produce his % 
 license when demanded, and convey him before any Justice of 
 the Peace in the town or county in which he shall be appre- 
 hended. (1 i2. 8. 576, \ 8.) By a subsequent act, it is made 
 the duty of the overseers of the poor to enforce the provis- 
 ions of this statute in the manner therein prescribed, whepeyer 
 ..any violation thereof within their respective towns comes to th^ir 
 .knowledge. [Laws- of 1840, chap. 70, § 3^) 
 
 It is the duty of the Justice, if a sufficient license to authorize 
 such trading be not produced to him, and the fact of trading be 
 proved, either by the confession of the person apprehended, or 
 the oath of competent witnesses, to convict the offender of such 
 offence against the statute as is confessed or proved; and to. issue 
 his warrant on each conviction, directed to some constable pf 
 .the county in which the conviction is had, commanding him to 
 cause thei sum of twenty-jfive dollars, -with costs not to exceed^ 
 
 V 
 
794 NEW YORK JUSTICE. 
 
 five dollars, to be forthwith levied, by distress and sale, at pub- 
 lic vendue, of the goods, wares, and merchandise of the offender. 
 (1 R. 8. 576, \ 9.) 
 
 § 266. Warrant to collect a Penalty from a Hawker or Pedler. 
 
 County, ss: 
 To any constable of said county, greeting: 
 
 Whereas A B has been this day, upon competent testimony, 
 \or, upon his own confession,] duly convicted before me, J H B, 
 a justice of the Peace of the said county of \here insert the 
 
 offence, the date, and the articles soM,] for which offence he was 
 adjudged by me to forfeit the sum of twenty-five dollars; And 
 whereas, the cost of his conviction were fixed by me at \not ex- 
 ceeding five] dollars; which forfeiture and costs, the said A B, 
 although duly notified thereof, has not paid: These are therefore 
 to command you to cause the said sum of twenty-five dollars, 
 and the said sum of dollars, costs, to be forthwith levied by 
 distress and sale, at public vendue, of the goods, wares, and 
 merchandise of the said A B, and to bring the moneys so col- 
 lected before me at my oflice in the -town of , in said 
 county. 
 
 Given under my hand, this day of , 18 . 
 
 J H B, Justice of the Peace. 
 
 The moneys collected by virtue of this warrant, exclusive of 
 costs, are to be paid by the Justice to the overseers of the poor 
 of the town in which the offence was committed, (id.) 
 
 In cases of prosecutions under this statute, for the recovery 
 of the penalties thereby given, no costs are to be allowed to the 
 defendant, if it appears that, before the commencement of the 
 prosecution, he refused to produce his license, or to disclose his 
 name when lawfully required; nor, in such case, is he entitled 
 to maintain any action against the person prosecuting him, or 
 the constable or other persons by whom he may have been ap- 
 prehended, or the Justice by whom any warrant or other pro- 
 cess may have been issued agtiinst him, or before whom he may 
 have been tried, for any of their acts in so prosecuting, appre- 
 hending, or trying him. (1 R. S. 576, § 10.) Every person 
 who is sued for instituting any proceedings under this statute, 
 or for doing any matter or thing pursuant to its provisions, 
 may plead the general assue, and give the special matter in evi- 
 dence; and, if the plaintiff fails in establishing his case, the 
 defendant is entitled to recover treble costs, (id. § 12.) 
 
COLLECTION OF HIGHWAY FINES. 795 
 
 No suit or prosecution for the recavery of the penalties im- 
 posed by- this statute can be maintained, unless it appears to be 
 brought within sixty days after the commission of the offence 
 charged. (1 B. S. 576, i^ 11.) 
 
 Fees. 
 
 The fees' allowed by law for services under this statute are the 
 same as are allowed in civil actions for like services, but they 
 can in no case exceed five dollars. (2 id. 480, § Ij 1 id. 576, 
 § 9.) 
 
 The following services, however, do not seem to be provided 
 for by the fee bill in civil suits: 
 
 To Jitstices.] A warrant of commitment, nineteen cents. 
 (2 id. 637, § 29.) 
 
 To Oonst^Ies.] Arresting and committing any person pur- 
 suant to any process, fifty cents; 
 
 Mileage, going only, for each mile, six cents, {id. 647, § 40.) 
 
 CHAPTER XV. 
 
 OF HIGHWAYS AND EOADS. 
 
 It is proposed to consider, in this Chapter, only those provi- 
 sions of the statutes relative to highways, roads and bridges, which 
 regulate ^he powers and duties of Justices of the Peace. A con- 
 sideration of the powers and duties appertaining to the offices 
 of overseers and commissioners of highways would be foreign 
 to the scope of this work. 
 
 1. Collection of Fines for not working on Highways. 
 
 The fine for a refusal or neglect to appear and work, when 
 notified by an overseer of highways, is one dollar for each day, 
 .and twelve and a half cents for every hour any person or his 
 substitute may be in default. Every person or substitute, re- 
 maining idle, or not working faithfully, or hindering others from 
 work, is liable to be fined one dollar for each ofience. If a per- 
 
796 NEW YQKj: JUSTICE. 
 
 son, requii'eic^ to furnish ^ team, carriage, man, or inaplempnts, 
 neglects or refuses to comply, he may be fined three dollars f pr 
 each day, , for wholly omitting to comply with the reqvusition;. 
 and one dollar for each day, for omitting to furnish a cart, wagon, 
 or plough, or a pair of horses, or oxen, or a man to manage the 
 tejim. Every overseer of highways is required to make com- 
 plaint, on oath, to one of the Justices of the Peace of the town, 
 within six days after any person assessed and notified is guilty 
 of any refusal and neglect, for which a penalty or fine is pre- 
 scribed, unless some satisfactory excuse be rendered. (1 It. 8. 
 510, §§ 38 to 41.) 
 
 Corporations are liable to the same penalties as individuals, 
 for every day's work required, and for every default of any sub- 
 stitute sent by thena. {Laws of 1837, chap. 431.) 
 
 ^ 267. Complaint against a JPersonfoT refusijvg to WorJs- 
 
 County, ? g. 
 Town of , ^ ■ 
 
 I,^ P, Overseer of Highways for road district number , 
 in said town, hereby make complaint on oath to G H, a Justice 
 of the Peace of said town, that I gave Richard Roe, who resides 
 in said district, and is assessed to work on highways therein, 
 twenty-four hours' previous notice, to appear with a shovel, on 
 the ^ day of instant, at 8 o'clock, A. M., at the 
 
 dwelling house of E F, for the purpose of working qn the 
 highways in said (|istrict, under my direction as such Overseer; 
 and tjiat the said Richard Roe neglected to appear, either in 
 person, or by an able bodied man as a substitute, and has also 
 neglected to pay the commutatipn money for said work, [or, 
 appeared, pursuant to notice, but worked only hours, and 
 
 then departed; or, appeared, pursuant to notice, but remained 
 idle, or^ did not work faithfully, or, hindered others from work- 
 ing;] and has not rendered any satisfactory excuse to rae for 
 such neglect, [o»', conduct.] O P, Overseer. 
 
 Sworn to before me, this ) 
 day of ,18 , j 
 
 G H, Justice of the Peace. 
 
 \ 268. Complaint against a person for not furnishing a Team. 
 
 County, ) gg. 
 Town of , J ■ 
 
 I, O P, Overseer of Highways for road district number , 
 in said i town, feereby njak^ complaint to G H, a Justice of ti^e 
 
COLLECTIOlir OF HIGHWAY FINES. 797 
 
 Peace of said town, tliat I gave to John Jones, T^ho resides ift 
 said district, and is assessed to work days on the highways 
 
 therein, and has k cart, [or, wagon, or, plough,] with a pair of 
 horses, [or, oxen,] and a rflsin to manage them, and who has not 
 commuted for his said assessment, twenty-four hours' previous 
 notice, to fufnish, on the day of , 18 , at eight o'clock, 
 A. M., at the house of E F, in said district, a wagon with horses, 
 [or, a cart with a yoke of oxen,] and a man to manage them, for 
 the purpose of working one day on the road in said district, 
 under my direction as such Overseer; and the said Eichard Eoe 
 has neglected to furnish such wagon and horses, [or, cart and 
 oxen,] and a man to manage them, and has also neglected to pay 
 the commutation money for said work, and has not rendered any 
 satisfactory excuse to me for such neglect. 
 Sworn, &c., [as in § 267.] 
 
 Any other Form of complaint, if required, may very easily 
 be prepared from either of the foregoing Forms. 
 
 The overseer is the judge of the delinquency of any party. 
 
 The Justice to whom any complaint is made, must forthwith 
 isstie a summons, directed to any constable of the town, requir- 
 ing him to summon the delinquent to appear forthwith before 
 him, at some place to be specified in the summons, to show 
 cause why he should not be fined according to law; for such re- 
 fusal or fieglect; which siunmons must be served personally, or 
 by leaving a copy at his present abode. {Bowton vs Neilson, 
 3 Johns. 474; Freeman vs. Cornwall, 10 id. 470; 1 R. 8. 510, 
 h 42.) 
 
 ^■|ss: 
 
 \ 269. Summons for refusing to Work. 
 
 Town of 
 
 County, 
 To any constable of said town, greeting: 
 
 Whereas, complaint on oath has been made before me, G H, 
 a Justice of the Peace of said town, by O P, Overseer of High- 
 Ways in road district number in said town, that Eichard 
 Eoe, Who resides in said district, and is assessed for highway 
 labor, and has been duly notified to perform such work, hsis 
 neglected to appear in pursuance of such notice, either in per- 
 son, or by an able bodied substitute, and perform such labor, 
 [or, as in § 267:] You are therefore hereby commanded, in the 
 name of the people of the State of New York, to summon the 
 Said Eichard Koe forthwith to appear. before me, at my office in 
 
798 NEW TORK JUSTICE. 
 
 said town, to show cause why he should not be fined according 
 to law, for such refusal or neglect, as in said complaint alleged. 
 Given under my hand, at , this day of , 
 
 18 . G H, Justice of the Peace. 
 
 A summons against a corporation may be issued for any num- 
 ber of penalties incurred previous thereto, and such process may 
 be served in the manner provided for the service of- a writ or 
 summons issued out of a Court of Eecord against a corporation. 
 {Laws of 1857, chap. 431, § 4; ante,f. 173.) 
 
 As this proceeding is a summary one, the officer serving the 
 summons should use reasonable diligence to find the person 
 proceeded against, in order that he may make a personal service. 
 But a service by copy is legal. If the defendant does not ap- 
 pear, the Justice must, upon proof of service of the summons, 
 impose the fine as a matter of course. 
 
 ^ 270. Return of Constable. 
 
 Personally served, [or, served by leaving a copy at the per- 
 sonal abode of the within named Richard Roe.] June 1st, 18 . 
 
 R F, Constable. 
 
 If, upon the return of the summons, no sufficient cause is 
 shown to the contrary, the Justice must impose such fine as is 
 provided for the offence complained of, and forthwith issue a 
 warrant, under his hand and seal, directed to any constable of 
 the town where the delinquent resides, commanding him to levy 
 such fine, with the costs of the proceedings, of the goods and 
 <ihattels of such delinquent. (1 R. 8. 510, § 43.) 
 
 § 271. Conviction endorsed on the Complaint. 
 
 €own of , ? gg. 
 
 County, J 
 The within named Richard Roe, having been duly summoned 
 to appear before me G H, the Justice within named, to show 
 cause why a iuie should not be imposed upon him for the offence 
 set forth in the within complaint, and no sufficient cause having 
 been shown by the said Richard Roe to the contrary, I do im- 
 pose a fine of ,- dollars, [or, as the case may 6e,] upon 
 the said Richard Roe, for the said offence, and do fix the costs 
 of this proceeding against him at dollars, and cents. 
 
COLLECTION OF HIGHWAY FINES. 799 
 
 § 272. Warrant to collect a Fine. 
 
 Town of , ? g. 
 
 Coilnty, 5 
 To any constable of said town, greeting: 
 
 Whereas, complaint was made to me, G H, a Justice of the 
 Peace of said town, by O P, Overseer of Highways for road dis- 
 trict number , in said town, that Eichard Roe, who was 
 assessed, &c.; \recite, as in the complaint f\ Whereupon a sum- 
 mons was issued by me, requiring the said Eichard Eoe to appear 
 before me at my office in , aforesaid, forthwith to show 
 cause why he should not be fined for such neglect, [or, refusal, 
 or, as the case may bef\ which summons was duly served and 
 returned to me; and the said Eichard Eoe not having shown 
 any sufficient cause to the contrary, I have imposed a fine of 
 dollars on him for his ofience, complained of as aforesaid, 
 and jSxed the costs of the proceedings on said complaint at 
 dollars and cents: You are therefore hereby commanded 
 to levy the said fine and costs, of the goods and chattels of the 
 said Eichard Eoe, and bring the said moneys before nie without 
 delay. 
 
 Witness my hand and seal, this day of j 18 . 
 
 G H, Justice, [l. s.] 
 
 The question, whether the complainant is an overseer of high- 
 Ways of the town, is a jurisdictional fact, and may be inquired 
 into in an action of trespass against him for taking property on 
 such a complaint. {Walker vs. Mosely^'h Denio, 102.) 
 
 No action will lie against a Justice or constable, for obeying 
 the requirements of this statute. They are mere ministerial 
 officers, having no judicial or discretionary power, and are, 
 therefore, not responsible for issuing or executing process di- 
 rected by the authority of persons having jurisdiction over the 
 subject matter. (Bouton vs. Neilson, 3 Johns. 474; Beach xs. 
 Furman, 9 id. 229.) 
 
 The constable to whom the warrant is directed must forthwith 
 collect the fine, and pay it over to the Justice by whom the war- 
 rant was issued, who must pay it over to the overseer who en- 
 tered the complaint. (1 J?. /S. 511, § 44.) The warrant is as 
 summary as the other proceedings, and no property is exempt 
 from seizure imder it. 
 
 The penalties collected from corporations are to be paid over . 
 
80.0 NEW TOKK JUSTICE. 
 
 by the constable to the commissioners of highways of the town, 
 {Laws of 1837, cMp. 431, §,4.) 
 
 2. Re-Assessment of Damages foe Laying out Highways. 
 
 • 
 
 Any person conceiving himself aggrieved by, or the commis- 
 sioner or commissioners of highways who are dissatisfied with, 
 any assessment made for the laying out, altering or discontinu- 
 ing any road or highway, in whole or in part, may, within 
 twenty days after the filing of the assessment, signify the same 
 by a notice in writing, which is to be served on the town clerk, 
 and on the opposite party, that is, the persons for whom the 
 assessments were made, or the commissioner or commissioners 
 of highways, as the case may be- This notice must ask for a 
 jury to re-assess the damages, and must specify a time, not less 
 than ten nor more than twenty days from the filing of the 
 assessment, when the jury will be drawn at the clerk's office of 
 an adjoining town of the same county, by the town clerk thereof, 
 and must be served upon the opposite party within three days 
 I after its service on the town clerk. It may be served personally, 
 or left at tbe ^welling house of the party, with some person in 
 charge thereof; or, if there is no such person, or the house is 
 closed, then by fixing the same upon the outer door of the 
 house. {Laws of 1847, chap. 455, ^ 3.) Three days' notice of 
 the tinie and place of the drawing of the jury must also be 
 given to the clerk of the adjoining town, -who, at the appointed 
 day and place, must deposit in a box the names of all such per- 
 sons, then residents of his town, whose names are on the last 
 list filed in his office of those selected and returned as jurors in 
 Courts of Eecord, as are not interested in the lands through 
 which the road is located, nor of Idn to either or any of the 
 parties. He must then draw from the box the names of twelve 
 p,ersons, and make a certificate of their names, and of the pur- 
 poses for which they were drawoi, and deliver the same to the 
 party first asking for the re-assessment, {id. § 4.) 
 
 The party receiving the certificate must, within twenty-four 
 hours thereafter, deliver the same to a Justice of the Peace of 
 the town wherein the damages are to be assessed. The Justice 
 receiving the certificate must immediately issue a summons to 
 one of the constables of his town, commanding him to summon 
 the persons named in the certificate. The summons must also 
 
KE-ASSESSMENT OF HIGHWAY DAMAGES. 801 
 
 Specify a time atid place at "which the persons sqmmoned are to 
 meet; but no such meeting can be had within twenty days from 
 the time of filing the assessment of damages in the town clerk's 
 office by the commissioner or commissioners of highways. 
 {Laws of 1847, chap. 455, § 5.) 
 
 § 273. Summons by the Justice. 
 County, ? 
 Town of , P®' 
 
 To any constable of the town of , in said county, greet- 
 
 ing: 
 
 You are hereby commanded to summon E B, M T, O E, &c., 
 &c., [name all the jurors drawn,] jurors regularly drawn by 
 E P, Town Clerk of the town of , to re-assess the dam- 
 
 ages for laying out [^or, as the case may be,] the highway Idescribe, 
 the. highway, as in the certificate of drawing.^ to meet at the 
 house of O P, in the town of , aforesaid, on the 
 
 day of next, \or, instant,] at o'clock in the 
 
 noon of that day, for the purpose above specified. 
 And have you then there this precept. 
 
 Given under my hand this day of 18 . 
 
 G H, Justice of the Peace. 
 
 At the time and place mentioned in the summons, the Justice 
 must draw, by lot, six of the persons summoned, who must be 
 free from all legal exceptions. The persons so drawn consti- 
 tute a jury to re-assess the damages, and must be sworn by the 
 Justice well and truly to determine and re-assess such damages 
 as shall be submitted to their consideration, {id. \ 6.) • 
 
 § 274. Oath to the Jurors. 
 
 You will well and truly determine and re-assess such dam- 
 ages as shall be submitted to your consideration; so help you 
 God. 
 
 After they are sworn, the jurors must view the premises, and 
 hear the parties, and such witnesses as they may ofier. The 
 witnesses must be sworn, in presence of the jury, by the Jus- 
 tices, {Laws (?/■ 1847, chap. 455^ \ 6,) and the oath to be admin- 
 istered to them may be in the following form: 
 
 § 275. Oath to Witnesses. 
 
 The evidence you shall give upon this re-assessment of dam- 
 ages for laying ©ut \or, as the case mag be] the highway in quea- 
 &1 
 
802 NEW YORK JUSTICE. 
 
 tion, shall be the truth, the whole truth, and nothing but the 
 truth; So help you God. [ Vary, %vhen necessary, as in § 43 arid 
 \ 44, ante, jjp. 295, 296.] 
 
 The Justice has no authority to control or interfere with the 
 deliberations or investigations of the jury. His duty is perform- 
 ed when he has complied with the requirements of the statute. 
 
 The jury are to deliver their verdict in writing, which the 
 Justice must certify; and it is then to be delivered to the com- 
 missioners of highw'ays of the town, (id.) The verdict is 
 final, {id.) 
 
 § 276. Verdict of the Jury. 
 
 County, ? g. 
 Town of 1 3 « 
 
 We, the undersigned, the jurors drawn, summoned and sworn 
 to re-assess the damages for laying out, [or, as the case may 5e,] 
 the highway, [describe the highway^ in pursuance of the order 
 of E F, Commissioner of Highways in and for the town of , 
 bearing date* the day of , 18 , having viewed the 
 
 premises, and heard the parties, and such witnesses as were 
 offered before us, do hereby re-assess the damages aforesaid, as 
 follows; To A B, the sum of dollars, for the damages sus- 
 tained by him by reason of the laying out, [or, as the case rnay 
 5e,] the said highway; to C D, the sum of, &c., [specify all the 
 parties to whom damages may he awarded.^ ' 
 
 In witness whereof, we have hereunto set our hands, this 
 day of , 18 . E B, ) 
 
 M T, \ Jurors. 
 ■ OE,J 
 
 &c., &c., 
 
 § 277. Certificate of the Justice. 
 
 County, ? gg. 
 Town of , ^ ■ 
 
 I, G H, one of the Justices of the Peace of the said town, do 
 certify that the above is the verdict of the jmy summoned by 
 my summons, and drawn and sworn by me to 'determine and, 
 re-assess the damages for thev laying out [or, as the case may 5e] 
 the highway mentioned in the said verdict. 
 
 Given' under my hand, this day of , 18 . 
 
 G H, Justice. 
 
removal of encroachments peom highways. 803 
 
 4. 'IIemoval of Obstructions and Encroachments from 
 
 Highways. 
 
 Whoever obstructs any highway, or fills up or places any 
 obstructions in any ditch constructed for draining the water 
 from any highway, is liable to forfeit, for every such offence, 
 the sum of five dollars. (1 R: 8. 521, § 102.) 
 
 The above provision relates only to obstructions of highways 
 or public roads, and not to obstructions of private roads. {Fow- 
 ler -^s. Lansing, 9 Johns. 349.) A plea of title is not a bar to 
 an action for the penalty. {Parker vs. Van Houten, 7 Wend. 
 145; Fleet vs. Toungs, id. 291.) 
 
 Any one who sustains special and particular damages or in- 
 jury by reason of the obstruction of a highway, may maintain 
 an action against the party causing the obstruction. {Hay vs. 
 The gphoes Co. 3 Barb. 42.) vluni t ; 
 
 . Anything that disturbs th^j s^ijtlijliude or easement of way of a 
 public road, is an obstructio,n.'\o4>ll persons, in the prosecution 
 of their lawful business, havei.the right to use a highway for 
 such purpose, but they caiinQt' obstruct it unne6essarily or un- 
 reasonably. The piling of luniber, stones, bricks, or saw-logs; 
 making excavations; blasting rocks; unloading wagons or drays; 
 ^nd the stopping of stages mwecessarily or unreasonably; are 
 all obstructions, for which the (persons causing them are liable. 
 {id.\ Weimore YS. Tracy, 14:- iWend. 250.) 
 ^ The process issued to compel the appearance^of the defendant 
 in an action to recover the penalty given by the statute for the 
 obstruction of a highway, must be endorsed as follows: 
 
 "According to the provisions of the statute concerning the 
 obstruction of highways and encroachments thereon, 1 Eevised 
 Statutes, Part I, Chapter XVI., Title 1, Article 5, ^ 102." 
 {Avery vs. Slack, 17 Wend. 85; .2 R. S. 482, § 7.) 
 
 Whoever injures any highway, by obstructing or diverting 
 any creek, watet-course, or sluice, or by drawing logs or timber 
 on the surface of any road or bridge, or by any other act, for- 
 feits, for every such offence, treble damages. (1 id. 526, § 130; 
 Byffert vs. Schenck, 23 Wend. 446.) ^ 
 
 In eyery case whei-e a highway hais been laid out, and the 
 same. is encroached upon by fences, erected by any occupant of 
 
804 NEW YOKE JUSTICE. 
 
 the land through which such highway runs, the commissioners 
 of highways of the town must, if in their opinion it be deemed 
 necessary, order such fences to be removed, so that such high- 
 way may be of the breadth origijially intended. The commis- 
 sioners making the order, must cause the same to be reduced to 
 writing, and signed. They must also give notice in writing,- to 
 the occupant of the land, to remove such fences within sixty 
 days. Every such order and notice must specify the breadth of 
 the ^oad originally intended, the extent of the encroachment, 
 and the place or places in which the same is. (1 R. 8. 521, 
 ^ 103.) The description of the encroachment in the order and 
 notice should be full and precise, and the extent of the encroach- 
 ment be specified, so thai the party served with the notice may 
 be enabled to comply with the order. (^Mott vs. Qom. of High- 
 ways of Rush, 2 Hill, 472.) Where there' is more than one 
 commissioner in a town, all must meet and deliberate on the 
 subject, and a majority may make the order. (Spicer vs. Slade, 
 9 Johns. 359; Fitch vs. Goms. of KirMand, 22 Wend. 132; 1 
 R. 8. 525, § 125; but see ^Tucker vs. Rankin, 15 Barb. 471.) 
 If the order is not signed by all the commissioners, it should 
 appear that all met and deliberated upon the subject of the 
 order, or were duly notified to attend a meeting of the commis- 
 sioners for the purpose of deliberating thereon, (id.) 
 
 The commissioners have no right to open a road, or to direct 
 it to be opened, until after the sixty days' notice has been given 
 to the owner to remove his fences; {IZelley vs. Horton, 2 Cow. 
 424;) and, if sued for opening such road, they must sho?v actual 
 notice. {Case vs. Thompson, 6 Wend. 634.) 
 
 If the removal of the encroachment, as required by the order 
 and notice, be not made within sixty days after the service of 
 the notice, the occupant to whom th6 same may be given forfeits 
 the sum of fifty cents for every day, after the expiration of that 
 time, during which the fences continue unremoved; and the 
 commissioners of highways may remove or cause to be removed 
 such encroachment, and the occupant of the premises must pay 
 to the commissioners of highways all reasonable charges there- 
 for, to be collected in the manner provided by law for collecting 
 peiialties for refusing or neglecting to perform highway labor, 
 Ac. (1 R. 8. 522. § 104; Laws of 1840, chap. 300, § 1; ante, 
 pp, 798, 799.) This provision does not do away, with the com- 
 
KEMOVAL OF ENCEOACHMENTS FROM HIGHWAYS. 805 
 
 moQ law remedy of abatement of a nuisance by the act of indi- 
 viduals, or abolish the remedj'' by indictment; the remedy nnder 
 the statute is only cumulative. ( Wetmo7'e vs. Tracy, 14 Wend. 
 250.) . ' 
 
 , If the occupant to -whom the notice to remove an encroach- 
 ment is given, denies such encroachment within five days, the 
 commissioners, or some one of them, must apply to some Jus- 
 tice of the Peace of the county, for a precept directed to some 
 constable of the town, to summon twelve freeholders thereof, to 
 meet at a certain day and place, to be specified in such precept, 
 and not less than four days after the issuing thereof, to inquire 
 into the premises. The constable to whom such precept may be 
 directed, must give at least three days' notice to ^he commis- 
 sioners of highways of the town, and to the occupant of the 
 land, of the time and place at which such freeholders are to meet. 
 (1 E. S. 522, § 105; Laws of 1840, chap. 300, § 2.) The com- 
 plaint may be made by one commissioner. {Bi-onson vs. Mann, 
 l3 Johns. 460.) The notice to the commissioners and occupant 
 may be given by the constable verbally, or it may be in writing. 
 
 ^278, Precept to summon freeholders, in c&se of an Encroq^h- 
 
 menf. 
 Coimty, ? g., 
 Town of ) 
 
 To any Constable of the said town, greeting: 
 
 You are hereby commanded to summon twelve freeholders of 
 the said to^ii of , to meet at the house of O P, in said 
 
 town, on the day of instant, at o'clock 
 
 in the noon, to inquire whether any encroachment has 
 
 been made, and by whom, on the highway, running by, [or, 
 through the land now occupied by C D, in said town: and to 
 give at least three days' notice to E F, the Commissioner of 
 Highways of said town, and to G D, of the time and place at 
 which the said freeholders are to meet; and have you then 
 there the names of the freeholders sunmaoned by you, and this 
 precept. 
 
 Given under my iand, this day of , 18 . 
 
 G H, Justice of the Peace. 
 
 The Justice should not annex to this precept a list of the 
 names of persons to be summ-oned. (Mott vs. The Commis- 
 sioners of Highways of Rush, 2 Hill, 472.) 
 
 On the return of the precept, the Justice who issued it shall 
 
806 NEW YORK JUSTICE. 
 
 preside at the trial, iu the same manner as upon the trial of ap 
 issue in a civil action commenced before him; six of the jurors 
 summoned shall be drawn and impaneled in the same manner 
 as upon trial by jury in civil actions before him, and he shall 
 have the power, and it shall be his duty to decide as to the 
 competency of jurors, the competency and admissibility of 
 evidence, and all other questions which may arise beforeShim, 
 in the same manner and with the like effect as upon a jury trial 
 in civil actions before him; and such Justice shall adjust and 
 determine the costs of such inquiry, and in case the jury shall 
 find an encroachment, he shall render and docket a judgment 
 to that effect, and for such costs against the person or persons 
 who shall have denied such encroachment; in case the jury 
 find iio encroachment, he shall render and docket a judgment 
 to that effect against the commissioner or commissioners prose- 
 cuting the proceedings, and also for such costs, together "with 
 the damages, if any, which may have been fixed by the jury, 
 and payment thereof shall be enforced by such Justice as in 
 other cases of judgments rendered by him. In case there 
 should be an appeal, it shall be the duty of such Justice, in his 
 return to such appeal,' to embrace copies of all the papers 
 made and served in the proceeding prior to issuing the precept 
 for such jury, and all the evidence and proceedings before him, 
 together with the finding of the jury and judgment entered 
 thereon. All the provisions of title eleven, chapters third and 
 fifth of the Code of Procedure are hereby extended to such 
 appeals, so far as the same are applicable thereto. {Laws of 
 1862, cMp. 243, p. 440.) 
 
 § 279. Oath to Jurors. 
 
 You, and each of you, do solemnly swear, that you will well 
 and truly inquire whether any encroachment has been made, 
 and by whom, on the highway now in question. 
 
 § 280. Oath to Witness. 
 
 You do swear, that the evidence you shall give in relation to 
 the encroachment on the highway now in question shall be the 
 truth, the whole truth, and nothing but the truth. 
 
 If the jury find that any encroachment has been hiade, they 
 must make and subscribe a certificate in writing, stating the 
 
KBMOVAL OF ENCEOACHMENTS FBOM HIGHWAYS. 807 
 
 particulars of the encroachment, and by whom it is made. 
 This certificate should state, clearly and precisely, the particu- 
 lars of the encroachment, so that the occupant may be able to 
 obey the order without any mistake. {Spicer vs. Slade, 9 
 Johtts. 359; Jf^itoh vs. Commissioners of Kirldand, 22 Wend. 
 132; Mott vs. Commissioners of Rush, 2 Hill, 472.) 
 
 ':\- 
 
 ^281. Certificate of Jury. 
 
 County, 
 Town of 
 
 "VVe, the undersigned, freeholders of said town,^ having been 
 summoned and assembled, on the da,y of the date hereof, at the 
 house of O P, in said town, pursuant to a precept issued on the 
 day of ,18 , by G H, a Justice of the Peace 
 
 of the said town, and having been duly sworn by said Justice, 
 on the application of E F, the Commissioner \or, A B, C D and 
 E F, the Commissioners] of Highways in said town, to inquire 
 whether any such encroachment on the public highway in said 
 town, as is specified in the order of said Commissioners, dated 
 the day of , 18 , has been made, and by whom; 
 
 and having heard the proofs and allegations produced and sub- 
 mitted, do certify,* that such encroachment has been made by 
 C D, the present o.ccupant, [or, by E T, the former occupant;] 
 Andr we hereby further certify, that the particulars of such 
 encroachment are as follows, to wit: That such encroachment 
 commences on the north line of said- road, \insert the descrip- 
 tion,] and that the rail fence along the land now in the occupa- 
 tion of the said C D, is upon and in the public highway, and is 
 an encroachment thereon. 
 
 In witness whereof, we have hereunto subscribed our names, 
 this day of , 18 . ST, 
 
 MN, 
 
 &c., Jurors. 
 
 The finding of the jury is conclusive evidence of the encroach- 
 ment. >(^?"o/i5o?i vs. Mann, 13 Johns. 460.) The certificate must 
 be filed'iil the office of the town clerk. (1 JR. S. 522, § 107.) 
 
 The occupant of the land, whether the encroachment shall 
 have been made by him, or by any former occupant, must 
 I'emove his fences within sixty days after the filing of the cer- 
 tificate. If he does not remove them, he is liable to forfeit 
 /fiftyL cents for every day after the expiration of the sixty days, 
 
808 NEW YORK JUSTICE. 
 
 that the encroachment remains. (1 R. 8. 522 §^ 104, 107.) But 
 he cannot be required to remove them, except between the first 
 day of April and the first day of November, (id. § 109.) The 
 occupant must also, within ten days, pay the costs of the inquiry. 
 {id. \ 107.) The Justice has power to fix the amount of the 
 costs; and his act in doing so is a judicial one, for which he 
 cannot be held responsible in a civil suit. {Voorhees vs. Mar- 
 tin, 12 Barb. 508.) If the costs are not paid within that time, 
 the Justice must issue a warrant to collect them. (1 R. 8. 522, 
 § 107.) The warrant must be under the hand and seal of the 
 Justice, and be directed to some constable of the town where 
 the occupant resides, commanding him to levy the costs of the 
 proceeding, of the goods and chattels of the occupant, (id. 
 510, § 43.) 
 
 § 282. Warrant to collect Costs of Proceedings upon an En- 
 croachment. 
 
 The People of the State of New York to any constable of the 
 town of , in the county of : 
 
 Whereas, E F, the Commissioner of Highways of the said town, 
 did, on the day of , 18 , make and subscribe an 
 
 order or certificate for the removal of a^bertain fence, as an 
 encroachment upoj the highway running through land in the 
 said town, in the occupation of C D, specifying the breadth 
 of the road, and the extent and place of the encroachment; 
 And whereas, said encroachment having been denied by said 
 occupant, a jury of twelve freeholders was, upon the applica- 
 tion of said Commissioner, by a precept issued by me, duly 
 summoned to inquire into the premises; and the said jury, 
 being duly assembled and sworn,, after due notice to said occu- 
 pant, as required by law, and having heard the proofs and alle- 
 gations produced and submitted by the parties respectively, 
 certified in writing, that an encroachment had been made by 
 C D, the occupant of said land; And whereas, the cost of said 
 inquiry amount to dollars and cents, which remain 
 
 unpaid: You are, therefore, commanded to levy the said costs, 
 of the goods and chattels of the said C D, and bring the same 
 before me without delay. 
 
 "Witness my hand and seal, the day of , 18 . 
 
 G H, Justice, [l. s.] 
 
 If the jury find that no encroachment has been made, they 
 must so certify; and they must also ascertain and certify the 
 
REMOVAL OP ENCROACHMENTS FROM HIGHWAYS. 809 
 
 damages which the then occupant has sustained by reason of 
 the proceedings, which, together with the costs, must be paid 
 by the Commissioners. (1 E, 8. 522, § 108.) 
 
 ^ 283. Cevtificate where no Encroachment is found. 
 •County, \ gg. 
 
 » Town of 
 
 We, the undersigned; [as in % 281, to the*, and then addf\ 
 that, no such encroachment has been made on the said highway; 
 and, we have ascertained and elo certify the damages of C D, the 
 occupant erf the land through [or, by] which the said highway 
 passes, by reason of the proceedings of the said Commissioners . 
 against him, to be dollars. 
 
 In witness, &c., fas in \ 281.J 
 
 K the jury disagree, another precept may be issued by the 
 Justice, and another jui-y called: {Fitch vs. Commissioners of 
 Kirkland, 22 Wend. 132.) 
 
 Fees. 
 
 The fees for services under these statutes are as follows: 
 
 To Justices.] For a siimmons, twenty-five cents; 
 
 For a precept to summon a jury, thirty-seven and a half cents; 
 
 For swearing a jury, twenty-five cents; 
 
 For swearing a witness, six cents; 
 
 For an execution or warrant, to collect costs, nineteen cents. 
 (1 R. 8. 637, § 29.) 
 
 To Constables.'] For serving a summons, twelve and a half cents. 
 
 For serving an execution, or levying any fine or penalty pur- 
 suant to any warrant, five cents for every dollar collected to the 
 amount of fifty dollars; and two and a half cents for every dol- 
 lar collected over fifty dollars; 
 
 For every mile, going only, when serving a summons, war- 
 rant, or execution, six cents, to be computed from the place of 
 abode of the defendant, or where he may be found, to the place 
 where the pr«eept is returnable; {id. 647, § 40; id. 265, § 228.) 
 
 For sumiBoning a jury to re-assess the damages for laying out, 
 altering or discontinuing a road or highway, or to assess the 
 dai^ages for laying out or altering a private road, if from the 
 same town, one dollar; if from an adjoining town, two dollars. 
 (Xaws 0/ 1847, ctej). 455, ^ 19.) 
 
810 NEW YORK JUSTICE. 
 
 To Jurors.^ Each juror, attending and serving on a jury to 
 re-assess the damages for laying out, altering or discontinuing a 
 highway, or to determine the necessity of, and assess the dam- 
 ages for laying out or altering a private road, if from the same 
 town, fifty cents; if from an adjoining town, one dollar; 
 
 Each juror, attending in pursuance of a summons, but not 
 serving on such jury, if from the same town, twenty-five cents; 
 if from an adjoining town, fifty cents, {id^ 
 
 No compensation is allowed to any juror for examining and 
 certifying in regard to the necessity and propriety cjf any high- 
 way being laid out, altered, or discontinued, except as aforesaid, 
 nor for appearing to make such examination. Elings, Queens 
 and Suffolk counties, are exempted from the operations of this 
 provision. {Laws of 1845, cJmp. 180, ^§ 14, 35.) 
 
 For their services in determining upon .an encroachment, ju- 
 rors are entitled to twelve and a half cents. (2 R. 8. 643, § 37.) 
 
 To Town Clerks.^ For drawing and certifying a jury, fifty 
 cents. {Laws of 1847, chap. 455, § 19.) 
 
 CHAPTER XVI. 
 
 OF LANDLOED AND TENANT. 
 
 1. Deserted Premises. 
 
 If any tenant, being in arrear for rent, deserts the demised 
 premises, and leaves the same unoccupied and uncultivated, 
 without any goods thereon subject to distress,* to satify the 
 arrears of rent, any Justice of the Peace of the county may, at 
 the request of tlie landlord, and upon due proof that the premises 
 have been so deserted, leaving such rent in arrear, and no goods 
 thereon subject to distress, go upon and view the said premises; 
 
 and, up<?n being satisfied upon such view, that the premises 6ave 
 
 , — __ 
 
 • Disf'^Ba for rent is abolished by the act of May 13th, 1846 {chap. 274). But 
 that act does not. repeal this statute. 
 
DESERTED PREMISES. 811 
 
 been so deserted, he must affix a notice in writing upon "a con- 
 , spicuous part of the premises, requiring the tenant to appear 
 and pay the rent due, at some time in the said notice specified, 
 not less than five nor more than twenty days after the date 
 thereof. (2 B. S. 512, § 24.) 
 
 ^ 284. Petition and Affidavit, where Demised Premises are de- 
 serted. 
 
 To S T, one of the Justices of the Peace of the county of : 
 
 The petition of A B, of , in said county, respectfully 
 
 showeth: That he demised to C D, of, &c., the premises lately 
 occupied by the said C D, on street, in the village of 
 
 , in said county, for the term of one year, from the 
 day of , one thousand eight hundred and , at the 
 
 yearly rent of dollars, payable quarter-yearly; that the 
 
 said C D entered into the possession of the said premises, as 
 tenant thereof, by virtue of the said demise, and is now indebt- 
 ed to your petitioner in the sum of dollars, for one quar- 
 ter's rent of the said premises, due the day of , 
 18 ; and that he has deserted the same, leaving the said rent 
 in arrear, and the premises unoccupied and uncultivated. 
 
 Your petitioner, therefore, requests that you go upon and 
 view the premises, and, if satisfied, upon such view, that the 
 premises are so deserted, that you affix a notice in writing upon 
 a conspicuous part thereof, requiring the tenant to appear and 
 pay the said rent. A B. 
 
 Dated the day of , 18 . 
 
 County, ss: 
 
 A B, of said county, being duly sworn, says, that the facts set 
 forth in the above petition subscribed by him, are true. 
 
 Sworn, &c., [as in § 267.J 
 
 § 285. Notice to Tenant who has deserted the Demised Premises. 
 
 To C D, of : 
 
 You are hereby notified, that, at the request of A B, your 
 landlord, and upon due proof made to me that he had demised 
 to you the premises upon which this notice is affixed, and that 
 you were in arrear for one quarter's rent, amounting to 
 dollars, and that you had deserted the premises, leaving such 
 rent in arrear, and had left them unoccupied and uncultivated, 
 I have viewed the said premises, and am satisfied, upon such 
 view, that the same have been so deserted: Therefore, you are 
 hereby required to appear, on the day of ,18 , at 
 
 o'clock in the noon, at the place where this notice is 
 
812 NEW YOEK JUSTICE. 
 
 affixed, and pay the rent due, or the landlord will be put in 
 possession of the premises. 
 
 Dated the day of » 18 . 
 
 S T, Justice of the Peace. 
 
 At the time specified in the notice, the Justice mu,st again 
 view the premises. If the tenant appears and denies that any 
 rent is due to the landlord, all proceedings must cease. If, upon 
 the second view, the tenant, or some one for him, does not ap- 
 pear and pay the rent in arrear, alid there is not sufficient dis- 
 tress on the premises to satisfy the rent, the Justice may put 
 the landlord into possession of the demised premises; and any 
 demise of the premises to such tenant becomes from thenceforth 
 void." {2 U.S. 512, §25.) 
 
 Distress for rent having been abolished, it is, probably, no 
 longer necessary that the landlord should prove that there ar6 
 no goods upon the premises subject to distress, or that that fact 
 should be ascertained by the Justice; it being sufficient that the 
 tenant deserts the premises, and leaves them unoccupied and un- 
 cultivated. The language of the statute has, however, been 
 given. 
 
 The tenant, if he is dissatisfied with the proceedings before 
 the Justice, may, at any time witMn three months after posses- 
 sion of the premises is delivered, appeal ^to the County Court 
 of the county within which the premises are situated. He must 
 serve a written notice of appeal upon the Justice, and give 
 security to be approved by him, to pay to the landlord all the 
 costs of the appeal which may be adjudged against the tenant 
 upon the appeal. The Justice must return the proceedings had 
 before him to the County Court, within ten days after the secu- 
 rity and notice are given, and give notice to the landlord of the 
 appeal. (2 B. S. 512, § 26.) 
 
 § 286. Bond on Appeal. 
 
 Know all men by these presents, that we, C D and E F, 
 are held and firmly bound luito A B, [as in § 256 to the *, the 
 penalty and sureties to be approved by the Justice, and then 
 add:^ 
 
 Whereas S T, Esquire, a Justice of the Peace of the county 
 of , affixed, upon a conspicuous part of the premisfes 
 
 hereinafter described, a notice, of which the following is a copy, 
 [here, insert the notice;'] And whereas also, afterwai-ds-, to wit, 
 
DESERTED PREMISES. ' 813 
 
 on the said [here state the time,] .the said Justice again yielded 
 the said premises, and put the said A B into possession of the 
 same: Now, therefore, (that the above bounden C D may appeal 
 from the said proceedings of the said Justice to the County 
 Court of said county, pursuant to the provisions of the Eevised 
 Statutes,) the condition of this obligation is such, that if the 
 said C D shall pay to the said A B all costs of said appeal 
 which may be adjudged against the said" C D on said appeal, 
 then this obligation to be void; otherwise of force. 
 
 Sealed and delivered in my presence, ) CD. [l. s.l 
 
 by whom the penalty and sureties are \ E F. [L. s.J 
 
 approved. S T Justice, &c. J * 
 
 § 287. Notice to the Landlord, of the Appeal. 
 To AB: 
 
 Sir: You will take notice, that C D, upon giving the required 
 security, has this day appealed to the County Court of the 
 county of , from my proceedings at your instance, and 
 
 by which you have been put in possession of the premises situ- 
 ate in . , in said county, and demised by you to the said 
 C D, for the term of years. 
 
 Dated this day of , 18 . 
 
 Yours, &c., S T, Justice. 
 
 § 288. Mecord of Justice, where Premises are Deserted, i 
 State of New York, ) 
 County, y 
 Be it remembered, that on the day of , one 
 
 thousand eight hundred and , A B, by petition presented 
 
 to me, set forth that he had demised to C D, &c., \as in peti- 
 tion,] and for which there was then due to the said A B, for 
 arrears of rent for the same, the sum of dollars, and that 
 
 C D had deserted the premises, leaving the said :^'ent in arrear, 
 and left the premises unoccupied and uncultivated; Whereupon, 
 at the request of the said A B, and upon due proof of the facts 
 set forth as above, I did go upon and view the premises, and 
 was satisfied, upon such view, that the premises were so desert- 
 ed; Therefaj-e, a notice in writing was aiExed by me upon the 
 front door of the dwelling-house on said pi-emises, requiring the 
 sai4 C D to appear on the day of , 18 , at v 
 
 o'clock in the noon, 'at the place where the said notice 
 
 was so affixed, and pay the rent due; At which time and place 
 I again viewed the premises, and, the tenant not appearing and 
 denying that any rent was due to the landlord, nor he, nor any 
 person for him appeai:ing to pay the rent in arrear, I did put 
 
814 NEW YORK JUSTICE. 
 
 the\aid A B, the landlord, in possession of the premises above 
 mentioned, free and clear of any demise to the said C D, the 
 same being by law from thenceforth declai'ed void. 
 Witness my hand, this day of , 18 . 
 
 S T, Justice, &c. 
 
 2. Special Proceedings for Re-entry, 
 
 In all cases where the right of re-entry is reserved and given 
 to a grantor, or lessor, in any grant or lease, in default of a suffi- 
 ciency of goods and chattels whereon to distrain,, such re-entry 
 may be made at any time after default in the payment of the 
 rent, provided fifteen days' notice in writing of the intention to 
 re-enter,, be given by the grantor or lessor, his heirs or assigns, 
 to the grantee or lessee, his heirs, executors, administrators, or 
 assigns; and this, notAvithstanding there be a sufficiency of goods 
 and chattels-to satisfy the rent, provided the same were taken in 
 distress. The notice may be served personally on such grantee 
 or lessee, or by leaving it at his dwelling house on the premises. 
 {Laws oflMQ,cha]). 274.). 
 
 § 289. Notice of Intention to re-enter. 
 To CD: 
 
 You are hereby notified, that I shall re-enter the premises 
 known as , in the of , now occupied by 
 
 you under a demise from me, on the day of next: 
 
 you having made default in the payment of the rent for the 
 same. A B. 
 
 Dated this day of , 18 . 
 
 The mode of re-entry thus provided for does not supersede 
 that under the Eevised Statutes, which is next to be considered. 
 The former is merely an additional mode. {Williams\s. Potter, 
 2 Barh. 316.) 
 
 3. Summary Proceedings to Recover Possession of Demised 
 
 Premises. 
 
 Any tenant or lessee at will, or at sufferance, or for any part' 
 of a year, or for one or more years, of any houses, lands, or 
 tenements, and the assigns, under-tenants, or legal representa- 
 tives of such tenant, or lessee, may be removed from such 
 premises, by any Justice of the Peace of the city or town where 
 
KEMOVAL OP A TENANT. 815 
 
 such premises are situated, or by any one of the Justices of the 
 Distript Courts of; the city of New York, in the manner herein- 
 after prescribed, in the following cases: 
 
 1. Where such person- holds over and continues in possession 
 of the demised premises, o^,' any part thereof, after the expira- 
 tion of his term, without the permission of his landlord. (2 
 JR. 8. 572, ^ 28, as amended hy Lmvs of 1849, chap. 193, § 1.) 
 
 This statute apijlies only where the opnventional relation of 
 landlord and tenant exists, and not where it is created by opera- 
 tion of law. (1 Wend. 134; 5 id. 281; 9 id. 227; 4. Den. 185. 
 See 15. Wend. 2,36; Burnett vs. Scribner, 16 Barb. 621.) If a 
 tenant for a year holds over, the landlord may remove him 
 summarily without any notice to quit. {Allen vs. Vaquish, 21 
 Wend, 628.) So of a tenant for life who holds over after the 
 determination of the life estate. [Livingston vs. Tanner, 14 
 iVi Y. 64; Torrey \a. Torrey, id. 430.) 
 
 2. Where such person holds over, without such permission 
 as aforesaid, after any default in the paj^ment of rent pursuant 
 to the agreement under Avhich such j)remises are held, and a 
 demand of such rent shall have been made, or three days' notice 
 in writing, requiriiig the payment of such rent, or the possession 
 of the premises, shall have been served by the person entitled 
 to such rent on the person . owing the same. (2 B. S. 512, 
 ^ 28, as amended by Laws of 1849, chap. 19B, § 1.) In proceed- 
 ings under this provision it inust be made to appear not oply 
 that such holding over is without the permission of the landlord, 
 (Prouty vs. Prouty, 5 How. Pr. 81,). but that the tenant holds 
 the premises under the agreement pursuant to which the rent is 
 claimed to be due, at the time the proceedings are instituted. 
 
 ■ If a tenant is theii holding under some new agreement with the 
 landlord, he cannot be dispossessed under the statute on the 
 ground that he is in default in the payment of rent under a prior 
 agreement. [Burnett vs. Scribner, 16 Barb. 621.) 
 
 This notice must be served either by delivering to the tenant 
 to whom it is directed a true copy thereof, and at the same time 
 showing him the original; or, if the tenant be absent from his 
 last or usual place of residence, then by leaving a copy of the 
 notice at such place, with some person of mature age residing 
 on the premises; (2 R. 8. 512, § 28,' as amended by Laws of 
 1849, chap. 193, § 1; id. 514, § 32, as amended by Laws of 1857, 
 
816 NEW YORK JUSTICE. 
 
 chap. 684, § 1;) or if there be no such person residing thereon, 
 then the service may be made by affixing such copy upon a con- 
 spicuous part of said demised ^premises. 
 
 % 290. Notice requiring Paymerit of the Rent or the Possession 
 
 of the Premises. 
 To C D: 
 
 There is now due to me upon your lease of the premises [der 
 scribe them,] the sum of dollars, bejtig one quarter's 
 
 [or, year's] rent, and you are hereby required to pay the same 
 within three days from the service of this notice, or to deliver 
 up the possession of the said premises to me. 
 
 Dated this day of , 18 . A B. 
 
 This demand may be made of the tenant in possession, and 
 the notice may be served upon him, though he is not the lessee 
 or assignee. (^Rogers vs. Lynds, 14 Wend. 172.) "Where two 
 tenants hold jointly, a demand of rent upon one of them is suffi- 
 cient to maintain the proceedings. {Gfeisler et vs. Acosta, 5 
 Seld. 227.) 
 
 3. Where the tenant or lessee of a term of three years, or 
 less, has taken the benefit of any insolvent act, or been discharged 
 under any act for the relief of his person from imprisonment, 
 duriiig such term. (2 li. S. 512, § 28, "aw amended by Laws of 
 1849, cha]p. 193, § 1.) 
 
 4. Wheteany person holds over and continues in possession 
 of any real estate which has been sold by virtue of an execution 
 against such person, after a title under such salp has been per- 
 fected. (2 a. S. 512, ^28, as amended by Laws of 1849, chap. 
 193, § 1.) ' 
 
 The application for process, under this subdivision may be 
 made by any person in whom the title is at the time of the appli- 
 cation. The remedy is not limited to the purchaser at the saku 
 If the defendant in the execution be in the actual occupation of 
 the premises, the proceedings may be properly instituted against 
 him; and they may be had against a tenant in common, before 
 partition. (^Brown vs. Betts, 13 Wend. 29.) 
 
 Proceedings under this subdivision may also be had against 
 the servant or agent of the debtor, or against a third person 
 who has entered into possession under title derived from the 
 debtor, subsequent to the attaching of the lien of the judgment 
 under which the property was sold. Th^ fact that the third per- 
 
REMOVAL OF A TENANT. 817 
 
 son entered under a title so subsequently acquired, must be al- 
 leged in the affidavit. (HdUenbeck et vs. Gamer, 20 Wend. 22.) 
 Any landlord, or lessor, his legal representatives, agents, or 
 assigns, may make oath in writing of the facts which, according 
 to the provisions of the several subdivisions of the statute just 
 quoted, authorize the removal of a tenant, describing therein the 
 premises claimed, and present the«ame to the Justice. (2 H. S. 
 513, § 29.) ' The affidavit here provided for should make out a 
 plain case, and should show, ambrig other things, that the per- 
 son intended to be removed is in the occupation of the premises, 
 {Smith vs. Huestis, Hill & Denio 8upp. 236,) together with his 
 relation to the landlord. {Hill vs. 8tocJdng, 6 Hill, 315, Deuel 
 vs. Rust, 24 Barb. 438.) If the proceeding's is under the second 
 subdivision above cited, the affidaivit should also show of whom 
 the ' demand was made, or on whom the notice was served. 
 {Rogers vs. Lynds, 14 Wend. 172.) But a notice is not neces- 
 6ary, if a demand was properly made, {id.) If the applicant 
 claims on a holding over by a tenant of his after the expiration 
 of a lease, the affidavit should show that the applicant was the 
 owner, or entitled to the possession of the premises, at the, time 
 of giving the lease. {Buck vs. Binninger, 3 Barb. 391.) If 
 the affidavit is made by an agent, the fact of the agency must 
 be distinctly sworn to; {Exparte Bh. of Monroe, 7 Hill, 177; 
 OunningJiam vs. Goelet, ^ Den. 71;) but no excuse need be 
 given why it is npt made by the landlord himself. {8impspn 
 vs. Rhinelandeps, 20 Wend. 103.) The affidavit should not be 
 uncertain nor contradictory. It must distinctly show which of 
 the persons proceeded against is the tenant, and which are un- 
 der-tenants; and it should also allege how the defendants are in 
 possession in order that the officer before whom the proceedings 
 are had may judge whether they come within the statutory 
 description. {Wiggin vs. Woodruff et, 16 Barb. 474,) 
 
 4 291. Affidavit to authorize, the srnnmaify Removal of a Tenant. 
 
 County, ss: 
 . A B, of, &c., \or, E F, agent, or, assignee, or, if a legal repre- 
 sentative, state according to the fact, of A B, of, &c.,] being duly 
 sworn, says that' [here state the facts which, according to some 
 one of the above subdivisions, authorize the'removal of a tenant, 
 and describe the premises claimed.] 
 
 Sivorn, &c., [as in k 267.] A B. 
 
 52 
 
818 NEW YORK JUSTICE. 
 
 On receiving the affidavit, the Justice must issue his sum- 
 mons, describing the premises of vi^hich possession is claimed, 
 and requiring any person in possession thereof, forthwith to 
 remove from the same, or to show cause before the Justice 
 within such timevas he shall deem reasonable, not less, than 
 three nor more than five days, why possession of the premises 
 shall not be given up to the applicant. In those cases, however, 
 where a pei'son continues in possession of the demised premises 
 after the expiration of his term, without the permission of his 
 landlord, the Justice may direct the summons to be made 
 returnable on the same day. (2 M. S. 513, ^ 30; Laws of 
 1851, chap. 460,) , 
 
 In the case of a tenancy a,t will, or at sufferance, the Justice 
 must, previous to issuing a summons, be satisfied by affidavit, 
 that such tenancy has been terminated by giving notice in the 
 manner prescribed by law. (2 E. S. 513, § 31.) The notice 
 thus required to be proved, is a notice in writing, to be served 
 on the tenant, requiring him to remove vrithin one month after 
 the service; and may be served by delivering it to the tenant, 
 or to some person of proper age residing on the premises, or, 
 if the tenant cannot be found, and there is no person on the 
 premises, then by affixing the notice oii a conspicuous part of 
 the premises, where the same can be conveniently read. (1 id. 
 745, ^§7,8.) 
 
 If application is made for a summons to be served on any per- 
 son holding over real estate which has been sold on execution, 
 the magistrate must, in like manner, be satisfied that a demand 
 of the possession of such premises has been made. (2 H. iS. 
 513, § 31.) 
 
 The summons should be directed to all the parties proceeded 
 against, by name. (6 Hill, 314; 4 Den. 185; Deuel vs. Rust, 
 24 JBarb. 438;) If the direction is left blank, the proceedings 
 will be defective, though service is made upon the proper party. 
 (Ounning/iam vs. Goelet, 4 Den. 71.) It should describe the 
 premises, and require the defendant forthwith to remove from 
 the same, or show cause why possession of said premises should 
 not be delivered to the applicant. {Deuel vs. Rust, 24 Darb. 
 438.) 
 
REMOVAL OF A TENANT. 819 
 
 § 2,92, i/S'wwons MJ^cZ^J" Subdivision l,io remove Tenant holding 
 
 over, after Expiration of Lease. 
 To Cp,"of : ■ 
 
 ' Wtereas, A B, of said P^ , > ^^ made oath in 
 
 Tvriting, and presented the same to me^'that on of about the 
 
 day of 'i he rented unto you, the said C D, the 
 
 house and lot kno^n as number i , in street, in said 
 
 , ffor; the term of from the day of 
 
 then next ensuing; ^nd, that you hold ovpr and continue in pos- 
 session of the said premises after the expiration of the aforesaid 
 term therein, without the permission of the said landlord: 
 Therefore, in the' name of the People of the State of New York, 
 you are hereby summoned and required, forthwith to remove 
 from ithe- said premises, or show cause before me, at my office, 
 in . , on the day of , at o'clock in the noon, 
 whypqsses^ion pf the said premises should not be delivered, to 
 the S9,id kndlord. 
 Witness my hand, the day qf , 18 . 
 
 ST, Justice of the Peace. 
 
 § 293. Summons under Subdivision 1, in a case of Tenancy at 
 Will, or at Sufferance, terminated by Notice. 
 
 To CD, of : , \^ 
 
 • Whereas A B has made oath in writing, and presented the 
 same to me, that since the day of , in the year 
 
 , you have held and occupied the house and lot in 
 the of ' ' ', in '"'' street, where yOunow reside, 
 
 as his tenant,' and at his will, without any certain time agreed 
 on for the termination of said tenancy; and that he caused a 
 notice in writing to be served on you in due form of law, on 
 the day of last past, requiring you to remove 
 
 from said premises Ti^itl^in one month from the day of the service 
 thereof; and that the same time hath expired; biit that you 
 hold over and continue in possession of said premises after the 
 expiration of said time, without the permission of the said land- 
 lord: 
 
 Thprefore, in the name of the people of the State of New 
 York, you are hereby summoned and required, forthwith to 
 remove frqm the said premises, or show cause before nie, at my 
 office, in the town of , in said county, on iihe , day 
 
 of ■ instant, at ' ' o'clock in the noon, why 
 
 possession of the said premises should not be delivered to the 
 paid landlord. 
 
 Witness, &c., \as in § 292.] 
 
820 NEW YORK JUSTICE. 
 
 ^294, Summons under _ Subdivision ^, to remove Tenant /or 
 
 JSfon-payment of Bent. 
 To C D: 
 
 Whereas A B, of the of , in the county of 
 
 , has ma^e oath that you are justly indebted to him in 
 the sum of one hundred dollars, due the ' day of , 
 
 18 . , for rent of the house and lot known as number , 
 
 in street, in ., aforesaid; that -he has demanded 
 
 from you the said rent, and that default has been made in the 
 payment thereof pursuant to the agreement under which the 
 premises were let; and that you hold over and coi^inue in pos- 
 session of the same, without the permission of the said landlord; 
 " after default in the payment of the rent, as aforesaid: There- 
 fore, you are hereby summoned and required, forthwith to re- 
 move from the said premises, or show cause before me, at my 
 office in , on the day of , 18 , at 
 
 o'clock in the noon, why possession of the said premises 
 
 should not be delivered to the said landlord. 
 
 Witness, &&:, [as in ^ 292.] 
 
 Forms of summonses under subdivisions 3 and 4 of the 
 statute can be easily framed from the foregoing Forms. 
 
 The summons must be served, either by delivering to the 
 tenant to whoija it is directed, a true copy thereof, and at the 
 same time showing him the original; or, if the tenant is absent 
 from his last or usual place of residence, by leaving a copy 
 thereof at such place, with some person of mature age residing 
 on the premises. (2 R. S. 514, ^ 32.) 
 
 ^ 295. Affidavit of service of Summons. 
 
 County, ss: ' 
 
 E F, of said county, being duly sworn says, that on the 
 day of instant, he personally served the within 
 
 summons upon C D, the tenant therein named, by delivering a 
 true copy thereof to him in person, and at the same time show- 
 ing him the said original summons. 
 
 Sworn, &c., [as in § 267.] ' E F. 
 
 If the tenant is absent, the affidavit of service must state that 
 he' was absent from his last or usual place of residence. (Cawr 
 eron vs. McDonald, 1 Hill, 512.) 
 
 If, at the time appointed in the summons, no sufficient cause 
 is shown to the contrary, and due proof of the service of the 
 
REMOVAL OE -A XEJfANT. 821 
 
 summons is made to the Justice, he must issue his warrant di- 
 rected to the sheriff of the county, or to any constable or mar- 
 shal of the city or town where the premises are situated, com- 
 manding Jiirp, to remove all; persons from the premises, and to 
 put the applicant in full possession. (2 i2. /S. 514, § 33.) The 
 Justice must enter in his docket bis final decision upon the ap- 
 plication for the warrant, and must render judgment therefor, 
 and include in said judgment costs 'of such proceedings to the 
 prerailing party, at ;fche same rate of fees allowed by law in 
 civil actions before Justices, and limited in like manner, and 
 must> intl^e warrant for delivery of possession, or by execution 
 issued by him, direct the collection of such costs. {Laws of 
 1849, chap. 193, § 5i) 
 
 \ 296. Warrant under Subdivision 1, to put in Possession, 
 where Tenant holds over after Expiration of Lease. 
 
 To the sheriff of the county of [or, to any one of the 
 
 constables, or marshals, of the city of . , or-,, of the 
 
 town of , in the county of , greeting: 
 
 Whereas, A B, of the of , in said countj', 
 
 ihade oath- in writing, and presented the same to me, that 
 bn or about the day of , 18 , he rented unto C D, 
 
 of , the house and lot known as number in 
 
 street, in said , for the term of from the 
 
 day of then next ensuing, and that the said ,C D held 
 
 over and continued in possession of said i^remises, after the ex- 
 piration of the aforesaid term therein, without the permission 
 of the said landlord; Whereupon I issued a summons, requiring 
 the said tenant forthwith to remove from the said premises, or 
 show cause before me at a certain time now past, why the pos- 
 session of the said premises should not be delivered to the land- 
 lord;* and no sufficient cause having been shown to the con- 
 trary, and I, being satisfied, by due proof, of the service of the 
 said summons, did render judgment in the said matter in favor 
 of the said A B, against the said C D, and that the said premises 
 should be delivered to the said A B, as the landlord, and did 
 enter the said judgment in my docket, and did include in said 
 ''j"udgment the sum of ' dollars as the costs of such pro- 
 
 ceedmg* to the said A B: I do, therefore,- in the name of the 
 people of the State of New York; command you to' remove all 
 persons from the sa,iid premises, and tp put the said A B in full 
 possession thereof; And you are further commanded to collect 
 
822 NEW YOKE JUSTICE. 
 
 the said sum of dollars costs, of the goods and chattels, 
 
 of the said C D. 
 
 Witness, &c., [as in § 292.] 
 
 ^ 297. Warrant under 8-ubdivision 1, to remove the Tenant in 
 case of Tenancy at Will, or at Sufferance, terminated 
 by Notice. 
 
 To the Sheriff of the county of , \or, as in \ 296,] greeting; 
 Whereas A B made oath in writing, and presented the same 
 to me, that since the day of , in the year •, 
 
 C D, of had held and occupied the house and lot in the 
 
 of , in street, where he then resided, as his tenant 
 and at his will, without any certain time agreed on for the ter- 
 mination of said tenancy; and that he caused a notice in writing 
 to be served on him, the said tenant, in due form of law, on the 
 day of last, requiring him to remove from said 
 
 premises within one month from the day of the service thereof; 
 and that the said time had expired, but that the said tenant held 
 over and continued in possession of said premises after the ex- 
 piration of said time, without the pennission of said landlord; 
 Whereupon I issued a summons, requiring the said tenant to re- 
 move from said premises, or show cause before me, at a certain 
 time now past, why the landlord should not be put in posses- 
 sion of said premises;* And, due proof of the service of said 
 summons having been made tp me, and no good cause against 
 the landlord's application having been shown, or any way 
 appearing, I did [as in § 29Q,'from the * to the end.^ 
 ' Witness, &c., [as in \ 292.] ' 
 
 § 298. Warrant under Subdivision 2, to put in possession, in 
 ( Default of the Payment of Rent. 
 
 To the sheriff, &c., [as in ^ 296,] greeting: 
 
 Whereas A B, of , in said county, made oath in writing, 
 
 and presented the same to me, that C D was justly indebted to 
 him in the sum of one htmdred dollars, for rent of the house and 
 lot known as number , in street, in aforesaid; 
 
 that he demanded the said rent from the said C D, who had 
 made default in the payment thereof pursuant to the agreement 
 under which the premises were let; and that the said C D held 
 over and continued in possession of the same without the per- 
 mission of the said landlord, after such default; Whereupon I 
 issued a summons requiring the said tenant forthwith to remove 
 from the said premises, or show cause before me, at a certain 
 time now past why the possession of the said premises should 
 
KEMOy^. OF A T^ANT. 823, 
 
 E^Qt be delivered to the landlo^'d; * And, no good cause having 
 been shown or any way appearing to the contrary, and due 
 proof of the service of such summons having been mad,e to me, 
 I did [as in § 296, from the * to the end.] 
 Witnes^s, &c., [as in § 292.] 
 
 § 299. Return of Offiter to Warrant. 
 
 Pursuant to the command of the above warrant, I have this 
 day put A B, therein named, in full possession of the premises 
 therein mentioned. 
 • Dated this day of j 18 . • . 
 
 H C, Constable, [or, Marshal,] of. &c. 
 
 In case of proceedings under the second subdivision, before 
 given, if the unexpired term of the lease under which the prem- 
 - ises are held exceeds five years at the time of issuing the warrant 
 1 upon such proceedings, the lessee, his assigns or personal repre- 
 sentatives, may, at any time within one year after possession of 
 the demised premises shall have been delivered to the landlord, 
 pay or tender to the lessor, his representatives or attorney, or to 
 the officer who issued the W|rrant, all renit in arrear to the time 
 of such payment or tender, and all -costs and charges incurred 
 by the landlord; and, in such case, the premises must be 
 restored to the lessee, who will hold and enjoy the same with- 
 out any new lease thereof, according to the terms of the original 
 demise; and any mortgagee of the lease, or of any part therepf, 
 who is notin possession of thertlemised premises, or any judg- 
 ment creditor of the lessee, who, within oiie year after the exe- 
 cution of such warrant, pays all rent in arrear, and all costs and 
 charges as aforesaid, and performs all the agreements which 
 ought to be performed by the first lessee, will not be affected 
 by such recovery; and such judgnaent creditor may file a sugges- 
 tion of such payment upon the record, and may issue execution 
 for the amount of the original judgment and of such payment. 
 {Laws of 1842, cha^. 240.) ■ ' 
 
 (1.) Trial hy Jury. 
 Any person in possession of the demised premises, and any 
 person claiming possession thereof, may. at the time appointed 
 itt the summons for showifig caiisej file with the Justice an affi- 
 davit, denying any or all of the facts upon w;hich the summons 
 wa^ issued;, and, the matters thus controverted may be tried by 
 
824 NEW YOPK JUSTICE. 
 
 the Justice or by a jury, if either party, at the time a|)pointed 
 in the summons for showing cause, demands a jury, and at the ' 
 time of the demand, pays the necessary costs and expenses of 
 obtaining the jury. (2 JR. 8- 514, § 34, as amended hy Laws of 
 1849, cha;p. 193, §2, and'1857, cha;p. 684.) 
 
 § 300. Affidavit to obtain Trial hy Jury. 
 
 County, ss: 
 
 C D, of . , being duly sworn, says, that he denies the fol- 
 lowing allegations stated in the oath of A B, made on the 
 day of , 18 , in order to obtain the removal of this depo- 
 
 nent, from the following premises: \describe them, -J that is to 
 say: ,he denies that [state the facts denied.] » 
 
 sJSworn, &c.* [as, in § 267.] ' 
 
 In order to form the jury, the Justice must nominate twelve 
 reputable persons, qualified to serve as jurors in Courts of Rec- 
 ord, (^Ante, p. 285,) and issue his precept, directed to the sheriff 
 or one of the constables of the county, or any constable or mar- 
 shal of the city or town, commanding him to summon the per- 
 sons so nominated, to appear before the Justice, at such tiqie 
 and place as he shall therein appoint, (but not more than three 
 days from the date of the precept,) for the purpose of trying 
 the matters in difference. (2 i?. 3. 514, § 35, as amended by 
 Laws of 1849, chap. 193, § 3; Farrington vs. Morgan, 20 TFmd. 
 208.) 
 
 \ 301. Precept for a Jury. 
 
 To the Sheriff, &c., [or, as in § 296,] greeting: 
 
 Whereas, on the day of , 18 , A B, of , 
 
 made oath in writjng, and presented the same to me, stating 
 that, &c., [as in § 296, § 297, or § 298, as the case may be, to the 
 *, and then add:] And whereas, the said C D hath filed an affi- 
 davit with me, denying the aforesaid facts and allegations: You 
 are therefore hereby commanded, in the name of the people of i 
 the State of New York, to summon [insert the names of twelve 
 persons,] being twelve reputable persons, qualified to serve as 
 jurors in Courts of Record, and nominated by me for the pur- 
 pose, to appear before me, at, ,&c., on &c., [not more than thre6 
 days from the date of the precept,] for the purpose of trying 
 the matters in difference between the said A B and C D. 
 
 Witness, &c., [as in ^ 292.] 
 
REMOVAL OF A TENANT. 825 
 
 Six of the persons so summoned are to be drawn in like 
 maijner ag jurors in Justices' Courts, {Ante p. 289,) and sworn 
 by the Justice, well and truly to hear, try, and determine the 
 matters in difference between the parties. (2 M. S. 514, ^ 86, 
 as amended by Laws of 1849, cAop. 193, § 3.) 
 
 \ 302. Oath to Jurors. 
 
 Tou, and each of you, do swear, that you will well «.nd truly 
 hear, try, and determine the matters in difference, now depend- 
 ing before me, between. A B and Q D, the parties to this pro- 
 ceeding, and a true verdict give therein according to evidence; 
 so help you God. 
 
 After hearing the allegation^ and proofs of the parties, the 
 jury are to be kfept together, uiitil they agree upon their verdict, 
 by the sheriff, or one of his deputies, or a constable, or by some 
 proper person appointed by the Justice for that purpose, {id. 
 514, § 37.) The oath to keep the jury must be the same as is 
 administered in like cases in Courts of Eecord. {id.) 
 
 \ 303, Officer's Oath to Jceep Jury, after JSvidentie given. 
 
 You do swear, that you will well and faithfully keep', in some 
 private and convenient place, this jury committed to your 
 charge, without meat or drink, water excepted. You shall not 
 silffer "any person to speak to them, nor speak to them yourself, 
 Unless to ask them if they have agreed upon their verdict, until 
 they have agreed on their verdict, or are sooner discharged by 
 me; So help you God. 
 
 If the jury cannot agree, after being kept together for a rea- 
 sonable time, they may be discharged, and a new jury nomi- 
 nated, and a new precept issued; {id. § 38;) and so, also, if 
 there is a default in the number of jurors on the return of the 
 first precept. {Roach vs. Cosine, 9 Wend. 227.) At the request 
 of either party, the proceedings may be adjourned, not exceed- 
 ing ten days, if the delay is necessary to procure the attendance 
 of witnesses. (2 R. 8. 515, \ 41.) The Justice must issu« sub- 
 poenas, and 'compeJL, the witnesses to appear and testify, in the 
 same, manner as in other cases. (2 R. 8.' 515,, § 42.) 
 
 If the decision of the Justice or the verdict of the jury is in 
 favor of the claimant; the Justice must issue his warrant to the 
 sheriff or to any constable of the county in which the premises 
 are situated commanding the officer to put the claimjint in pos; 
 session, {id. § 39, as amended by.,Laws of 185,7, cjiap, §84.) 
 
826 NEW YORK JUSTICE. 
 
 The Justice must also enter in his docket the finding of the jnry, 
 and render judgment therefor, and inichide in such judgment 
 costs of such proceedings to the prevailing party, at the same 
 rate of fees allowed by law in civil actions before Justices, and 
 limited in like manner,, and must, in the warrant for delivery 
 of possession, or by execution issued by him, direct the collec- 
 tion of such costs. {Laws, of 1849, chap. 193, § 5; Partridge 
 vs. Ford, 5 How. 21.) 
 
 The Forms of warrants before given can be easily adapted to 
 the case of a trial by jury, by omitting the sentence in the latter 
 part of each, which states that no sufficient cause to the con- 
 trary has been shown, and reciting instead the summonftig and 
 verdict of the jury, the rendition of judgment, and a dii-ection, 
 in the usual form, to levy and collect the costs. 
 
 The officer to whom the warrant is directed and delivered is 
 required by statute to execute its commands. (2 M. 8. 515, 
 
 HO.) 
 
 The issuing of the warrant cancels and annuls both the lease 
 and the relation of landlord and tenant, (id. % 43.) This pro- 
 vision, however, does not operate to annul the lease from its 
 date, but only from the time of the default for which the war- 
 rant is issued. {Hinsdale vs. White, 6 Hill, 507.) 
 
 (2.) Staying Proceedings. 
 
 At any time before the warrant is actually issued, the tenant, 
 in case of a proceeding on account of the non-payment of rent, 
 may stay the proceedings, either by paying the rent due, and 
 the costs and charges of the proceedings, or by giving security, 
 satisfactory to the Justice, for their payment, in ten days, to the 
 person entitled to such rent. (2 R. 8. 515, § 44.) And in case 
 the person giving such security shall not, within ten days, pro- 
 duce to the magistrate satisfactory evidence of the payment of 
 the rent and costs, the warrant may at any time thereafter be 
 issued, {id., as amended, by Laws of 1857, chap. 684, § 4.) 
 
 § 304. Bond under Subdivision 2, to stay Proceedings. 
 
 Know all men by these presents, that we, C D and E F, are 
 held and firmly bound unto A B, [as in § 256, to the *, the pen- 
 alty and sureties to he approved by the Justice, and then add:] 
 
 Whereas, certain proceedings have been had, at the instance 
 
EEMOVAI, OF A TENANT. 827 
 
 of A B, against C D, before ST, one of the Justices of the 
 Peace of the County of , under the provisions of the 
 
 statute authorizing the summary removal of a tenantf fpr the 
 non-payment of rent, and the costs and charges of the said pro- 
 ceedings have been fixed by the said Justice at dollars: 
 Now, therefore, the condition of this obligation is such, that if 
 the said C D shall within' teii days from the date hereof, pay to 
 the said A B the said costs and charg€is, and the sum of 
 dollars, rent due him for the use and occupation of [describe the 
 premises,] then this obligation to be void; else, of force. 
 
 CD. [l. s.] 
 Sealed and delivered, [as in § 286.] E F. [l.^.] 
 
 When the application to the Justice is founded upon the fiict 
 that the .tenant or lessee has taken the benefit of an insolvent 
 act, or has been discharged under some act for the relief of his 
 person from imprisonment, the proceedings may be stayed at 
 any time before the warrant is issued, by paying the costs, and 
 giving security, satisfactory to the Justice for the payment of 
 the rent, to the person' entitled to such rent, as it shall become 
 due. {2 B. S. 515,^ U.) 
 
 § 305. Security under Subdivision ^,for Rent to become due, to 
 stay Proceedings. 
 
 Know all men, &c., [as in § 304, to the f, and then add/\ who 
 has taken the benefit of an insolvent act, [or, as the case may 
 bei\ Now, the condition of this obligation is such, that if the 
 said C D shall punctually pay all rent accruing or to accrue to 
 the said A B, upon the following premises, namely [describe the_ 
 premises,] ^hen and as the same shall Tiecome due and payable, 
 then this obligation to be void; else, to remain in force. 
 
 C D. [l. s.] 
 
 Sealed and delivered, [as in \ 286.] E F. [l. s.] 
 
 When the application is founded upon an alleged sale by 
 execution of the premises occupied by the defendant in the exe- 
 cution, the occupant may stay the proceedings, at any time 
 before the warrant of removal is issued, by paying the costs of 
 the proceedings, filing with the Justice an affidavit that he 
 claims the possession pi" the premises by virtue of some right or 
 title acquired after they were sold, or as guardian or trustee for 
 another person, and executing a bond to the applicant for the 
 warrant, in such a penaltyand with such sureties as the Justice 
 
828 NEW YORK JUSTICE. 
 
 may approTe, conditioned to pay all the costs which may ba 
 recovered against him in any action of ejectment that may be 
 brought by the applicant within six months, for the recovery 
 of the possession of the premises, and to pay the value oi the 
 use and occupation of the premises from the date of the bond to 
 the time the applicant obtains possession of the same by virtue 
 of a recovery in such action of ejectment, and also conditioned 
 not to commit any waste or injury to such premises during his 
 occupation. (2 B. S- 516, § 46.) ■ 
 
 § 306. Affidavit under Subdivision 4, to stay Proceedings. 
 
 County, ss: ' ' ' , 
 
 C D, being sworn, says, that he claims, in his own right, [or, 
 as trustee or guardian' of E F,] the possession of the following 
 premises, \\am.e\j,^[desci'ibe iJ/zem,], which, are claimed by A B as 
 purchaser under an execution, by virtue of the folio witig right 
 or title acquired by him in such premises, that is to say: [state 
 the particulars of such right or title.] 
 Sworn, &c., [as in § 267.] ' 
 
 § 307. Bond under Subdivision 4, to stay Proceedings. 
 
 Know all men by these presents, that we, C D and G H, are 
 held and firmly bound unto A B, [as in ^ 256, to the *, the 
 penalty and sureties to be appi'oved by the Justice and then addi\ 
 The condition of this obligation is such, that if the said C D 
 shall pay all the costs that may be recovered against him in 
 any action of ejectment that may be brought by A B against 
 him, the said C D, within six months from the date hereof, for 
 the recovery of the possession of [desci'ibe the premises,] and 
 shall pay the value of the use and occupation of such premises 
 from the date hereof to the time the said A B shall obtain pos- 
 session of the same, by virtue of a recovery in such action of 
 ejectment, and, shall not commit any waste or injury to such 
 pi-emises during his occupation thereof, then, this obligation to 
 be void; otherwise, of force. 
 
 Sealed and delivered, [as in § 286.] C D. [l. s.] 
 
 G H. [l. S.J 
 
 (3.) Certiorari. 
 
 The proceedings of the Justice under this statute may be re- 
 moved to the Supreme Court by certiorari, (2 B. S. 516, ^ 47,) 
 and, if they are reversed or quashed in that Court, the tenant 
 or lessee can recover against the party maldng application for 
 
REMOVAL OF A TENANT. 829 
 
 the waiTant, all the dainagesand costs he may have sustained. 
 (2 JR. S. 516, § 50.) But the proceedings on such application 
 will not be stayed or suspended by such writ of certiorari, or 
 by any other wtit or order of any Court or officer, (id. § 47.) 
 
 (4.) Appeal to Co^unty Court. 
 
 TJie proceedings may also be removed, by appeal to the 
 County Court, in the same manner, with the like effect, and 
 upon like security, as on appeals in civil actions. But, if the 
 tenant desires to stay the issuing of the warrant or execution, he 
 must give, in addition to the security required on appeal, security 
 to pay the rent accruing or to accrue subsequent to application 
 to the Justice. The appeal will not be good, unless such secu- 
 rity is given and approved by the County Judge at the time of 
 allowing such appeal, and served on the Justice with the affida- 
 vit for Appeal. (Laws of 1849, chap. 193, § 5.) But the Court 
 will allow him to amend his appeal by filing security after- 
 wards. {Briggs vs. Swales, 29 How. 201.) 
 
 Under these provisions it is held that the method of appealing 
 Is as follows: The notice of appeal must be givenin the manner 
 provided by section 304 of the present Code. " Security for 
 the judgment" must be given, in the form prescribed by section 
 356 of the Code, which must be approved by some officer form- 
 erly competent to allow appeals to Courts of Common Pleas. 
 {id. 258, § 19:) No allowance of the appeal itself is now neces- 
 sary. In addition to this, in case of an appeal by the tenant, in 
 order to stay the issuing of the warrant or execution, security 
 must also be given for the payment of all rent accruing or to 
 accrue upon the premises subsequent to the application to the 
 tjustice. (Deuel vs. Rust, ^4 Barb. 438.) 
 
 ^ 308. Affidavit for Appeal to County Court. 
 
 County, ss: 
 C D, [or, A B,] of said county, being duly sworn, deposes and 
 says, that on the day of . , 18 , A B, of , in 
 
 said county, [or, this deponent] made and presented to S T, Esq., 
 a Justice of the Peace in and for said county, his affidavit, of 
 which the following is a copy, to wit: [Insert the offidavit;J 
 whereupon the said Justice issued his summons, dated the 
 day of " , 18 , requiring this deponent forthwith to remove 
 from the premises in the said affidavit of the said A B mention- 
 
830 NEW TOEK JUSTICE. 
 
 ed, 'or to show cause before the said Justice, at Ms office in , 
 on the day of , at o'clock in the noon, 
 
 "w^y possession of the said premises should not be delivered to 
 the said landlord; \^If the summons was not in proper form, 
 insert a copy of it;'\ on which said day, to wit, the day of 
 
 , 18 , the said A B, and the said C D, appeared before 
 the said Justice, whereupon the following proceedings were had: 
 IHere state the proceedings, with the evidence of the witnesses, if 
 any were sworn.^ Deponent further says that, upon such hear- 
 ing, the Justice gave judgment for the said A B, that the said 
 premises in his said affidavit mentioned should be delivered to 
 him as the landlord, [or, against this deponent, and that the said 
 premises in his said affidavit mentioned should not be delivered 
 to him as the , landlord,] and also gave judgment against this 
 deponent, in favor of the said A B, [or, C D,] for • dollars, 
 as the costs of such proceedings. And deponent assigns the fol- 
 lowing grounds of error, upon which he appeals to the County 
 Coui't of the said county of , to wit: [State the-gronnds 
 
 of error distinctly and concisely J\ 
 
 CD, [or, A B.] 
 Sworn, &c., [as in § 2^7.] 
 
 I hereby allow the within appeal,, this day of , 
 
 18 . G H, County Judge. 
 
 \ 309. Notice of Appeal. 
 
 In the matter of 1 q j- j. 
 
 . -r> T -|i •] I bummary proceedings to recover possession 
 
 ' . ^ ' y of land, before S T, Esq., Justice of the 
 against I p > i ' 
 
 C D, tenant. ) 
 ■ Sir: Please take notice that C D, above named, appeals from 
 the judgment rendered against him by S T, Esq., Justice of the 
 Peace aforesaid, on the day of last, which judg- 
 
 ment is mentioned and referred to in the affidavit, of which 
 a copy is herewith served on you, to the County Court of the 
 county of . CD. 
 
 Dated , 18 . 
 
 To A B, and to S T, Esq., Justice. 
 
 A copy of the affidavit for appeal, and a notice of the appeal, i- 
 must be served on the opposite party, within twenty days after 
 the rendition of the judgment, and also on the Justice. If the 
 party be a resident of the city or county, the service may be 
 personal, or by leaving the copy of the affidavit and notice at 
 his residence, with some person of suitable age and discretion; 
 
REMOVAL OF A TENANT. 831 
 
 if not: a resident, the service may be on the attorney or agent, 
 if any, who is a resident of the city or county, who appealed 
 fot him on the trial. {Code, §§ 353, 354.) 
 
 § 310. Undertaking on Ajppeal.^ 
 
 In the matter of) r, j- j. 
 
 . x> 1 ji J bummary proceedrngs to recover possession 
 AiJ, lanaiora, i ^^ ^^^^ ^^^^^ g ^ -^ j^^^j^^ ^^ ^j^^ 
 
 m/aimt \ p— ^ ' ■ ' ^' 
 
 C D, tenant. J ' i , 
 
 C D, above named, having appealed to the County Court of 
 county, from the judgment rendered against him in this 
 proceeding, \describe the judgment •\ Now, therefore, in order to 
 stay the execution of the said judgment, and in consideration 
 thereof, .we, L M and N O, as sureties, undertake, jointly and 
 severally, that if judgment be rendered against the said C D, on 
 the said appeal, and execution thereon be returned unsatisfied 
 in whole or in part, we will pay the amount unsatisfied: [If the 
 appeal is made by a tenant, add:^ And we do further under- 
 take, jointly and severally, that the said C D shall punctually 
 pay all rent accruing or to accrue upon said premises subse- 
 quent to the application to the Justice, at the time or times 
 when the same becomes due and payable, and that, in default 
 thereof, we will pay the same.] 
 
 Witness om- hands, this day of , 18 . 
 
 LM. 
 NO. 
 
 I approve of the above imdertaking, and of the sureties therein 
 mentioned. G H, County Judge. 
 
 The decision of the County Judge must be in affirmance or 
 reversal of the, judgment and is final. (Laws of 1849, chap. 
 193, § 5.) 
 
 Fees. 
 
 The fees allowed by law for services under this statute are, 
 as we have seen, the same as are allowed in civil actions in Jus- 
 tices' Courts, (id.; Partridge vs. Ford, 5 How. 21; ante, p. 
 468.) Fees for the following services, however, do not seem 
 to be provided by the fee bill in civil actions: 
 ., To Justices.^ A warrant to put the, landlord in possession, 
 thirty-seven and a half cents; ' 
 
 Viewing the premises alleged to be deserted, fifty cents. » (2 
 E, jSj ; 636, § 36; id. 637, ^ 29.) 
 
832 NEW YOKE JUSTICE. 
 
 CHAPTER XVII. 
 
 OF LUNATICS. 
 
 When any person who is possessed of sufficient property to 
 maintain himself, becomes furiously mad, by lunacy or other- 
 wise, or so far disordered in bis senses, as to endanger his own 
 person, or the persons or property of others, if permitted to go 
 at large, it is the duty of the committee of his person and estate 
 to send him within ten days after he has become so furiously 
 mad, or so disordered, to the State Lunatic Asylum, or to such 
 public or private asylum as may be approved by the board of 
 supervisors of the county within which the lunatic resides. (2 
 B. 8. 635, § 1; Laws of 1842, chap. 135, § 20.) If such per- 
 son is not possessed of sufficient property to maintain himself, 
 it is the duty of his father and mother and children, if of suffi- 
 cient ability, to send him, within ten days, to the State Lunatic 
 Asylum, or to the asylum designated by the supervisors of the 
 county. Xid.; 1 R. 8. 635, § 2.) 
 
 The overseers of the poor have the same remedies to compel 
 the committee and relatives of the lunatic to confine and main- 
 tain him in the State or a private asylum, and to collect the 
 costs and charges of his confinement, as are given by law in 
 the case of poor or impotent persons becoming ehargeable to 
 any town. {id. §§ 3, 13.) 
 
 If the committee or relatives of the lunatic or mad person 
 refuse to provide for liis confinement and maintenance in one 
 of the asylums above designated, or if there is no committee or 
 relative of sufficient ability, it is the « duty of the overseers of 
 the poor of the city or town where such lunatic or mad person 
 is found, to apply to two Justices of the Peace of thfe same city 
 or town, to issue a warrant for his apprehension, {id. § 4.) If, 
 after an examination, or if, upon their OAvn view, or upon the 
 oath and information of others, without a request by the over- 
 seer, {id. § 8,) the Justices are satisfied that it would be danger- 
 ous to permit the lunatic to go at large, they must issue their 
 warrant, directed to the constables and overseers of the poor of 
 
LUNATiqs, 833 
 
 the city or town, commanding them to cause the lunatic or mad 
 person to be apprehended, and safely locked up and confined in 
 such secure place as may be provided by the overseers of the 
 poor to whom the warrant is directed, Within the town or city 
 of which they are officers, or within the county in which the 
 city or town is. situated, or in the county poor-house, or in such 
 private or public asylum as may be approved by 'any standing 
 order or resolution of the board of supervisors of the county in 
 which such city or town may be situated, or in the Lunatic 
 Asylum of the city of New York. (1 B. 8. 635, § 4; Laws 
 of 1838, chap. 218.) 
 
 If the lunatic or mad persen is confined in any other place 
 than the asylum designated by the order or resolution 6f the 
 supervisors, the warrant should direct that, afteij' the expiration 
 of ten days, he be conveyed to and confined in either the 
 asylum provided . by the, supervisors, or the State Lunatic 
 Asylum. {Laws- of 1842, chap. 135, § 20.) 
 
 ..The Jus;tices cannot, however,, order the confinement of the 
 lupP'tic, until the fact of his insanity has been proved by th© evi- 
 dence of two reputable physicians under oath. Their testimony 
 must' be reduced to writing, and filed,, with a, brief report of all 
 the other facts and proceeding? in the case, in the office of the 
 county , clerk. (id,,\22.) If the Justices refuse to make the 
 order of confinement, they must sitate their reasons for such re- 
 ifusal, in writing, so that any person aggrieved thereby may 
 appeal, (id. ^ 21.) 
 
 , It is the duty pf the overseers of the poor to whom the war- 
 rant is directed, to procure a suitable place for the confinement 
 of the lunatic, as therein directed. (1 R- 8. 635, \ 5.) 
 
 § 311. Warrant to confine a Z/unatic. 
 
 . County, ss: >• 
 
 To the overseers of the poor, and constables, of the town of 
 , in said county, greeting: 
 , A B, a lunatic, having been found in said town, so far disor- 
 dered in his. senses as to endanger his own person [or, the per- 
 sons and property of others,] if permitted to go at large; and no 
 provision having been made, either' by his relatives, or any 
 committee, for confining and maintaining such lunatic, the under- 
 signed, two of the Justices of the Peace of said town, on the 
 application of the Overseers ;0f the Poor of said town, \or, 
 
 5-3 
 
834 NEW YORK JUSTICE. 
 
 upon our own view,] being satisfied, upon examination, -[or, 
 upon information on oath to us given,] and from the evidence, 
 under oath, of C D and E F, two reputable physicians of , 
 as to the alleged fact of the insanity of the said A B, that it 
 would be dangerous to permit the said A B to go at large: You 
 are therefore hereby commanded, in the name of the people of 
 the State of , New York, to cause the said lunatic to be appre- 
 hended, and safely locked up in such secure place as said over- 
 seers may provide, in conformity to law, to be there detained 
 for [not exceeding ten] days, and, at the expiration of that time, 
 to be conveyed to the State Lunatic Asylum at Utica, [or, to the 
 asylum designated by the board of supervisors.] 
 
 Giyen under our hand and seal, this day of , 18 . 
 
 J H B, [l. s.] 
 H T C, [L. s.] 
 Justices of the Peace. 
 
 The county clerk must file the papers delivered to him as 
 aforesaid, and register the date, and the names and residences of 
 the lunatic and officers severally, in the book of miscellaneous 
 records kept in his office. His certificate,* under the seal of the 
 Court, verifying the fact of the filing of the papers and the reg- 
 istry, is sufficient to authorize the admission of the lunatic into 
 the asylum. {Laws of 1842, chap. 135, § 22.) 
 
 Fees. 
 
 The fees allowed by law for services imder this statute are as 
 follows:' 
 
 To Justices.] Administering an oath or affirmation, twelve 
 and a half centsf 
 
 A warrant, nineteen cents. (2 R. 8. 637, § 29.) 
 To Constables.] Arresting and committing any person pur- 
 suant to any process, fifty cents; 
 
 Mileage, gping only, for each mile, six cents, (id. 647, § 40.) 
 To Witnesses.] Each witness, for each day, fifty cents; 
 Mileage, four cents per mile, each way, if the witness resides 
 more than three miles from the place of attendance. (Laws of 
 1840, chap. 386, § 8.) 
 
MABBIAGES. 835 
 
 CHAPTER XVIII. 
 
 OF MAERIAGES. 
 
 Justices of the Peace are enumerated in the statute, among 
 those officers and persons by whom marriages may be solem- 
 nized. (2 B. S. -140, §^ 8, 10.) 
 
 The two essential requisites to the validity of the marriage 
 contract are capability and consent, (id. 138, ^ 1.) Both the 
 civil and the common law have fixed the age at which parties 
 are capable of contracting marriages, at fourteen years in males, 
 and twelve in females; (2 Kent's Comm, 78;) founded upon the 
 presumption, that the parties have, at that age, attained suffi- 
 cient discretion to understand the nature of the contract. Mar- 
 riage before that age is voidable at the election of either party, 
 on arriving at the age of consent, (id.) A former statute in 
 New York fixed the ages of consent at seventeen in.males, and 
 fourteen in females, (2 E. S. 1st edit. 138, § 2.) This pro- 
 vision, however, was repealed in 1830, within four months after 
 it took effect, (Laws of 1830, chap. 330, § 24,) leaving the com- 
 mon law in force. 
 
 The consent of both parties is absolutely essential to a valid 
 contract of marriage; (Bishop oh Marriage and Divorce, % 63;) 
 and it must be given by each party voluntarily.! If it is 
 obtained by coercion, duress or fraud, the marriage will be void 
 from the time its nullity shall be declared by a Court of com- 
 petent authority. (2 Kent's Comm. 77; '2 B. 8. 139, § 4.) 
 This mutual consent is of the essence of marriage; it constitutes 
 of itself, and without the d,ddition of any ceremonies, a perfect 
 marriage according to natural law, (Bishop on Marriage and 
 Divorce, § 63,) and according to the" laws of this State. (2 Kent's 
 Cpmm. 87; 2 R. S. 139, § 9.) It must, however, contemplatea 
 present marriage, in contradistinction to a mere contract to be 
 executed in the future, or' as the law expresses it, it must be 
 per verba de proesenti. (Cheney vs. Arnold, 15 New Yorh B. 
 345.) When so contracted, the marriage is valid and binding, 
 (Fenton vs. Beed, 4 John. 52; Btarr vs. Fech, 1 Bill, 270; 
 
836 NEW TOK'K JtFSTICE. 
 
 Rose vs. ClarJc, 8 Paige, 574,) even though it is not followed 
 up by cohabitation. {Bishop on Marriage and Divorce, § 67/ 
 Jackson vs. Winne, 7 Wend. 47.) The consent of parents is 
 not necessary. (2 Kent's Gomm. 8'5.) 
 
 It is apprehended that the Justice will find but little difficulty 
 in ascertaining the consent of the parties to the marriage, expe- 
 rience having demonstrated that willingness rather than reluc- 
 tance is manifested by them. But, in ascertaining the age of 
 the parties, especially of the female, he will have a moi'e diffi- 
 cult and perhaps a more delicate task to perform. If he is of 
 the opinion that either of the parties is not of marriageable age, 
 he should require legal proof to establish the age. (2 R. S. 
 140, \ 10.) 
 
 The Justice is also required to ascertain,, and enter in a book 
 to be kept fpr that jDurpose, the Christian names and surnames 
 of the parties, their ages, and their respective places of birth 
 and residence, and also the names and places of residence of two 
 attesting TOituesses, if there are two present. If but one Avitness 
 is present, his name and place of residence must be ascertained. 
 If either of the parties is not personally known to the Justice, 
 he must require proof of identity, {id. ^11; Laws of 1847, 
 chap. 152, § 3.) Solemnization of a marriage, where either of 
 the parties is, within the knowledge of the Justice, under the 
 age of legal consent, or a lunatic, or an idiot, or to which, 
 within his knowledge, any legal impediment exists, is a misde- 
 meanor, punishable by fine or imprisonment, or both. (2 R. 8. 
 140, § 12.) 
 
 No particular form of ceremony is necessary to solemnize a 
 marriage, except that the parties must solemnly declare, in the 
 presence of the Justice, and of at least one witness, thai they 
 take each other as husband and wife. {id. § 9.) A Form, 
 however, is inserted here for the benefit of those (either Jus- 
 tices or parties) who are going through the ceremony for the 
 first time. * 
 
 § 312. Form of Marriage. 
 
 The officer performing the ceremony will direct the parties to 
 join hands, and then say: "By this act of joining hands, you do 
 take each other as husband and wife, and solemnly promise and 
 engage, in the presence of these 'witnesses, to love and honor, 
 comfort and cherish each other, as such, so long as you both 
 
MARRIAGES. 837 
 
 shall live: THerefore, in accordance with the laws of the State 
 of New York, I do hereby pronounce you husbandfand wife." 
 
 At the request of either party, the Justice is required to fur- 
 nish a certificate, specifying: 1. The names and places of resi- 
 dence of the parties married, that they were known to him, or 
 were satisfactorily proved by the oath of a person known to 
 him, to be the persons described in the certificate, and that he 
 ascertained that they were of , sufficient age to contract marriage; 
 2. The name and place of residence of the at|testing witness or 
 witnesses'; 3. The time and place of marriage; and 4. That 
 after due inquiry made, there appeared no legal impediment to 
 the marriage. The certificate must be signed by the Justice, 
 (2 i?. /S'. 140, § 13.) , 
 
 § 313. Marriage Certificate. 
 
 County, ? g. 
 Town of , 5 ■ / 
 
 I, dQ hereby certify, that on the day of , instant, 
 
 ( or, last past,] at the house of R F, in said town of , A B, 
 
 of, &c., and E D, of, &c., were, with their mutual consent, law- 
 fully joiiied together in holy matrimony, wliich was solemnized 
 by me, in the presence of M P, of, &c., and R F, of, &c., attestr 
 ing witnesses: and I xJolui-ther certify, ,that the said A B and 
 E D are known to me \or, were satisfactorily proved, by the 
 oath of R F, known to me,] to be the persons described in this 
 certificate; that I ascertained,' previous to the solemnization of 
 the said' marriage, that the said parties were of sufficient age to 
 contract the same; and that, aftei; due inquiry by me made, 
 there appeared no lawful impediment to such marriage. 
 
 Given under my hand, this day of , 18 . 
 
 G H, Justice, &c. 
 
 Ministers and priests are also requi-red to furnish similar cer- 
 tificates, which, when certified by a Justice, -according to the 
 followins: form, are entitled to be filed and recorded in the office 
 of the' clerk of the city or town where the marriage took place, - 
 or where either of the parties resides. The certificate of the Jus- 
 tice must be endorsed upon or annexed to the marriage certifi- 
 cate of the, minister or priest, {id.): 
 
838 NEW TOEK JUSTICE. 
 
 § 314. Justices Certificate. 
 
 County,, ^^^ 
 
 Town of 
 
 I do hereby certfy, that G H, Eector of, &c., by whom the 
 foregoing [or, witljin] certificate is signed, is personally known 
 to me, and has acknowledged the execution of said certificate 
 in my presence, this day of ,18 ; [or, that 
 
 on the day of , 18 , personally came before 
 
 me, M P, to me known, who, being by me duly sworn, did 
 depose and say, that he was well acquainted with G H, Rector 
 of, &c., and knew him to be the same person who executed the 
 foregoing \or, annexed, or, within] certificate; and that he was 
 present and saw the said G Hexecute the same.] 
 
 S T, Justice, &c. 
 
 Fees. 
 
 The fee for performing the marris^ge ceremony, not being 
 regulated by statute, depends entirely upon the liberality of the 
 groom and the value df the services rendered. 
 
 CHAPTER XIX. 
 
 OF PAEENTS ABSCONDING. 
 
 Whenever any father, or mother being a widow or living 
 separate from her husband, absconds, leaving his or her chil- 
 dren, or whenever a husband absconds, leaving his wife charge- 
 able, or likely to become chargeable, upon the public for sup- 
 port, the overseers of the poor of the to%-n where the wife or 
 children may be, may apply to any two Justices of the Peace of 
 any county in which any estate, real or personal, of the parent 
 or husband absconding may be situated, for a warrant to seize 
 the same. (1 B,. S. 615, ^,8.) Upon due proof of these facts, 
 the Justices must issue their warrant, authorizing the overseers 
 to take and seize the goods, chattels, efiects,. things in action, 
 and the lands and tenements of the person so absconding, (id.) 
 
PARENTS ABSCONDING. ,839 
 
 § 315. Warrant to seize the Gonads of an Absconding Father, 
 Husband, or Mother. 
 
 County, ss: 
 To C D and E F, Overseers of the Poor of the town of , 
 
 ""'in said County: > ! ■ 7 
 
 It appearing to us, ttfo of tlie Justices of the Peace of said ' 
 county, as well by the application and representation to us made , 
 by you, the feaid Overseers, as upon due proof of the facts i 
 before us made, that A B, late of said town, has absconded 
 from his wife, [or, children,] leaving the said wife, \or, children,] 
 chargeable [or, likely to become chargeable] to the public for 
 support; and that the said A B has some estate, real or personal, 
 in' said county, whereby the public maybe wholly or in part 
 indemnified against said charge: We, therefore, in the name of 
 the People of the State of New York, authorize you, the said 
 Overseers of the Poor, to take and seize the goods, chattels, 
 effepts, things in action, and the lands and tenements of the 
 said A B, wherever the same may be found in said counfy: 
 And you will, immediately upon. such seizure, make an inven- 
 tory of the property by you taken, and retiirn the same, together 
 with your proceedings, to the next Court of Sessions of said 
 county. 
 
 Given under our hands, at the town of , this 
 
 . >By virtue .of this warrgint, the overseers may take the property 
 wherever it can be found in the same county; and they are 
 vested with all the right and title to it, which the person ab- 
 sconding had at the time of his or her departure. All sales and 
 transfers made by him or her, after the warrant is issued, of any 
 personal property left iii the county, whether in payment of an 
 antecedent del^t, or for a new consideration, are absolutely void. 
 The overseers must -immediately make an inventory of the prpp- 
 erty taken, and return it, with their proceedings, to the next 
 
 ] Court, of Sessions, by which the warrant and seizure may be 
 discharged or affirmed. (1 i2.yS'..615, § 9.) j 
 
 If the person against whom the warrant was issued return, * 
 and support liis wife ' and children, or give security, approved 
 by any two Justices of the towii, to the overseers of the ^oor 
 of the town, that the wife or children so abandoned shall not 
 „, become pr tHereaifter be chargeable to the town or county, then 
 
840 NEW YORK JUSTICE. 
 
 the warrant must be discharged by an order of the Justices, and 
 the property taken be restored to him. (1 E. S. 616, § 11.) 
 
 a 
 
 \ 316. Bondto begivenby Partywhere Property has beenseized. 
 
 Know all men by these presents: That we, A B and L M, 
 both of the town of , in the. county of , are held 
 
 and firmly bound unto CD and E F, Overseers of the Poor of 
 the town of , in the sum of dollars, for the pay- 
 
 ment whereof to the said Overseers, or their successors in office, 
 we biiid outselves, our heirs, executors and administrators, 
 jointly and severally, firmly by these presents. Sealed with 
 our seals, and dated at , this day of , 18 .* 
 
 Whereas the said Overseers of the Poor lately'^ seized the 
 property of the said A B, under a warrant issued by G H and 
 S T, two Justices of the Peace of the county of , upon 
 
 due proof, to them given, that the said A B had absconded from 
 his wife, \or, children,] leaving her, \or, them,] chargeable [or, 
 likely to become chargeable,] upon the pubKc for support; 
 And the said A B having returned, and being desirous of hav- 
 ing his property so faken restored to him: Now, the condition 
 of this obligation is such, that if the said wife, [or, children,] so 
 abandoned, shall not become or hereafter be chargeable to the 
 said town or county, then this obligation to be void; otherwise, 
 of force. , A B. [l. s.] 
 
 L M. [l. s.] 
 Sealed and delivered in the presence of us, two of the Justices 
 
 of the town of , by whom the said bond and sureties 
 
 are approved. G H, ) j +j 
 
 ^317. Order to discharge the Warrant, and to restore the 
 
 Property. 
 
 •County, ss: 
 To C D and E F, Overseers of the Poor of the town of , 
 
 in said county: 
 Whereas, by a warrant to you directed, bearing date the 
 
 day of , 18 , you were authorized to seize the 
 
 goods, chattels, effects, things in action, and the lands and tene- 
 ments of A B, upon proof that he had absconded from his wife 
 [or, children,] leaving her [or, them] chargeable to the public 
 for support: And whereas, the said A B has returned, and now 
 supports his wife, [or, children,] so abandoned, [or, has given 
 security approved by us, to the Overseers of the Poor of the 
 said town, that his said wife [or, shildren] shall not become, or 
 hereafter be, chargeable to the said town, or to the said county:] 
 
PAWN-BRiJKlEBS. '841 
 
 We do, therefore, hereby discharge the said warrant issued 
 against the said A B, and direct the property taken by virtue, 
 thereof to be restored to him. 
 Given, &c., [as in ^ 815.] 
 
 Fees. 
 
 The only fees allowed under' this statute are one of twenty- 
 five cents to the Juistice for drawing a bond, (2 B. S. 637, § 29,) 
 and one of twelve and a half cents for admimstering an oath. 
 {id. % 28.) 
 
 CHAPTER XX. 
 
 OF PAWN-BEOKEES. 
 
 Whenever any person makes oath before a Justice of the 
 Peace, or. Police Justice, that any property belonging to him 
 laas been embezzled, or taken without his consent, and that \he 
 l^as reason to believe and suspect, and does/suspect, that such 
 property has been pledged with some pawn-broker, the Justice, 
 if satisfied with the correctness of the suspicions, must issue his 
 warrant, directed to some constable of the city or j)lace, com- 
 manding him to search for the property so embezzled or taken, 
 and to seize and bring it before him. (For Forms of complaint 
 and warrant, see ante, p. 532.) The const9,ble to whom the 
 warrant is directed and delivered, has the same power to pro- 
 ceed thereon as in the case of a search warrant issued upon a 
 charge of larceny. (1 R. 8. 711, §§ 10, 11; ante, pp. 531, 
 533.) 
 
 The property, when brought before the Justice, is to be 
 delivered to the claimant, upon his executing a bond, with such 
 siirety as the Justice shall approve, to the person from Whose 
 ppssession it was taken, in a p^enal sum equal to double the value 
 of the property claimed, conditioned to pay on demand all dam- 
 ages that shall be recovered against him in any suit that may be 
 brought, within thirty days from the date thereof, by the pawn- 
 
842 NEW YORK JUSTICE. 
 
 broker from whose possession the property was taken. (1 R. 
 8. 711, \\ 12, 13.) 
 
 \ 318. Bond of Clatpmnt. 
 
 Know all men by these presents, that we, A B and C D, both 
 of in the county of , are held and firmly bound 
 
 unto E F, of' , in the county of , in &c., [ai in 
 
 § 315, (o (he*, the penalty/ to be dovLle the value of the property 
 claimed, and then add:] Whereas certain property, namely, 
 [describe it,] has been taken from the possession of the said E 
 F, by virtue of a warrant issued by G H, a Justice of the Peace 
 of said county, dated the . day of , 18 ; 
 
 And whereas the said A B claims that the said property 
 beloiigs to him, and was embezzled from him, [or, taken from 
 him, without his consent,] and was pledged with the said E F, 
 as a pawn-broker; And whereas the said A B desires to have 
 the said property delivered to him: Now, the condition of this 
 obligation is such, that if the said A B shall, on demand, pay 
 all damages that shall be recovered against him in any suit that 
 may be brought, within th:jrty days from the date hereof, by the 
 said E F, then this obligation to be void; otherwise, of force. 
 
 A B, [l. s.] 
 C D, [l. s.] 
 
 Sealed and- delivered in my presence, by whom the said bond 
 and surety are approved. G H, 
 
 Justice of the Peace. 
 
 If this bond is not given within twenty-four hours, the Jus- 
 tice must deliver the property to the person from whose posses- 
 sion it was taken. (1 iJ. /S'. 711, § 12.) 
 
 Fees. 
 
 The fees allowed by law for services under the foregoing 
 statute, are as follows: 
 
 To Justices.] Administering an oath or affirmation, twelve 
 and a half cents; 
 
 Drawing a bond, twenty-five cents. (2 id. 637, §§ 28, 29.) 
 
 To Cdnstables.] Serving a warrant, nineteen cents; 
 
 Mileage, going only, for each mile, six cents, (id. 647, § 40.) 
 
UNCLAIMED BAGGAGE. 843 
 
 CHAPTER XXI. 
 
 OF UNCLAIMED BAGGAGE. 
 
 It is the duty of the proprietors of the several lines of stages, 
 danal-boats, steamboats, railroads, taverns and inns, within this 
 State, who have any unclaimed baggage in their custody, to 
 enter, in a book to be kept for that purpose, a description 
 thereof, and th^ time 'when it was left. If the name and resid- 
 ence of the owner can be ascertained, he is to be notified by 
 fiaail of the ^fvhereabouts of his baggage. If his name and 
 residence, Ciannot be ascertained, it is the d^ty of the person in 
 whose possession the baggage may be, to make out a correct 
 description of all such property as shall have been unclaimed 
 for thirty days, (stating the time the same came into his pos- 
 session,) and forward it to the editor of the State paper, by 
 whom it is to be published once a week for three weeks suc- 
 cessively, commencing on the first Mondays of July, October, 
 January and April, in each year. (Laws of 1837, chap. 300, 
 
 In case the property remains unclaimed for sixty days after 
 the publication, it is the duty of the person or company having 
 possession thereof, to apply to a magistrate of the town or 
 city in which the property is retained, in whose presence and 
 
 ' under whose direction it must be opened and examined, and an 
 inventory thereof taken by him; and, if the name and resid- 
 ence of the owner are ascertained by the examination, it is the 
 duty of the magistrate forthwith to direct a notice thereof to 
 the owner, by mail. If thie property remains unclaimed for 
 three months after the examination, it is the further duty of the 
 person or coinpany having possession thereof, again to apply 
 to a magistrate, and if he deems the property of sufficient 
 
 'Value, he must cause the same to be sold at public auction, 
 giving six days' previous notice of the time and place of the 
 sale. From the proceeds of the sale, he must pay the charges 
 and ex;penses legally incurred in respect to the said property, 
 or a ratable proportion thereof to each claimant, if insufficient 
 
844 ITEW YOEK JUSTICE. 
 
 for the payment of the whole amount; and the balance of the 
 proceeds of the sale, if any, the said magistrate must immedi- 
 ately pay to the overseers of the poor of said town or city, for 
 the use of the poor thereof j and the overseers must make an 
 entry of the amount, and of the time of receiving the same, 
 upon their official records, aiid it is subject at any time within 
 seven years thereafter, to be reclaimed by, and refunded to, 
 .the owner of the property, his heirs or assigns, on satisfactory 
 proof of ownership. {Laws of 1837, chajp. 300, \ 3.) 
 
 The person making the entry of unclaimed property as 
 above specified, is entitled to twelve and a half cents for each 
 •trunk, box, bale, package or bundle so entered, and has a lien 
 on the property until payment is made; and, in case any addi- 
 tional expense is incurred for printing, the lien continues until 
 payment is made for the additional expense. 
 
 In case any person neglects or refuses to comply with the 
 ■ptrovisions of this statute, he forfeits the sum of five dollars 
 for each and every trunk, box or bundle of baggage so neg- 
 lected as above specified, to the benefit of any person who will 
 sue for the same,- in his own name, in an action of debt, in any 
 Court having cognizance thereof. {Laws of 1837, chap. 300, 
 
 Fees. 
 There is no provision of law establishing any rate of fees for 
 the services of Justices under the above act. 
 
 CHAPTER XXII. 
 
 OF MISCELLANEOUS POWERS. 
 
 There are a few provisions scattered through the statutes, 
 relative to the powers and duties of Justices of the Peacq, the 
 brevity of which did not seem to require their consideration in 
 distinct chapters; and, as there was no subject to which they 
 appropriately belonged, they have all been aggr^ated in this 
 Chapter. ' c . 
 
DEPOSITIONS TO BE TJSED IIT OTHER STATES. 845 
 
 . ! 
 
 1. ArbitSatoes. 
 
 Justices of the Peace are authorized to administer oaths to 
 arbitrators, and to issue subposnas to coiiipel the attendance of 
 Tviinesses before such arbitrators. The subpoenas are to be 
 issued , in the same manner, and with the like effect, and the 
 witnesses are subject to the same penalties for disobedience, as 
 in cases of trials before Justices of the Peace. {Laws of 1843, 
 chap. 187; 2 B. S. 541, ^ 6; ante, p. 270, e( seq.) 
 
 ' ■ Fees. 
 
 The fee for administei'ing the oath is twelve and a half cents. 
 {2R. 8. 637, § 28.) 
 
 The fees for subpoenas, and for subsequent proceedings, are 
 the same as in civil actions in Justices' Courts. {Ante, p. 468.) 
 
 2, Depositions to be usep in other States. 
 
 The statute provides, that if, upon application to any Justice 
 of the Peace of any town in this State, it shall satisfactorily 
 appear, upon affidavit or otherwise, to the Justice to whom such 
 application is made, that a suit is pending in any Court in any 
 other State of the United States; and that any person residing 
 in the town in which such application is made, is a material wit- 
 ness for either party to such suit; and that, according to the 
 practice of the Court in "which such suit is pending, the deposi- 
 tion of a witness taken before a Justice of the Peace in this 
 State, will be received on the triiil or hearing of such suit, such 
 Justice shall issue his summons, requiring such witness to appear 
 before him, at a place within the town in which such witness 
 resides, at some reasonable time, to testify in such suit. {Laws 
 of 1831, chap. 191, § 1.) 
 
 The Justice before whom such witness appears, must take 
 down his testimony in writing, and certify and transmit the 
 same to the Court before which such suit is pending, in such 
 manner as the practice of the Court may require, {id. % 7.) 
 
 If any person refuses or neglects to appear at the time and 
 place mentioned in the summons issued in accordance with the 
 statute, or if, on his appearance, he refuses to testify, he is liable 
 to the same penalties as would be incurred for a like offence on 
 
846 NEW YORK JUSTICE. 
 
 the trial of an action in a Justice's Court. \Laws of 1831, 
 chap.- 121, W 3, 4 ; ante, p. 275, el seq.) 
 
 Fees. 
 
 To Justices.] A summons, twenty-five cents. (2 B. 3. 637, 
 §29.) 
 
 No particular fees are prescribed for taking testimony under 
 the above statute. 
 
 To Constables.] Serving a summons, twelve and a half cents. 
 (id. 647, § 40.) 
 
 To witnesses.] Every witness who appears and testifies, as 
 required by this statute, is entitled to receive from the party at 
 whose instance he shall have been summoned, fifty cents for 
 each day he gives his attendance. {Laws of 1840, chap. 386, 
 §8.) 
 
 3. Firemen. 
 
 The supervisors and Justices of the Peace for the time being 
 of any town in this State, may appoint, in writing, any number 
 of the inhabitants of the said town, not exceeding forty, to each 
 fire engine which may be procured for the extinguishment of 
 fires in the said toWn. The persons so appointed become fire- 
 men of the said town; but no such company can be foi-med 
 pursuant to this statute, in any incorporated city or village. 
 All vacancies which may at any time happen in such compaiiies, 
 by death, re^gnation, or otherwise, are to be filled by the super- 
 visors and Justices. {Laws of 1832, chap. 222; Laws of 1845, 
 chap. 244.) 
 
 Fees. 
 
 There are no fees prescribed for these services. 
 
 4. Firing of Woods. 
 Whenever the woods in any town are on fire, it is the duty 
 of the Justices of the Peace, the supervisor, and commissioners 
 of highways, of the town, to order such and so many of the 
 inhabitants of the town, liable to work on the highways, and 
 residing near the vicinity of the fire, as they may severally deem 
 necessary, to repair to the place where the fire is prevailing, 
 and there to assist in extinguishing it, or in arresting its pro- 
 gress. If any person so ordered refuses or neglects to comply 
 with the order, he forfeits the sum of fifty dollars, and is ajso 
 
JUSTICES OF SESSIONS. 847 
 
 deemed guilty of a misdemeanor, and, on conviction, may be 
 punished by a fine, not exceeding one hundred dollars, or by 
 imprisonment, not exceeding sixty days, or by both such fine 
 and imprisonment; The forfeiture, when recovered, is to be 
 applied as a reward to such person or persons as the officers 
 above mentioned, or a majority" of them, deem best entitled 
 thereto-, for superior exertions in extinguishing or stopping the 
 progress of the fire. (1 R. 8. 697, §^ 2, 3, 4.) 
 
 Fees. 
 No fees are prescribed for services under this statute. 
 
 5. Forcible Entry and Detainer. 
 
 Every Special Justice has the like powers and authority 
 under article one, title ten, chapter eight, part three, of the 
 Eevised Statutes, entitled " Of Forcible Entries and Detainers," 
 that eoimty judges have. (2 R. S. 510, § 18.) 
 
 Fees. 
 The fees in this matter are the same as in civil actions, {id. 
 509, §§12, 13; ante, p. 468.) 
 
 6. Justices of Sessions. 
 
 The Constitution provides, {Constitution of 1846, Art. vi., 
 sec. 14,) that two Justices of the Peace shall be designated ac- 
 cording to law, to hold, with the county judge. Courts of Ses- 
 sions. It is accordingly provided by statute, that two Justices 
 shall be designated by annual election. {Laws of 1847, chajp. 
 276, § 40, and chap. 470, § 34.) 
 
 Fees. 
 \For every day's attendance in holding the Courts of Oyer and 
 Terminer and Sessions in any county, the Justices of Sessions 
 are entitled, to receive the sum of two dollars each, and six 
 cents per mile in going and returning from Court; such com- 
 pensation to b-e a county charge, and to be paid by the county 
 treasurer, on the production of the certificate of the clerk of the 
 Court, specifying the number of days such Justices have attended, 
 and th6 distance they have travelled respectively; and but one 
 allowance for travel can be made for any terna of the Court. 
 {Laws of lU7,chap, 27 T, § 6.) ' 
 
848 NEW YORK JUSTICE. 
 
 The Justices of Sessions in and for the county of Orange, are 
 entitled to receive the sum of, three dollars per day each, for 
 their services, to^be audited by the board of supervisors of that 
 county, and paid a,3 other county charges ate paid. {Laws of 
 1848, chap, 241.) 
 
 7. Limited Partnerships. ,:? 
 
 Justices of tne Peace are authorized to take the aelmowledg- 
 ment of cei-tificates made by persons forming limited partner- 
 ships. {Laws of l%it, chap. 12^.) 
 
 Fees. 
 
 The fee for such acknowledgment is twenty-five cents. (2 
 E. 8. 637, \ 29.) 
 
 8. Racing. i 
 
 All running, trotting, or pacing of horses, or any other ani- 
 mals for any bet or stakes, in money, goods, or other valuable 
 thing, or for any reward to be. given to the owner or rider of 
 any animal which shall excel in speed, excepting such as are by 
 special laws for that purpose expressly allowed, are deemed 
 racing within the meaning of the statute, and are declared to be 
 common and public nuisances and misdemeanors, (2 R. 8. 672, 
 § 55,) punishable by a fine, not exceeding five hundred dollars, 
 or by imprisonment, not exceeding one year. It is the duty of 
 all officers concerned in the administration of justice, to attend 
 at the place where they know Or are infornied that any race is 
 about to be rim contrary to the provisions of law, and there to 
 give notice of the illegality of such contemplated race, and 
 endeavor to prevent it, by dispersing the persons collected, and 
 by all other means in their power. Upon his own view of per- 
 sons offending against these provisions, as well as upon the testi- 
 mony of others, a Justice of the Peace may issue warrants for 
 the immediate apprehension of the offenders, to the end that 
 they may be compelled to enter into recognizances, with suffi- 
 cient sureties, for their good behavior and for their appearance 
 at some proper Court* to answer for their offences. (2 R. 8. 
 672, ^ 56.) 
 
 ' The Court of Sessions of the county is such Court. 
 
RAGING. 849 
 
 § 319. Warrant to apprehend Persons engaged in Racing. 
 County, ) g^. 
 Town of > i 
 
 To any constable of said covmty, greeting: 
 
 You are hereby commanded, in the name of the people of the 
 State of New York, forthwith to take A B, C D, and E F, who 
 are charged by me, J H B, a Justice of the Peace of the said 
 town, upon my own view, [or, charged upon the oaths of B A 
 and D C, before me, J H B, a Justice of the Peace of the said 
 town,] with having been engaged, on the day of , 
 
 18 , [or, this day,] at the town of , in said county, in 
 
 running and racing, and causing to be run and raced, certain 
 horses there, for a bet or stakes in money, contrary to the pro- 
 visions of the statute concerning racing, and to the common 
 nuisance of the public, and to bring them before me at my office 
 in said town, there to be dealt with according to law. 
 
 Given under my hand and seal, this day of , 18 . 
 
 J H B, [l. s.] ■ 
 Justice of the Peace. 
 
 \ 320. Recognizance. 
 State of New York, ) ^g. 
 County, \ 
 
 We, C D and E F, of , in said county, acknowledge our- 
 selves to be severally indebted to the people of the State of 
 New York J that is to say, the said C D, in the sum of 
 dollars, and the said E F in the sum of dollars, to be 
 
 well and truly paid, if default shall be made in the condition 
 following: 
 
 The condition of this recognizance is such, that if the said 
 C D shall personally be and appear at the next Court of Ses- 
 sions to be held in and for the said county, then and there to 
 answer to a complaint against him for [here state the coinplaint,'\ 
 and to do and receive what shall by the Court be then and there 
 enjoined upon him, and shall not depart the said Court without' 
 leave, then this recognizance to be void; otherwise, of force. 
 
 C D. ("l. s.] 
 E F. [l. s.) . 
 
 Taken, subscribed, and acknpwledged, the day of , 
 
 before me, J H B, Justice of the Peace. 
 
 Fees. 
 
 The fees allowed by law for services under thi^ statute are aS' 
 
 follows; 
 54 
 
850 NEW YOEK JUSTICE. 
 
 To Justices.^ A warrant, nineteen cents; 
 
 Drawing, copying and certifying a recognizance, twenty-five 
 cents; 
 
 Taking and certifying the acknowledgment of any instrument 
 which is required to be acknowledged before a Justice, twenty- 
 five cents; 
 
 Administering an oath or affirmation, twelve and a half cents. 
 (2 R. S. 637, §§ 28, 29.) 
 
 To Constables.^ Serving a warrant, nineteen cents; 
 
 Mileage, going only, for each mile, six cents, (id. 647, § 40.) 
 
 9. Removal of Constables. 
 
 If any constable has collected any money on execution, and a 
 recovery therefor has been had against his sureties, upon a com- 
 plaint thereof being made to any three Justices of the same 
 town, they must summon such constable to appear before them, 
 to show cause why he should not be removed from his office. 
 (id. 272; § 268.) This summons may be made out by two of 
 such Justices, upon a meeting of all three, (id. 555, § 27.) 
 
 If such complaint be established to the satisfaction of such 
 Justices, or of any two of them, after a heai'ing of the parties, 
 or after the refusal or neglect of the constable to appear upon 
 such summons, they must, by an instrument under their hands, 
 remove such constable from his office, assigning therein the 
 reason of such removal, and must file the same in the office of 
 the town clerk, who must forthwith cause a certified copy 
 thereof to be served on such constable. (2 JR. S. 272, § 269.) 
 
 Upon the service of , a copy of such instrument, certified by 
 the town clerk, on the constable named therein, such constable 
 will cease to have any power or authority as such, and his 
 office will be deemed vacant, (id. 273, § 270.) 
 
 Fees. 
 No fees are prescribed for services under this statute. 
 
 10. Town Auditors. 
 
 The supervisors, town clerk, and Justices of the Peace, or 
 any two of such Justices, of the several towns in this State, 
 constitute a board of town auditors for the purpose of auditing 
 
TOWN AUDITORS, 851 
 
 and allowing the accounts of all charges and claims payable by 
 their respective towns. {Laws of 1840, chap. 305, ^ 1.) The 
 board must meet annually for this purpose, at the place of hold- 
 ing the last town meeting, on the last Thursday preceding the 
 annual meeting of the board of supervisors of the county. 
 {id. § 2; Laws of 1844, cha^). 228.) 
 
 The board of town auditors shall, in addition to the authority 
 now invested in such board, have the exclusive power, and it 
 shall be their duty, at their annual meeting, to audit the 
 accounts of justices of the peace and constables, for fees in 
 criminal cases, which are by law chargeable to any such town, 
 and the amount thereof shall be included in their certificate. 
 {Laws of 1860, chap. 58, p. 68.) 
 
 The board must make two certificates, to be signed by a 
 majority, specifying the name of the person in whose name the 
 account is drawn, the nature of the demand, and the amount 
 allowed. One of these certificates is to be delivered to the 
 town clerk, to be kept by him on file for inspection, and the 
 other is to be delivered to the supervisor, to be by him laid 
 before the board of supervisors at their annual meeting. {Laws 
 of 1840, chap. 305, § 3.) 
 
 No account can be audited by the board of town auditors for 
 any services or disbursements, unless it is made out in items, and 
 accompanied by an affidavit of the claimant, (to be filed with it,) 
 that the items of the account are correct, and that the disburse- 
 ments and services charged have in fact been made or rendered, 
 or are necessary to be made or rendered at that session of the 
 board, and that no pai't of the account has been paid or satisfied. 
 The chairman of the board may administer the oath to the claim- 
 ant. {Laws of 1845, chap. 180, § 24; Laws of 1847, chap. 490, 
 \ 2.) Notwithstanding the verification of the account, the board 
 may require further proof of its accuracy. {Laws of 1845, chap. 
 180, § 25.) No town officer can be allowed any per diem com- 
 pensation for his services, unless expressly provided by law. 
 {id. \ 23.) 
 
 It is also the duty of the board to make annually brief ab- 
 stracts of the names of all persons who have presented accounts 
 to be audited, with the amount claimed by each, and the amount 
 finally audited. The abstracts are to be delivered to the clerk 
 
852 NEW YORK JUSTICE. 
 
 of the board of supervisors, and printed with the other statements 
 required to be printed by him. [Laws of 1847, chap. 455, § 24.) 
 
 § 321. Affidavit to attach to an Account. 
 
 County, ss: 
 
 E F, of said county, being duly sworn, says, that the items 
 for services and disbursements mentioned in the foregoing 
 account by him presented [or, claimed,] are in all respects cor- 
 rect; that such disbursements and services have in fact been 
 made or rendered, or are necessary to be made or rendered at 
 this session of the Board; and that no part thereof has been 
 paid or satisfied. 
 
 Sworn to, this day of , ? E F. 
 
 18 , before me, 5 
 
 A B, Claairman of the Board of Town Auditors of 
 
 § 322. Certificate of Town Auditors. 
 
 County, ? g. 
 Town of , 5 ' 
 
 We, the undersigned, composing the Board of Town Auditors 
 of said town, do hereby certify, that we have this day audited 
 and allowed to E F, Commissioner of Highways of said town, 
 by whom the foregoing account has been presented to us, the 
 sum of dollars, as and for his services as such Commis- 
 
 sioner, [insert, and the disbursements necessarily paid out by 
 him in the execution of his duties, if necessary,^ up to, and 
 including, the day of , instant; and that we find a 
 
 balance of dollars and cents, to be due by the said 
 
 E F, to the town of ; [or as the balance inay 6e.] 
 
 Dated at , the day of , 18 . 
 
 A B, Supervisor. 
 C D, Town Clerk. 
 , GH, 
 &c., &c., 
 
 > Justices. 
 
 ^ 323. Abstract of Claims audited by the Town Auditors. 
 
 Abstract of the names of all persons who presented accounts 
 to be audited, to the Board of Town Auditors of the town of 
 , on the day of , 18 , with the amounta 
 
 claimed by each, and the amounts finally audited. 
 

 VACANCIES IN TOWN OFFICES, 
 
 
 853 
 
 Names. 
 
 Title of Office, or nature of claim of services. 
 
 Amount Amount 
 claimed, audited. 
 
 John Bvown 
 
 Justice of the Peace 
 
 $50 50 
 60 90 
 78 00 
 
 $40 50 
 
 John Doe 
 
 James Thompson 
 &o., &e.. 
 
 Town Superintendent of Common Schools 
 
 60 00 
 78 00 
 
 &C.3 &c. 
 
 Total 
 
 
 
 
 
 
 
 Town of ; ss: 
 
 We do hereby certify that the foregoing abstract is correct. 
 Dated , the day of , 18 . 
 
 DEL, Supervisor. 
 
 S G, Town Clerk. 
 
 HF, 
 
 ST, 
 
 &c., &c., Justice of the Peace. 
 
 Fees. 
 
 There is no provision in the statute giving fees to Justices for 
 their service under this act. 
 
 I 
 
 11. Town Meetings. 
 
 It is the duty of the Justices of the Peace of each town to 
 attend every town meeting held therein; and such of them as 
 are present must preside, and see that the meeting is orderly 
 and regularly conducted. The Justices so presiding have the 
 like authority to preserve order, to enforce obedience, and to 
 commit for disorderly conduct, as is possessed by a board of 
 inspectors at a general election. (1 li. S. 342, §§ 11, 12.) And 
 they may make a parol order for the removal of any disorderly 
 person who disturbs the business of the meeting; an order in 
 writing is not necessary. {Parsons vs. Brainard, 17 Wend. 572.) 
 
 Fees. 
 
 For every day's attendance, each Justice is entitled to one 
 dollar and twenty-five cents. (1 R. S. 356, § 50.) 
 
 12. Vacancies in Town Offices. 
 
 If any town neglects, at its annual town meeting, to choose 
 any of its town officers, it is lawful for any three Justices of the 
 Peace of the town, by warrant under their hands and seals, to 
 appoint such officers. (2 B. 8. 347, § 31.) 
 
854 NEW YORK JUSTICE. 
 
 § 324. Warrant appointing Town Officers. 
 
 State of New York, "j 
 
 County, > 
 
 Town of J 
 
 The ^aid town having neglected, at its last annual town meet- 
 ing, to choose a town superintendent of common schools, the 
 undersigned, Justices of the Peace of the said town, pursuant 
 to section 31, of article 3, of title 3, of chapter 11, of part 1, 
 of the Revised Statutes of the said State, hereby appoint A B 
 of said town to be superintendent of common schools of said 
 town. 
 
 Given under our respective hands and seals, at afore- 
 
 said, this day of , 18 . 
 
 [Signatures of Justices.^ [l. s.] 
 
 The Justices must file this warrant with the town clerk, who 
 is to give notice to the person appointed. (2 id. 347, ^ 32.) 
 
 Any three Justices may also, for good cause shown, accept 
 the resignation of any town officer of their town. If accepted, 
 by them, notice must be given to the town clerk, (ed. § 33.) 
 
 ^ 325. Notice of Acceptance of Resignation. 
 
 State of New York, \ 
 
 County, \ ss: 
 Town of , J 
 
 To the town clerk of the said town : 
 
 You are hereby notified, that we, the undersigned. Justices 
 of the Peace of the said town, have, for good cause shown, 
 accepted the resignation of A B \the office^ of said town. 
 Dated at , this day of , 18 . 
 
 [Signatures of Justices.^ 
 
 Vacancies in all town offices, (except the offices of supei-visor, 
 overseer of the poor, collector, assessor, commissioner of high- 
 ways, and overseer of highways,) occurring by death, resigna- 
 tion, removal, incapacity, or refusal to serve, may be supplied 
 by warrant in the manner pointed out. {id. 348, ^ 36.) 
 
 A vacancy in the office of assessor, occasioned by either of the 
 above causes, may be supplied, until the next succeeding annual 
 town meeting, by an appointment in writing, under the hands 
 of two Justices of the Peace of the town. {Laics of 1845, chap. 
 180, kh 2, 4.) 
 
VACANCIES IN TOWN OFFICES. 855 
 
 If any person chosen or appointed to the office of collector of 
 any town or ward, refuses to serve, or dies, resigns, or removes 
 out of his town or ward, before he has entered upon or com- 
 pleted the duties of his office, or is disabled from completing 
 the same by reason of sickness, or any other cause, the super- 
 visor and two Justices of such town or ward have power to ap- 
 point a new collector. (1 B,. 8. 399, § 11.) 
 
 A vacancy in the office of commissioner of highways is sup- 
 plied by an appointment in writing, under the hands of any 
 three Justices of the Peace, or two Justices and the supervisor 
 of the town. {Laws of 1847. chap. 455, § 2, p. 581.) 
 
 A vacancy in the office of overseer of highways is filled by the 
 commissioners of highways. (1 R. 8. 504, § 14.) 
 
 In case of a vacancy in the office of inspector of election in 
 any town, or if any inspector shall be absent, or shall have 
 ceased to be a resident of such district, or shall be unable to 
 attend and hold any election in his district, the supervisor or 
 town clerk and Justices of the Peace in such town, must meet 
 at such time and place as shall be appointed by the supervisor, 
 or in case of his absence or inability or a vacancy in his office, 
 by the town clerk, and must designate and appoint so many 
 electors of such election district, as shall be necessary to supply 
 such vacancy, to be inspectors of election for such district, 
 and must file a certificate of such appointment in the office of 
 the town clerk; and the persons thus appointed will be inspec- 
 tors of such election for such district. {Laws of 1842, chap. 
 130, title 3, § 22.) 
 
 When a vacancy occurs in the office of overseer of the poor, 
 or supervisor, occasioned by refusal to serve, or death, resigna- 
 tion, removal, or incapacity, it is the duty of the town clerk, 
 within eight days thereafter, to call a special town meeting for 
 the purpose of filling the same. {Laws of 1830, chap. 320, § 2.) 
 If the electors do not, within fifteen days after the vacancy 
 occurs, supply it, by an election at town meeting, three Justices 
 of the Peace of the town may appoint a person to fill it, by a 
 warrant under their hands and seals, in the same manner as in 
 a case where there has been a neglect to elect. (1 B. /S',^348, 
 ^35.) 
 
 If the electors of a town make no election at the regular town 
 meeting, they cannot make an election at a subsequent meeting, 
 
'856 NEW YORK JUSTICE. 
 
 though held within fifteen days; and the three Justices may 
 supply the vacancy without waiting the fifteen days. (Wildy 
 vs. Washburn, 16 Johnson 49.) If the annual meeting failed to 
 elect a supervisor, it is competent for the three Justices to 
 appoint a suitable person, who is entitled to hold the office, 
 notwithstanding a person was elected as supervisor at a special 
 town meeting. The provision providing for a special election, 
 relates to cases where officers have been duly elected or ap- 
 pointed, and the offices have subsequently been vacated by 
 refusal to serve, &c. {People vs. Van Home, 18 Wend. 515.) 
 Whenever a vacancy occurs in any town office which Justices 
 are authorized to fill, and there are less than three Justices in 
 the town, the requisite number may be made up by calling in 
 one or more Justices from an adjoining town; and the three 
 Justices so associated have the same power to fill a vacancy, as 
 if they were respectively Justices of the town in which the 
 vacancy occurred. [Laws of 1830, chap. 320, ^ 3.) 
 
 12. Justice to act as Coroner. 
 
 Any justice of the peace, in each of the several towns and 
 cities of this State, is hereby authorized and empowered, in 
 case the attendance of a coroner cannot be procured within 
 twelve hours after the discovery of a dead body, upon which 
 an inquest is now required by law to be held, to hold an inquest 
 thereon in the same manner and with the like force and effect as 
 coroners. 
 
 In all cases in which the cause of death is not apparent, it 
 shall be the duty of the justice to associate with himself a 
 regularly licensed physician, to make a suitable examination 
 for the discovery of said cause. 
 
 Each and every justice of the peace who shall hold inquests 
 by virtue of this act, shall receive the same fees as are now 
 allowed by law to coroners. {Laws of 1864, chap. 379.) 
 
INDEX. 
 
 ABANDONING CHILD, 
 
 complaint for 546 
 
 punishment for 685 
 
 Abatement, 
 
 pleas in, in ciVil actions, abolished, 158 
 [See Pleas.'i 
 
 Abduction, 
 
 complaints for 545 
 
 punishment for 609 
 
 Abortion, 
 
 complaint for 553 
 
 punishment for 598 
 
 Abscondins Pakbnts, 
 
 [See Parents Absconding.^ 
 
 Absence, 
 
 evidence of,of subscribingwitnesses 413 
 
 Acceptance, 
 
 bj purchaser, necessary 48 
 
 not a bar to an action for damages 60 
 
 Accessories, 
 
 complaint against, after the fact. 542 
 punishment of, before the fact . . . 585 
 punishment of, after the fact .... 610 
 none, in petit larceny 629 
 
 Accomplices, 
 
 testimony of, may be taken 574 
 
 Account Books, 
 
 [See Shop- Books.] 
 
 Accounts, 
 
 amount of, cognizable by justices 27, 32 
 
 no interest on unliquidated 72 
 
 statute of limitations as to actions 
 
 upon 138, 144 
 
 court may require, to be exhibited 209 
 
 actions on 210 
 
 defence founded on 210 
 
 over $400 not within jurisdiction of 
 justice 238 
 
 Acknowledgment, 
 
 by partners, after dissolntion .... 106 
 to take case out of statute of limi- 
 tations 141, 144, 422 
 
 I of authority to act as attorney. . . 205 
 of instruments In New York and 
 
 elsewhere 391 to 399 
 
 of instruments generally 408 
 
 of certificates of limited partner- 
 
 , ships 848 
 
 fees therefor 848 
 
 and proof of conveyances, S^c, 
 
 who may take 686 
 
 requisite, to entitle instrument to 
 be recorded 686 
 
 Pago 
 Acknowledgment, 
 
 party making, must be known . . , 686 
 
 statement by subscribing witness. 686 
 subscribing witness must be known 686 
 
 who may prove identity of grantor 687 
 married women to be examined 
 
 apart 687 
 
 private examinations, unnecessary 
 
 when 687 
 
 erasures and interlineations, to be 
 
 noted 687 
 
 certificate of, to be endorsed 687 
 
 contents of such certificate 687 
 
 meaning of term " conveyances " 688 
 
 satisfaction of judgment 689 
 
 forms for 689 to 697 
 
 [See Conveyances, and Evidence.] 
 Acquittal, 
 
 of one of several defendants 281 
 
 Actions, 
 
 civil, where to be tried by justices 21, 34 
 for penalties, where not to be tried 
 
 by them 24 
 
 definition of 26 
 
 what causes of, cognizable in jus- 
 tices' courts 26 
 
 what not cognizable in such courts 27 
 
 on indivisible contracts 32 
 
 on accounts 33 
 
 venue in, for injuries to real pro- 
 perty 35 ' 
 
 venue in, far personal property 
 
 distrained 35 
 
 venue in, for penalties 35, 122 
 
 venue in, against public officers . . 35 
 by warrant, in favor of non-resi- 
 dents 35 
 
 by and against non-residents 36 
 
 in justices' courts, where to be 
 
 brought 36 
 
 by and against town and county 
 
 officers 36, 158 
 
 on contracts 39 
 
 for breach of warranty 55 
 
 by pawners 61 
 
 for money paid, laid out, <!co.. 61, 62 
 
 for use and occupation of lands. . . 63 
 
 on guaranties of notes 72 
 
 on illegal contracts.... 77 
 
 for horses hired on Sunday 81 
 
 for false recommendation as to 
 
 credit 84 
 
 for false affirmation as to character 85 
 
858 
 
 INDEX. 
 
 Page 
 
 Actions, 
 
 for fraud in sale of horses .... 85 to 87 
 
 death of party after verdict 95 
 
 by executors andadministrators 94, 151 
 by and against corporations . . 95, 145 
 by and against counties and towns. 97 
 
 between partners 106 
 
 for Injuries to the person 110 
 
 for injuries to real property. 110, 113 
 for injuries to personal property . . 104 
 
 for trespass 110 to 114 
 
 for injuries by domestic animals. . 116 
 
 117 
 forpenalties and forfeitures 119 to 125 
 
 for cutting down trees 119 
 
 practice in, in name of people . . . 119 
 practice In, under various town 
 
 charters 120 
 
 compromise of, for penalties 122 
 
 process in, for penalties 123 
 
 complaint in, for penalties 123 
 
 in which canal boats may be de- 
 tained 124 
 
 jurors, &e., in, for penalties 124 
 
 under mechanics' lien law. . . 128, 132 
 times of commencing civil. 136 to 145 
 
 on judgments 139, 456 
 
 when commenced 139 
 
 attempts to commence 140 
 
 new, on reversal of judgments . . . 141 
 
 parties to civil 145 to 156 
 
 by and against public officers and 
 
 bodies 145, 146 
 
 against counties 147 
 
 against towns 147, 149 
 
 on contracts in behalf of towns .. 147 
 by foreign corporations .... 147 to 151 
 by and against joint-stock associ- 
 ations 148 
 
 by and against banks 1 48 
 
 maliciously instituted 151 
 
 to be prosecuted by real party . .. 151 
 
 by assignees 151 
 
 by and against married women. . . 151 
 
 by infants 153, 154 
 
 plaintiff may conduct, in person.. 152 
 
 279 
 
 do not abate by death, Ac 154 
 
 substitution of creditor for defen- 
 dant in 155 
 
 how commenced 156 to 173 
 
 when commenced without process. 156 
 
 when commenced by warrant 153 
 
 when commenced by summons,... 156 
 when commenced by attachment . 165 
 
 against supervisors 1 56 
 
 when continued by warrant 165 
 
 parties to, when exempted from 
 
 arrest 176 
 
 hearing of, when commenced by 
 
 attachment 188 
 
 parties may defend in person 202, 279 
 by and against idiots and lunatics 204 
 on accounts, and instruments for 
 
 the payment of money 210 
 
 what causes of, may be united.... 212 
 complaint in, for violation of sta- 
 tute 213 
 
 Actions, 
 
 on demands bought for suit 220 
 
 plea of former 222 
 
 on due-bills 228 
 
 may be arrested by a tender 231 
 
 tender after, brought 231 
 
 payment by defendant in, on bonds 232 
 
 in what, set-off allowable 233 
 
 set-off in, by personal representa- 
 tives 237 
 
 on demands which might have been 
 
 set-off 237 
 
 set-off in, for tort 238 
 
 set-off in, for breach of warranty. 238 
 set-off in, against personal repre- 
 sentatives 238 
 
 in what, recoupment allowed . . , . 240 
 to be discontinued on plea of title 243 
 and to be brought in supreme 
 
 court 244, 245 
 
 adjournments of 248 to 260 
 
 on bonds on adjournments 253 
 
 against defaulting witnesses 275 
 
 jurors in, for penalties, &o 286 
 
 challenges in civil 290 
 
 formal proceedings on trial of 293 to 306 
 parties to, competent as witnesses 365 
 examination of parties to . 367 to 372 
 
 on canal contractors' bonds 395 
 
 evidence in particular 416 to 439 
 
 costs in civil 465 to 472 
 
 for issuing execution on. satisfied 
 
 judgment '••• 476 
 
 against bidders refusing to take 
 
 property 489 
 
 for detaining defendant in jail. . . . 495 
 
 for not returning execution 496 
 
 statute of limitations as to criminal 524 
 
 for violation of excise law 766 
 
 by and against hawkers andpedlers 793 
 for proceedings under highway act 799 
 for obstructing highways 803 
 
 Adjournment, 
 
 in consec[uence of amendment.... 218 
 when for more than ninety days.. 257 
 not good, when justice absent.... 257 
 
 illegal, a discontinuance 257 
 
 examples of irregular 257 to 259 
 
 irregularity of, may be waived. . . 259 
 
 general rules as to 260 
 
 commission may be issued after.. 262 
 
 till return of attachment 273 
 
 when witness refuses to testify 279, 297 
 on motion of d^endant, 
 
 on warrant 249, 255 
 
 when witness refuses to swear or 
 
 testify 251, 256 
 
 on short summons 251 
 
 for how long 251, 256 
 
 when not allowed 251, 256 
 
 when to be granted 251, 253 
 
 steps to secure 252 
 
 on issuing commission 251 
 
 oath to materiality of witness 251, 253 
 
 security for 253 
 
 bond on, where body execution can 
 issue 253 
 
INDEX. 
 
 859 
 
 Adjournment, 
 
 botd on, where such oxeeution 
 
 cannot issue 255 
 
 second, when 256 
 
 new bond not neosssary 256 
 
 third, when 257 
 
 testimony of witness need not bo 
 
 stated 257 
 
 when for more than ninety days.. 267 
 on motion of justice, 
 
 for eight days 248 
 
 not allowed on warrant 248 
 
 on summons and attachment 248 
 
 must be on return of process 248 
 
 not allowed a second time 248 
 
 when irregular 249 
 
 on motion ^plaintif, 
 
 on return of process 249 
 
 on joinder of issue without process 249 
 
 affidavit for 250 
 
 for how long 251 
 
 not allowed a second time 250 
 
 on warrant in favor of non-resident 250 
 when witness refuses to swear or 
 
 testify 251 
 
 on short summons 251 
 
 when not allowed 251 
 
 on issuing commission 251 
 
 of Marine Court, in New York . . . 252 
 when for more than ninety days . , 257 
 Administrators, 
 
 cannot bo sued in justices' courts 28, 36 
 
 are personal represents tives 94 
 
 to collect debts due their intestate 94 
 
 letters to 95 
 
 actions by 95 
 
 letters to, evidence 05 
 
 statute of limitations as to 141 
 
 may sue in justices' courts 145 
 
 set-off in actions by 238 
 
 set-off in actions against 238 
 
 admissions by one of several 344 
 
 when, may assign apprentices' in- 
 dentures 704 
 
 Admissions, 
 
 by agents 100, 336 
 
 [/See Evidence.'] 
 Affidavits, 
 
 for ' body execution 163 
 
 for warrant 161 
 
 for attachment 165 to 172 
 
 for long attachment, under Revised 
 
 Statutes 170 
 
 for long attachment, under non- 
 imprisonment act 171 
 
 for short attachment, against non- 
 resident 1 71 
 
 that justice is a material witness. 208 
 of service of notice of application 
 
 for commission 263 
 
 of service of notices generally .... 283 
 ex parte, not to be given in evi- 
 dence 294 
 
 in what form to be taken 296 
 
 who to take, in other states and 
 
 countries 386 
 
 by printers, of publication, 405 
 
 on confession of judgment 452 
 
 Page 
 Affidavits, 
 
 to procure discharge from impri 
 
 sonment 495 
 
 to acecmpany account of fees 677 
 
 justices may take 698 
 
 oath to deponent 698 
 
 fee for taking 699 
 
 to authorize removal of tenant. . . 817 
 ofservice of sammons on tenant. . 821 
 by tenant, to obtain trial by jury. 824 
 
 by town ofiioers to accounts 852 
 
 on application to sell liquor 777 
 
 for personal property 198 
 
 of claim by third person 201 
 
 for certiorari 668 
 
 Affirmation, 
 
 of witnesses 296 
 
 Affrays, 
 
 justices have power to quell 525 
 
 persons engaged in,may be arrested 
 
 without process 525 
 
 complaint for making 554 
 
 Agency, 
 
 evidence of ., 415 
 
 Agents, 
 
 their liability for money of their 
 
 principals 62 
 
 of corporations 96 
 
 who may appoint 97 
 
 who may be appointed 98 
 
 same agent cannot act for both 
 
 parties 98 
 
 cannot delegate powers 98 
 
 how appointed 98 
 
 when acts of, bind principals, 98 to 103 
 
 general 98, 99 
 
 special 99 
 
 powers of general 99 
 
 warranty by 100 
 
 when personally liable 100, 103 
 
 admissions, declarations, &c., of. . 100 
 
 liable for fraud 101 
 
 may sell on credit 1 01 
 
 their liability for so doing 101 
 
 when liable for conversion 102 
 
 must account 102 
 
 must pursue their authority 103 
 
 tender to 230 
 
 when admission of, bind principals, 335 
 competent witnesses against prin- 
 cipals 367 
 
 evidence of authority of 416 
 
 Agreements, 
 
 void by statute of frauds.... 40 to 60 
 form of, to answer for debt of 
 
 another 44 
 
 in consideration of marriage . . 40 to 46 
 to pay for appointment to office . . 79 
 
 against public policy 77, 79 
 
 not to bid at auctions 79, 80 
 
 Albany, 
 
 five justices of the peace in 12 
 
 the time and manner of their elec- 
 tion 12 
 
 justices' courts in 12, 21 
 
 jurisdiction of such court 30 
 
 jurisdiction of aldermen of 119 
 
 fees of constables, &c., in 472 
 
860 
 
 INDEX. 
 
 Page 
 
 Albany, 
 
 powers and duties of police justicea 
 
 in 520 
 
 special sessions in. 651 
 
 Aliens, 
 
 incompetent as jurors 286 
 
 depositions of, evidence 388 
 
 Allegany, 
 
 jurors in county of 285 
 
 Alms-House, 
 
 keepersof, exempt from jury duty, 287 
 
 Ambassadors, 
 
 exemption of, and their servants, 
 
 from arrest 178 
 
 Amendment, 
 
 after demurrer 213 
 
 powers of justice rcRpeeting 218 
 
 when, may be made 218 
 
 costs on 218 
 
 by inserting true name 219 
 
 of pleadings generally 300 
 
 of justices' return 503 
 
 Animals, 
 
 actions for injuries by domestic. . . 116 
 
 119 
 
 complaint for cruelty to ^. 554 
 
 punishment for poisoning.... 620, 630 
 
 Answer, 
 
 may be oral or in writing 210 
 
 demurrer to 210, 211 
 
 permitted after demurrer 214 
 
 contents of 218 
 
 objections to be taken by 217 
 
 no reply to 217 
 
 plea to the jurisdiction.. ..220 to 222 
 
 plea of former action 222 
 
 plea of payment 223 
 
 plea of tender 223 to 233 
 
 must contain notice of set-off 236 
 
 must contain notice of recoupment 240 
 
 plea of title 243 
 
 in such case, must be written 243 
 
 form of, setting up title 243 
 
 in supreme court, must be the same 245 
 
 Antwerp, 
 
 competency of justices, jurors, .fcc, 
 
 in 286 
 
 Appeals, 
 
 from justices' courts 497 
 
 costs and fees on 507 
 
 criminal J 
 appeal to court of sessions from 
 
 judgment of special sessions... 665 
 
 new trial may be granted.... 665, 666 
 
 who may appeal 666 
 
 when and how taken, 
 
 notice of 497 to 511 
 
 notice must state grounds of 499 
 
 notice of, on whom to be served.. 499 
 
 costs and fees of justice to bo paid, 500 
 
 time for, cannot be enlarged 501 
 
 when notice to be served 501 
 
 form of notice 501 
 
 notice must be stamped 501 
 
 stay of execution on, 
 
 security to be given. 502 
 
 form of security 502 
 
 undertaking to be approved 503 
 
 Appeals, 
 
 effect of delivery of undertaking, 503 
 to whom undertaking to he deliv- 
 ered 503 
 
 notice' of filing undertaking, to be 
 
 given 503 
 
 return to, 
 
 within what time to be made 503 
 
 when justice has removed 504 
 
 amendment of, may be ordered. • . 504 
 
 form of 504 
 
 to be annexed to judgment 505 
 
 proceedings in appellate court, 
 amendments may be granted on 
 
 terms 508 
 
 witnesses may be examined 507 
 
 appeal, when to be heard 506 
 
 notice of argument to be given. . . 506 
 appeal, when to be dismissed.... 506 
 judgment to be reversed, on default 
 
 of respondent 506 
 
 appeal to be heard on original pa- 
 pers 506 
 
 judgment, how to be given 506 
 
 new trial may be ordered 507 
 
 restoration may be ordered 509 
 
 costs, how to be awarded 509, 511 
 
 certiorari, 
 
 by whom granted 665 
 
 who may apply for 666 
 
 how allowed 666 
 
 to whom delivered , 666 
 
 return may be compelled 666 
 
 copy served on district attorney., 666 
 notice of argument or return of. . . 667 
 
 may be quashed 668 
 
 party may give recognizance. .. 667 
 
 recognizance to be filed 667 
 
 recognizance may be continued... 667 
 
 writ of supersedeas ."v.... 668 
 
 aflBdavit for 668 
 
 endorsement on affidavit 670 
 
 form of 670 
 
 endorsement on 670 
 
 recognizance on, form of 671 
 
 [See Bastards and Landlord and.Tenant.^ 
 Appellant, 
 
 [See AppeaLI 
 Appointment. 
 
 of guardian for infant plaintiff. . . 153 
 Apprentices, 
 
 who maybe 700 
 
 binding of, when valid 700 
 
 must execute indentures 700 
 
 executors may bind out 700 
 
 superintendents of the poor may 
 
 bind out 701 
 
 overseers of the poor may bind out 701 
 when Indian children not to be 
 
 bound a^. 701 
 
 age of, to be inserted in indentures 701 
 indentures, prima facie evidence 
 
 of age 701 
 
 money paid or agreed for, to be 
 
 inserted in indentures 702 
 
 contents of indentures 702 
 
 to be instructed, and have a bible 702 
 infants from beyond the sea mav be 702 
 
INDEX. 
 
 861 
 
 AtPBBNTIOBS, 
 
 oontinuiDg bejond term of inden- 
 tures , 702 
 
 absenting themselves to serve double 
 
 time ...._............ 703 
 
 refusing to serve, may be arrested 703 
 complaints by masters against. • • • 704 
 complaints by, against masters. .. 704 
 indentures of, when to be assigned 705 
 
 employed by third persons 706 
 
 i forms 705 to 714 
 
 selling liquor to . . 763, 770 
 
 liquor not to be sold to, of habitual 
 drunkards 787 
 
 Akbitbators, 
 
 justices may administer oaths to. . 845 
 and compel witnesses to attend 
 
 before 845 
 
 fees therefor 846 
 
 Aruv, 
 
 exemption of ofScers and soldiers 
 
 in, from arrest 177 
 
 aclinowledginents byj in Mexico.. 393 
 
 Aeeest, 
 under civil process, 
 
 plaintiff to be notified of defend- 
 ant's. . 162 
 
 what constitutes 174 
 
 of defendant, in his dwelling 177 
 
 who exempt from ...,...,.. 176 to ] 78 
 
 after escape 178, 190 
 
 irregularly made, void 190 
 
 under criminal process, 
 
 who liable to 537 
 
 [See Constables, and Warrants.] 
 
 Abson, 
 
 complaints for, in all the degrees. 542 
 
 in the first degree 584 
 
 in the second degree 585 
 
 in the third degree 586 
 
 in the fourth degree 587 
 
 punishment of . . . ■ 587 
 
 Assault and Battery, 
 
 civil actions for, cannot be tried by 
 
 justices 27 
 
 actions for, abate by death 95 
 
 act-ions for when to be commenced 138 
 
 complaint for 540 
 
 warrant for 562 
 
 triable by special sessions 629 
 
 Assault, 
 
 complaints for ^ 545, 546, 547 
 
 punishment for, with deadly 
 
 weapons 588 
 
 punishment for, with intent to 
 commit felonies 610 
 
 Assessors, 
 
 vacancy in office of, how filled .... 854 
 
 Assignee, 
 
 action by 151 
 
 Assignment, 
 
 of debt, transfers chattel mortgage 55 
 date of, prima facie evidence .... 239 
 
 ASSISNOE, 
 
 examination of, as witness. . .371, 372 
 Associations, 
 
 actions by and against joint-stock 148 
 to. 151 
 
 Page 
 
 Assumpsit, 
 
 term abolished 416 
 
 definition of, by Code, substituted 417 
 [See Contracts and Evidence.] 
 
 Asylum, Lunatic, 
 
 [See Lunatics.] 
 
 Attaciiment, 
 
 to issue to county of justice 35 
 
 actions, when commenced by 156 
 
 to be filled up 169 
 
 need not to he scaled 169 
 
 to be in name of people 1 69 
 
 to be in English 169 
 
 service of 181 to 188 
 
 duration of lien created by 185 
 
 justice to wait one hour after re- 
 turn of 206 
 
 judgment on, when presumptive 
 
 evidence of indebtedness 236 
 
 adjournment by justice on 248 
 
 when allowed.. , 272 
 
 how executed 273 
 
 costs of 273 
 
 costs on, to be paid by offender. . . 466 
 levy in actions commenced by. ... 485 
 long, 
 
 statute authorizing 165, 181 
 
 to bo applied for in writing 165 
 
 afiidavit for 161, 165, 168 
 
 bond for 166 
 
 contents of 167 
 
 computation of time on 167 
 
 may be amended 167 
 
 when proper 167 
 
 nature of demands authorizing. . . . 168 
 afiidavit for, under Revised Stat- 
 utes.. , 170 
 
 affidavit for, under imprisonment 
 
 act 171 
 
 bond on 172 
 
 approval of justice on bond on... 172 
 sliort, 
 
 statute autborizing 167 
 
 to he applied for in writing 163 
 
 afSSavit for 167 
 
 bond for 168 
 
 when proper 163 
 
 nature of demands authorizing... 168 
 
 application for 169 
 
 affidavit for, against non-resident 186 
 
 bond on 172 
 
 approval of justice on bond on. . . 172 
 
 Attempt, 
 
 punishment for, to commit offence 610 
 punishment for, to induce perjury 610 
 
 Attorney-General, 
 
 twhen to commence actions for pen- 
 alties 133 
 
 Attorney, 
 
 liable for money of client 62 
 
 corporation may appear by... 152, 204 
 
 infant cannot appear by 153, 202 
 
 when exempted from arrest 176 
 
 lunatic, when to appear by 204 
 
 constable, when not to act as 205 
 
 authority to appear by 205 
 
 clerk cannot act as 205 
 
 mav make a tender 225 
 
862 
 
 INDEX. 
 
 Pago 
 
 Attorney, 
 
 admission by, binds client 348 
 
 cannot bo a witness against client 361 
 may be bail, in a criminal ease. . . 626 
 may acknowledge satisfaction of 
 judgment 689 
 
 Auburn, 
 
 three justices of the peace in 4 
 
 officers in prison at, exempt from 
 jury duty 287 
 
 Auburn Gtuards, 
 
 exempted from jury duty - , 287 
 
 Auctioneer, 
 
 memorandum of sales by 49 
 
 Auction, 
 
 memorandum of sales at 49 
 
 agreements not to bid at 79 
 
 agents, when bound as purchasers 
 at 103 
 
 Augusta, 
 
 jurors in town of , .... 285 
 
 BAGGAGE, 
 
 [See Unclaimed Baggage.} 
 Bail. 
 
 when exempted from arrest 177 
 
 who may take 608 
 
 meaning of term 623 
 
 who may offer 623 
 
 justice to judge of suffioioncy of. . . 624 
 
 by what standard 624 
 
 excessive, not to bo required 624 
 
 justice refusing to take, liable .... 624 
 justices may take, for offences 
 
 against U. S 625 
 
 may be taken for adjourned exam- 
 ination 625 
 
 by whom to be given 625 
 
 what is sufl&cient 625 
 
 minors cannot be 626 
 
 married women cannot be 626 
 
 attorneys maybe 626 
 
 may be given at any time before 
 
 conviction 628 
 
 prisoner has twenty-four hours to 
 
 give bail 636 
 
 justices cannot take acknowledg- 
 ment of, in supreme court 686 
 
 offences for which justices cannot 
 take hail, 
 
 abandoning children 585 
 
 accessories before the faet 585 
 
 administering poison 585 
 
 aiding prisoners to escape 585 
 
 arson in the first degree 584 
 
 arson in the second degree 586 
 
 arson in the third degree 586 
 
 arson in the fourth degree 587 
 
 assaults with deadly weapons 588 
 
 attempts to commit offences 588 
 
 bribery 588 
 
 burglary in the first degree 589 
 
 burglary in the second degree .... 589 
 
 compelling to marry 590 
 
 dueling 591 
 
 falsely personating others 591 
 
 forgery in the first degree 592 
 
 forgery in the eocoad degree 593 
 
 Pago 
 Bail, 
 offences for which justices can/not 
 take bail, 
 
 incest 596 
 
 kidnapping 596 
 
 larceny, when 596 
 
 manslaughter in the first degree.. 597 
 manslaughter in the second degree 598 
 
 mayhem 599 
 
 murder 584 
 
 perjury, and subornation of perjury 599 
 
 poisoning food, springs, &c 600 
 
 rape 600 
 
 robbery in the first degree 600 
 
 robbery in the second degree 600 
 
 second offences 601 
 
 sodomy 602 
 
 treason 585 
 
 offences for which justices can take bail, 
 
 abduction 609 
 
 accessories after the fact 610 
 
 assaults with intent to commit fel- 
 onies 610 
 
 attempt to commit offences 610 
 
 attempts to induce perjury 610 
 
 bigamy 611 
 
 burglary in the third degree 612 
 
 buying stolen property 612 
 
 carnal knowledge of women 612 
 
 compounding offences 612 
 
 conspiracy by persons disguised. . . 613 
 
 corrupting jurors 613 
 
 dea h by wrongful act 614 
 
 embezzlement 614 
 
 escaping from county jail 615 
 
 false tokens and pretences 615 
 
 forgery in the third and fourth de- 
 grees 615 
 
 grand larceny . . . . ^ 61 S 
 
 injuries to railroads 618 
 
 jurors accepting bribes 618 
 
 manslaughter in the tMrd and 
 
 fourth degrees 619 
 
 poisoning cattle 620 
 
 receiving property embezzled 620 
 
 second offences 620 
 
 seduction under promise of mar- 
 riage 621 
 
 severing produce from the soil. . . . 621 
 
 stealing records 622 
 
 sending threatening letters 622 
 
 violating graves, Ac 622 
 
 misdemeanors generally, 623 
 
 recognizance on giving hail, 
 
 cause of taking, must appear 626 
 
 should state authority of magistrate 626 
 
 binds to three things 626 
 
 form of condition of ..... . : 627 
 
 must be in writing 627 
 
 must be signed and sealed 627 
 
 form of 627 
 
 to what court to be certified 628 
 
 [See Fugitives from Justice, i£e- 
 cognizance, and United States."] 
 Bailee. 
 
 definition of term 57 
 
 duties and liabilities of. 58, 61 
 
 lion oft for services 60 
 
INDEX. 
 
 863 
 
 Pago 
 Bailes, 
 
 constable, of goods attaohed 182 
 
 debtor, of things tendered 225 
 
 cannot dispute bailor's title 351 
 
 Bailment, 
 
 definition of term 57 
 
 difi'orent classes of 57 
 
 liability of parties to 58 to 61 
 
 Bailor, 
 
 definition of term 57 
 
 Baltiuoub, 
 
 proof of conveyances In 392 
 
 Bank Bills, 
 
 payments in 76 
 
 tender of, when good 227 
 
 payment in counterfeit 2.27 
 
 payment in worthless 227 
 
 complaint for altering or counter. 
 
 feiting 550 
 
 Banks, 
 
 are private corporations 96 
 
 limitation of actions by and against 
 
 141, 148 
 copy certificates of incorporation 
 
 of, evidence 398 
 
 Bastards, 
 
 who are deemed 714 
 
 application to be made to justices 
 
 concerning •• 715 
 
 form of such application 715 
 
 father of, to be ascertained 715 
 
 warrant to be issued for father of. 715 
 forms of examination of mother of 715 
 
 form of warrant 716 
 
 amount of father's bond to be en- 
 dorsed 716 
 
 form of such endorsement 716 
 
 endorsement by justice in a foreign 
 
 county 717 
 
 father of, where to be taken in for- 
 eign county. .' 717 
 
 bond to be given by father in for- 
 eign county 718 
 
 form of such bond 718 
 
 fact of taking bond to be certified 
 
 on warrant 719 
 
 form for such certificate 719 
 
 father of, when to be taken before 
 
 justice issuing warrant 719 
 
 mother of, to be examined in pre- 
 sence of father 719 
 
 competency of mother when a mar- 
 ried woman 720 
 
 witnesses may be examined 720 
 
 subpoena for witnesses 720 
 
 examination may bo adjourned. .. 720 
 
 bond on such adjournment 720 
 
 father of, to be determined 721 
 
 when reputed father to be dis- 
 charged 721-724 
 
 when order of filiation to be made 721 
 
 contents of order of filiation 721 
 
 form of such order 721 
 
 justices cannot set aside order le- 
 gally made V22 
 
 reputed father to give bond 722 
 
 contents of such bond 723 
 
 form of bond on order of filiation. 723 
 
 Bastards, 
 
 when putative father to be com- 
 mitted 723 
 
 warrant to commit putative father 725 
 father, by whom detained during 
 
 examination 725 
 
 father of, not entitled to jail lib- 
 erties 725 
 
 proceedings when bond is returned 
 
 from foreign county 725 
 
 mother may be compelled to dis- 
 close father's name 726 
 
 on refusal, she may be committed 725 
 
 warrant in such case 726 
 
 when mother to be charged with 
 
 support of child 726 
 
 summons where mother has proper- 
 ty in her own right 727 
 
 order to compel mother to pay for 
 
 support of child 728 
 
 when mother to be committed, . . . 728 
 
 warrant for that purpose 729 
 
 bond by mother to appear at ses- 
 sions 629 
 
 weekly allowance may be reduced 730 
 
 order for that purpose 730 
 
 appeal to court of sessions 730 
 
 father to be discharged on marriage 
 
 or miscarriage of mother 731 
 
 sessions may bind father over .... 732 
 
 bonds to bo signed ; 732 
 
 property of parents of, running 
 
 away, may he seized 732 
 
 warrant for that purpose 733 
 
 when property to be restored 733 
 
 bond for that purpose 733 
 
 order to restore property 734 
 
 penalty for not delivering bond 
 
 taken out of county 734 
 
 proceedings where justice who is- 
 sued warrant is absent 735 
 
 fees for services under statute re- 
 lating to 735 
 
 Bath, 
 
 number of justices in 4 
 
 Battery, 
 
 justices cannot try civil actions for 27 
 [See Assault and Jiattery.} 
 Beekmantown. 
 
 has five justices 4 
 
 Bees, 
 
 injuries by 117 
 
 Beggars and Vagrants, 
 
 who are 736 
 
 to be taken before a justice 736 
 
 record of conviction to be made.. . 736 
 
 where to he committed 737 
 
 form of record of conviction 737 
 
 record, where to be filed 737 
 
 form of warrant of commitment of 738 
 persons painted and disguised, es- 
 teemed as 738 
 
 warrants to arrest such persons. .. 739 
 children begging alms, to be com- 
 mitted as 739 
 
 warrant for that purpose 739 
 
 fees for services under statute re- 
 lating to 740 
 
864 
 
 INDEX. 
 
 Page 
 
 BlGAJtY, 
 
 complaint for 552 
 
 what is 611 
 
 puoishment for Oil 
 
 Bills of Particulars, 
 
 under uiechanica' lien law. 130 to 135 
 
 Board of Excise, 
 
 [See Excise and Taverns.'] 
 
 Bolivia, 
 
 what coins of, a legal tender 227 
 
 Bonds, 
 
 Justices to file 10 
 
 actions on, injustices' courts 27 
 
 ;.' obligee may sue, when penalty of, 
 
 '' is over $200 32 
 
 in actions against canal boats , . . . 124 
 to procure attachment .... 165 to 169 
 statute coLcerning,requiredby law 165 
 
 may be amended by court 166 
 
 form of, on all attachments 172 
 
 to prevent removal of attached 
 
 property 183 to 186 
 
 by claimants of property attached 
 
 183 to 186 
 
 penalty of, in last two cases 184 
 
 not to be bought for suit 220 
 
 payment by defendant in actions on 232 
 of defendant, on adjournment 252 to 255 
 
 actions on such bonds 254-255 
 
 transcript of canal contractors', 
 
 evidence ' 389 
 
 penalty in, security for actual debt 440 
 to indemnify constable selling on 
 
 execution 487 
 
 for sale of liquor 778 
 
 of inn-keeper 779 
 
 [See Attachments, Parents Ab- 
 sconding, and Undertakings. 1 
 
 Books of Account, 
 [See Shop Boohs. '\ 
 
 Bribery, 
 
 statute definition of 588 
 
 punishment of 589 
 
 Bridge Companies, 
 
 are private corporations 96 
 
 copies certificates of incorporation 
 of, evidence 399 
 
 Broker, 
 
 who is a 49 
 
 Brook Haven, 
 
 has eight justices 4 
 
 Brooklyn, 
 
 special sessions in 656 
 
 Buffalo, 
 
 four justices in 4 
 
 recovery of penalties 121 
 
 Building Associations, 
 
 copies certificates of incorporation 
 of, evidence 398 
 
 Burden of Proof, 
 
 on party claiming under chattel 
 
 mortgage 51 
 
 on whom it rests, generally 327 to 329 
 
 rights of party holding 327 
 
 how shifted 327-328 
 
 exceptions to rule determining... 328 
 
 on plea of infancy 421 
 
 ou plea of statute of limitations.. 422 
 
 Pago 
 Burden of Proof, 
 
 on plea of payment 424 
 
 on waiver of demand, and of notice 
 
 of non-payment 430 
 
 that note was without consideration 431 
 on refusal to pay, after tender . . . 432 
 [See Evidence.'] 
 Burglary, 
 
 complaints for 548-549 
 
 what is, in the first degree 589 
 
 what is, in the second degree . . , , 589 
 punishment of, in the first and sec- 
 ond degrees 649 
 
 what is, in the third degree 612 
 
 punishment of, in the third degree 612 
 Buying Stolen Property, 
 
 punishment for 612 
 
 CAMDEN", 
 
 recovery of penalticB 120 
 
 Canal Boats, 
 
 warrant to seize, when to be issued 124 
 
 Canal Companies, 
 
 are private corporations 9G 
 
 Canal Contractors, 
 
 actions on bonds of 390 
 
 evidence in such actions , 390 
 
 Canal Maps, 
 
 originals and transcripts of, evi- 
 dence 389 
 
 Canals, 
 
 of&cers of, exempted from arrest.. 177 
 
 and from jury duty 286 
 
 maps of, evidence 389 
 
 Canton, 
 
 number of justices in 4 
 
 Carnal Knowledge of Women, 
 
 punishment of 612 
 
 Carthage, 
 
 recovery of penalties 129 
 
 Cattaraugus C junty, 
 
 jurors in 285 
 
 Cattle, 
 
 punishment for poisoning 620 
 
 Certificates, 
 
 of election of justices 5 
 
 of drawing of j ustices 6 
 
 of such drawing, evidence 7 
 
 false, as to character 84 
 
 of discharge of mechanics' liens.. 135 
 form of, to documentary evidence. 389 
 of authority of commissioners of 
 
 deeds 395 
 
 by county clerks, to proof of deeds 395 
 
 to transcript of records 396 
 
 to copy of justice's docket 461 
 
 form of, to copies by public officers 
 
 generally 462 
 
 of acknowledgment (^f conveyances 687 
 by justice, ou re-assessment of 
 
 highway damages 802 
 
 of encroachment on highway 807 
 
 of no encroachment 809 
 
 acknowledgement of, of limited 
 
 partnership 848 
 
 of town auditors ■. 852 
 
 evidence, 
 of servioe in fire oomoanies 400 
 
INDEX. 
 
 865 
 
 Certificates, 
 
 of loan coinuiissioners 401 
 
 of loss of papers 403 
 
 of marriage 403 
 
 of redemption of real estate 406 
 
 by revisers of statutes 406 
 
 of secretary of state, to laws .... 406 
 
 of unpaid taxes 407 
 
 of incorporation of villages 407 
 
 of clerks of villages 407 
 
 '■ by notaries public, of protest.... 430 
 
 of conviction, 
 
 at special sessions 647 
 
 disturbance of religious meetings. 
 
 746, 749 
 
 observance of Sunday 762, 748 
 
 profane cursing and swearing.... 753 
 [See Marriages, and Minutes of Con- 
 
 Cektiosari, 
 
 on commitment for contempt 526 
 
 provisions of Revised Statutes as 
 to Certiorari to courts of special 
 
 sessions 665 to 671 
 
 form of 670 
 
 [See Landlord and Tenant.^ 
 
 Challenges, 
 
 on account of liability to pay taxes 285 
 
 when to be made 290 
 
 two peremptory, in civil actions . . 290 
 
 to the array 290 
 
 to the polls.,.- 291 
 
 principal, how tried 292 
 
 to favor, how tried 292 
 
 two peremptory, in criminal ac- 
 tions 641 
 
 Champlain, 
 
 has five justices 4 
 
 Chahactek, 
 
 presumed to be good 321 
 
 evidence of good, not admissible 
 
 in actions for fraud 327 
 
 [See Evidence.^ 
 
 Chattel Mortgages, 
 
 statutory regulations concerning. . 
 
 SO to 56 
 
 essential requisites cf valid 51 
 
 proof necessary to sustain 51 
 
 validity of, a question for the jury 52 
 
 originals or copies to be filed 52 
 
 .copies of, to be filed yearly 52 
 
 instruments in the nature of 54 
 
 when statute inapplicable to 54 
 
 English law in relation to 54 
 
 pass, by assignment of debt 65 
 
 title to articles covered by 65 
 
 difierenoe between, and pledges.. 60 
 
 certified copies of, evidence 390 
 
 levy, after forfeiture under 480 
 
 Chattel Notes, 
 
 when and where payable 224 
 
 necessity of demand of payment of 224 
 
 Chattels, 
 
 sales and mortgage of 50 
 
 title to, in mortgagee 55 
 
 title to, warranted by vendor .... 55 
 limitation of actions for injuries to 138 
 personal, subject to attachment, li 182 
 
 55 
 
 Chactauqub County, 
 
 jurors in 285 
 
 Children, 
 
 complaint for abandoning 549 
 
 punishment for abandoning ... ... 583 
 
 [See Contracts, Infants, Minors, and 
 
 Parents and Children.} 
 Child-Stealing, 
 
 complaint for 546 
 
 Churches, 
 
 pews in, real estate 64 
 
 pews in, exempt from sale on exe- 
 cution 491 
 
 Circuit Courts of the United States, 
 records and proceedings of, how 
 
 proved 388 
 
 criminal jurisdiction of 783 
 
 terms of 784 
 
 clerks' ofiices of 784 
 
 [See Evidence.'} 
 Circumstantial Evidence, 
 [See Evidence.} 
 Civil Actions, 
 
 definition of 26 
 
 [See Actions.} 
 
 COHOES, 
 
 recovery of penalties 121 
 
 Coins, 
 
 what, a legal tender 227 
 
 Collateral Undertakings, 
 
 must be in writing 43' 
 
 Collection, 
 
 guaranty of 42, 44 
 
 Collector, 
 
 vacancy in the office of, how filled 855 
 
 Commissioners op Deeds, 
 
 certificate of secretary of state as 
 to authority of, in other states. 394 
 
 Commissioners op Excise, 
 
 [See Excise and Taverns.} 
 
 Commissioners op Highwnys, 
 
 executions against 476 
 
 vacancy in the office of, bow filled 855 
 [See Highways and Roads.} 
 
 Commissioners to take Testimony, 
 may compel attendance of wit- 
 nesses 269 
 
 return of, on commission 269 
 
 fees of 471 
 
 Commissions, 
 
 statute regulating 261 
 
 notice of application for 261 
 
 when granted without notice 262 
 
 service of notice for • 262 
 
 preliminary steps to issuing 263 
 
 oath to. necessity of 264 
 
 form of i 265 
 
 foirm of interrogatories in 265 
 
 justice to direct return of 267 
 
 statute as to execution and return 
 
 of 268 
 
 return upon 269 
 
 Commitments, 
 
 of apprentice refusing to serve. . . 708 
 of apprentice, for misdemeanor . . 709 
 
 of a hawker or pedler V93 
 
 criminal, 
 for contempts, when. . . i 525 
 
;866 
 
 INDEX. 
 
 Commitments, 
 
 when justice to make 583 
 
 to what prison to bo made 602 
 
 warrant of, 
 
 for contempt 529 
 
 in criminal cases, to be carefully 
 
 drawn 602 
 
 to be in writing and signed, &o . . 6(J3 
 prisoner may be detained to pre- 
 pare 603 
 
 to be in the name of people 6U3 
 
 prisoner, how to be described in,. 603 
 
 to state a charge, on oath 604 
 
 must state the crime charged 604 
 
 must point out prison 605 
 
 conclusion of 605 
 
 to whom to be directed 605 
 
 how to be executed .... - 605 
 
 copy of J to be delivered to prisoner 607 
 
 form of 607 
 
 [See Bail, and Warrants.] 
 Common Carriers, 
 
 liability of 59 
 
 evidence by plaintiff, in actions 
 
 against 41 8 
 
 evidence by, in actions against. . . 419 
 measure of damages in actions 
 
 against 448 
 
 Common Law, 
 
 of other states and countries, how 
 
 proved 384 
 
 [See Evidence.} 
 Compelling to Marr^, 
 
 punishment for 590 
 
 Complainants, 
 criminal, 
 
 liability of, for making complaint 538 
 
 who may be 539 
 
 oath to 539 
 
 statement of, should be in writing 540 
 to sign and swear to complaint. .. 555 
 examination of, and witnesses .... 573 
 
 forms of examination 678 
 
 may be recognized to appear 579 
 
 Complaints, 
 civil, 
 
 bad, if claiming over $200 32 
 
 in actions for cutting down trees. . 119 
 in actions for penalties .... 120 to 125 
 supplemental, to continue actions 155 
 
 amendment of 158 
 
 oral or written 210 
 
 against corporations 210 
 
 may contain several counts 211 
 
 contents of 212 
 
 causes of action that may be uni- 
 ted in 212 
 
 causes of action to be separately 
 
 stated in 213 
 
 for violation of statute 213 
 
 need not correspond with summons 213 
 
 demurrer to 213 
 
 answer to 216 
 
 for real property, in supreme court 245 
 criminal, 
 
 to obtain a search warrant 532 
 
 for commission of crimes 537 
 
 who may make 537 , 
 
 Complaints, 
 
 to be on oath 538 
 
 should be in writing 540 
 
 forms of 540 to 555 
 
 to be signed and sworn to 555 
 
 demurrer to 638 
 
 judgment on malicious 650 
 
 special f 
 
 contents of, for violation of excise 
 
 law 764 
 
 against a person for refusing to 
 
 work on a highway 796 
 
 for neglecting to furnish a team 
 
 for that purpose . .- 796 
 
 conviction to be endorsed on 798 
 
 Compounding Offences, 
 
 punishment for 612 
 
 Compromise of Offences, 
 
 when allowed 663 
 
 manner of effecting 663 
 
 when not allowed 664 
 
 forms for ^ ,, 664 
 
 Comptroller, 
 
 copies papers in ofl&ce of, evidence 404 
 
 Computation of Time, 
 
 under statute of limitations 142 
 
 on summons 159 
 
 on short summons 164 
 
 on attachments 167 
 
 on serving summons 173 
 
 "year" 524 
 
 "month" 524 
 
 Concealment, 
 
 effect of, on contracts 88 
 
 Conditions Precedent, 
 
 performance of, how pleaded 211 
 
 Confession, 
 
 not evidence of execution of spe- 
 cialty 331 
 
 [See Evidence.'] 
 
 Confession of Judgment, 
 
 by partners....; 104 
 
 [See Judgments.] 
 
 Congress, 
 
 exempt'nof memb's of, fromarrest 178 
 
 Consent, 
 
 form of guardian's 153 to 204 
 
 by plaintiff, to defendant's escape 179 
 
 Consequential Damages, 
 
 from trespasses on lands 112 
 
 Consideration, 
 
 guaranty must express 42 
 
 seal imports 42, 45 
 
 '*for value received" expresses,42, 45 
 guaranty expressing past, void... 4.3 
 
 promissory note imports 67 
 
 what sufficient for promissory 
 
 notes 67 
 
 of notes, inquirable into 68, 431 
 
 and its failure may be shown 68 
 
 of contracts 77 
 
 effect of illegality of 80 
 
 paid when recoverable by infants. 93 
 
 parol evidence to explain 358 
 
 when want of, must be pleaded... 358 
 
 Conspiracy, 
 
 punishment for, by persons dis- 
 guised 613 
 
INDEX. 
 
 867 
 
 Pag© 
 Constables, 
 civil, 
 
 liable for money collected on exe- 
 cution 62 
 
 actions ajainst, when to be com- 
 menced 139 
 
 summons to be directed to 1 57 
 
 to notify plaintiff of defendant's 
 
 arrest Ifi2 
 
 service of summons by 173 
 
 to make return on summons 1 74 
 
 form of such return by 174 
 
 service of warrant by 174 to 181 
 
 need not show warrant 175 
 
 but should state substance 175 
 
 when, may break open doors 175 
 
 arrest by, after escape ] 78 
 
 liable for escape 179 
 
 may plead recaption 179 
 
 punishable for taking reward from 
 
 prisoner 179 to 1 81 
 
 not to charge prisoner for food. . . 179 
 
 when may make such charge 180 
 
 not to be paid for liquors furnished 181 
 
 not to take chamber rent 181 
 
 conveying prisoner through diEFe- 
 
 rent counties 181 
 
 to make return on warrant 181 
 
 service of attachment by. ..181 to 189 
 
 to make inventory 182, 186 
 
 to serve copies process and inven- 
 tory 182, 186 
 
 liability of, for property attached. 182 
 
 186 
 may take bonds for property at- 
 tached 183 
 
 may administer oath to surety. . . 184 
 
 penalty of bond to 184 
 
 to approve surety in bond 1 85 
 
 form of approval by 185 
 
 how to fix value of property 185 
 
 may take receipt for property .... 186 
 
 to return copy inventory 187 
 
 within what time to execute attach- 
 ment 187 
 
 to make return on attachment .... 187 
 
 liable for false return 187 
 
 return of ''not found" .-. 188 
 
 cannot act by deputy 189 
 
 may serve summons in their own 
 
 favor 189 
 
 maliciously executing process, lia- 
 ble 189 
 
 when protected in serving process. 190 
 
 to deliver copy of process 191 
 
 tomaice and sign return on process 191 
 when to order out power of county 191 
 
 when not to act as attorneys 204 
 
 how long to detain defendants ar- 
 rested 207 
 
 when to take him before another 
 
 justice i 209 
 
 not to buy demands for suit 220 
 
 may serve subpoenas 271 
 
 return of, on subpoena 273 
 
 service of attachment against wit- 
 ness by 273 
 
 venire to be delivered to 283 
 
 I'age 
 Constables, 
 
 oath on objection to. * 283 
 
 when, cannot serve venire 283 
 
 how to exGcate venire 283 
 
 to make list of persons summoned 284 
 
 return of, on venire 284 
 
 oath to, retiring with jury 301 
 
 foes of, in civil action 470 
 
 fees of, in Albany. . .-. 472 
 
 liabilities of sureties of 496 
 
 [See Execiitions.l 
 criminal. 
 
 to ascertain regularity of process. 563 
 
 when protected 563 
 
 arrest by 563 
 
 arresting wrong persons, trespass- 
 ers 564 
 
 may command assistance 564, 569 
 
 service of process by, when accused 
 
 is in jail 565 
 
 may break open doors 565 
 
 their duty when prisoner escapes 565 
 before whom to take prisoner.... 568 
 may carry prisoner through diffe- 
 rent counties 569 
 
 protected, while so doing, from 
 
 civil arrest 569 
 
 may detain prisoner to find justice 570 
 
 to whom to deliver warrant 570 
 
 punishment of, neglecting to exe- 
 cute mittimus 606 
 
 to deliver mittimus to jailor 606 
 
 fees of, for an arrest 607 
 
 fees of, for taking prisoner to jail. 607 
 punishment of, refusing to take 
 
 charge of jury 644 
 
 oath to, on retiring with jury 645 
 
 punishment of, refusing to execute 
 
 warrant of commitment 649 
 
 fees of, in criminal cases 679 
 
 special f 
 
 fees of, under statute relating to 
 
 apprentices 714 
 
 fees of, under bastardy statute. .. 735 
 fees of, in proceeding against beg- 
 gars and vagrants 740 
 
 fees of, in proceedings against dis- 
 orderly persons 745 
 
 fees of, in proceedings against 
 
 fugitives from justice 784 
 
 fees of, under statute relative to 
 
 gaming 786 
 
 fees of, on trials of habitual drunk- 
 ards » - . 791 
 
 fees of, in proceedings against 
 
 hawkers and pedlers 795 
 
 service of summons by, to collect 
 
 highway fines 797 
 
 return by, on such summons 798 
 
 not liable to an action for serving 
 
 summons 799 
 
 to whom to pay fines 799 
 
 to give notice of meeting of jury 
 when encroachment on highway 
 
 is denied 804 
 
 fees of, under highway act 809 
 
 fees of, in proceedings against lu- 
 natics 834 
 
868 
 
 INDEX. 
 
 Pago 
 Constables, 
 
 powers of, under warrant against 
 
 pawnbrokers 841 
 
 fees of, for serving such warrant. 842 
 fees of, for summoning witnesses 
 
 to give deposition 845 
 
 fees of, for arresting persons en- 
 gaged in racing. 850 
 
 removal off 
 
 by throe justices 850 
 
 summons for that purpose 850 
 
 certificate of 850 
 
 fees therefor 850 
 
 Contempts of Cotjrt, 
 
 when justice may commit for 525 
 
 punishment for 526 
 
 warrant of arrest for 527 
 
 record of conviction for 528 
 
 warrant of commitment for 529 
 
 commitments for, in Marine Court, 
 
 in New York 530 
 
 C ♦NTRACTS, 
 
 actions on, cognizable in justices' 
 
 courts ST 
 
 actions on, indivisible 32 
 
 what are 37 
 
 parol 37 
 
 simple, how made 37 
 
 ■what are valid 37? 38 
 
 elements of complete 38 
 
 express 38 
 
 implied 38 
 
 executory 39 
 
 executed 39 
 
 who may make • 39 
 
 of sale 39 
 
 when void by statute of frauds,39 to 50 
 
 of sale, "when complete 63 
 
 relating to lands 63 
 
 of makers and endorsers of notes. 69 
 
 tainted with usury, void 74 
 
 in restraint of trade 78 
 
 in restraint of marriage 78 
 
 founded on illegal consideration.. 80 
 
 made on Sunday 80 
 
 in contemplation of marriage.... 88 
 
 by minors, for their services 93 
 
 by infants, when void or voidable. 93 
 
 by agents of corporations 96 
 
 by corporations 96 
 
 liability of agents upon,. 103 
 
 by agents, when void 103 
 
 of partnership 1 03 
 
 actions upon sealed, when to be 
 
 commenced 138 
 
 and when, upon simple...- - 138 
 
 statute of limitations on joint .... 143 
 
 actions on, in behalf of towns .... 146 
 
 complaint in actions arising on... 212 
 
 set -off, in actions on assigned. ... 233 
 
 recoupment, in actions on 240 
 
 evidence in actions on 416 to 418 
 
 express, how proved 416 
 
 implied, how proved 417 
 
 consideration of simple, must bo 
 
 shown 417 
 
 Conracts, 
 
 several plaintiffs must prove joint, 418 
 [See Damages, Evidence, Fraudu- 
 lent Contracts, Illegal Contracts, 
 and Instruments. '\ 
 
 Conversion, 
 
 liability of agents for 102 
 
 what is a 437 
 
 Conveyances, 
 
 in trust, when void as to creditors, 49 
 records and transcripts of, evi- 
 dence 395 
 
 certificate by county clerk of proof 
 
 of - 395 
 
 of lands without the State 396 
 
 copies of lost, may be recorded... 396 
 acknowledgement and proof of, 
 
 in this State 392 
 
 in any other State 392 to 395 
 
 in Europe 392 
 
 in North and South America 392 
 
 in France 392 
 
 in Russia 392 
 
 in Great Britain and Ireland 392 
 
 in Philadelphia 392 
 
 in Baltimore 392 
 
 in Upper and Lower Canada 392 
 
 by officers and soldiers in Mexico. 393 
 in the territories of the United 
 
 States 393 
 
 commissioners of deeds in other 
 
 states 393, 394 
 
 by married women in other states. 395 
 
 Conviction, 
 
 minute of, of witnesses 277 
 
 certificate of, at special sessions, 646 
 
 647 
 
 Coroners, 
 
 actions against, when to commence 139 
 
 Corporations, 
 
 may sue and be sued in justices' 
 
 courts 35, 36, 95 
 
 what are 95 
 
 peculiarities of 96 
 
 how divided 96 
 
 incidents to 96 
 
 liabilities of, 96 
 
 contracts by 96 
 
 counties are 97 
 
 powers of counties as 97 
 
 liable as trespassers 112 
 
 penalties imposed by by-laws of. . 122 
 
 statute of limitations as to 141 
 
 existence of, when to be proved.. 147 
 
 actions by foreign 147 
 
 may appear by attorney, 151, 202, 203 
 
 summons, how served on 173 
 
 complaints in action against 210 
 
 mistake in name of 216 
 
 admissions by members of 348 . 
 
 certificates of incorporation of, 
 
 evidence 399 
 
 proof of incorporation when 399 
 
 seals of, may be on paper 400 
 
 liable for highway fines 795, 798 
 
 Corporators, 
 
 admissions by 348 
 
 competent as witnesses 363 
 
INDEX. 
 
 869 
 
 Page 
 Costs, 
 
 under mechanics' Uenlaw....l34j 136 
 security for^ by foreign corpora- 
 tions .... 148 
 
 security for, by non-resident plain- 
 tiffs 148 
 
 defendants, when entitled to 148 
 
 guardian of infant defendant, not 
 
 liablo for 202 
 
 when justice is a material witness, 208 
 
 on amendment 218 
 
 on recovery beyond tender 230 
 
 on recovery less than tender. .231, 233 
 
 when set-off is allowed 236, 237 
 
 on plea of title perfected 244 
 
 in supreme court, on plea of title. 245 
 on attachment against witness ..• 278 
 
 of venire 284 
 
 recoverable by endorsers, sureties, 
 
 &e 446 
 
 not to exceed five dollars 465 
 
 when may exceed that amount. .. 465 
 of losing party, not to be inserted 
 
 in judgment 465 
 
 of venire abide event 466 
 
 erroneously given, may be recov- 
 ered 466 
 
 party in interest, liable for 466 
 
 to be paid on attachment 466 
 
 double, when allowed 466 
 
 treble, to ofi&cers ot the militia... 466 
 on recovery of double or treble 
 
 damages 467 
 
 double and treble, belong to de- 
 fendant 467 
 
 what are treble 467 
 
 security for, when to he given 467 
 
 in civil actions 468 to 472 
 
 to he paid on appeal 501 
 
 how to be awarded on appeal 509 
 
 to appellant, on reversal 510 
 
 to respondent, on affirmance 510 
 
 on appeals generally 509 
 
 on trials for disturbance of religious 
 
 meetings 751 
 
 on trials by habitual drunkards. . 790 
 in actions by and against hawkers 
 
 and pedlers 764 
 
 in proceedings upon, a highway en- 
 croachment 809 
 
 COTINTERFEITING, 
 
 complaint for 550 
 
 [See Forgery.] 
 Counties, 
 
 actions to be tried in, where causes 
 
 arise 35 
 
 actions by and against officers of 36, 146 
 
 are corporations 96 
 
 may sue and be sued 97 
 
 may purchase and hold lands 97 
 
 may make contracts 97 
 
 may hold personal property 97 
 
 may control corporate property. . . 97 
 
 actions by and against 97, 147 
 
 powers of, by whom exercised 97 
 
 prisoners may he conveyed through 
 
 different ]81 
 
 power of, when to be ordered out. 191 
 
 Page 
 
 Counties, 
 
 execution against officers of 474 
 
 County Clerks, 
 
 to record certificate of justices' 
 
 drawing 7 
 
 oath of justice, to be deposited 
 
 with 10 
 
 justices' bonds, to be filed with.. 10 
 to give notice, if these are omitted 10 
 to keep mechanics' lien docket. .. 130 
 forms of certificates by, to docu- 
 mentary evidence 389 
 
 certificates by, to proof of deeds. . 395 
 certificates by, to transcripts of 
 
 records 396 
 
 copies of papers and records in 
 
 oftices of, evidence 400 
 
 notice of appeal to be served on.. 499 
 [See Executions, and Lunatics.'] 
 County Courts, 
 
 jurisdiction of, under mechanic's 
 
 lien law :.131 to 134 
 
 when justice's judgment, a judg- 
 ment of 455 to 459 
 
 may order amendment of justice's - 
 
 return 503 
 
 may remit fines in criminal cases. 649 
 [See Appeals.] 
 County Jails, 
 
 prisoners to be committed to 602 
 
 keepers of, to receive prisoners. . . 606 
 keepers of, to deliver copy mitti- 
 mus to prisoner 607 
 
 fee of keeper of, for receiving 
 
 prisoners 607 
 
 punishment for escaping from.... 615 
 
 County Judges, 
 
 nominated justices fqjfeierly 3 
 
 may appoint guardians for infant 
 
 plaintiffs 153 
 
 may appoint guardians for infant 
 
 defendants 202 
 
 to approve undertaking on appeal. 503 
 [See County Courts.'^ 
 
 County Treasurers, 
 
 to sue for fines unpaid 649 
 
 Court, 
 
 money may be paid into 232 
 
 what admitted by so doing 343 
 
 Court of Sessions, 
 
 jurisdiction of 581 
 
 appeal to, in bastardy cases 730 
 
 may bind over putative father .. . 732 
 justices of, how and when chosen. 847 
 their fees 847 
 
 Courts, 
 
 exemption of officers of, from arrest 177 
 persons attending, exempt from 
 
 arrest 1 77 
 
 jurisdiction of criminal ,, 580 
 
 not to he opened on Sunday 645 
 
 to be adjourned over Sunday 645 
 
 to sentence juvenile delinquents 
 
 to House of Refuge 649 
 
 [See Circuit Court of the United 
 Stq^tes, and District Court of the 
 United States.] 
 
870 
 
 INDEX. 
 
 Couhts op Special Sessions, 
 [See Special Sessions.l 
 
 Credit, 
 
 actions for false reeomaiondation 
 
 as to 87 
 
 agents may sell on 96 
 
 Creditors, 
 
 conveyances in trust, void as to.. 52 
 
 of mortgagors of chattels 51 
 
 to notify pawnor to redeem 61 
 
 substitution of, for defendants .... 155 
 delivery to 223 
 
 Crimes, 
 
 jurisdiction of justices over 523 
 
 statute of limitations as to. - .')24 
 
 what, bailable by a justice of the 
 
 supreme court 609 
 
 what, bailable by a county judge. 609 
 ■what, by justices of the peace , , . . 609 
 punishable with death, 
 
 arson in the first degree 584 
 
 dueling 584 
 
 murder 584 
 
 treason 585 
 
 punishable by over Jive years^ im- 
 prisonment, 
 
 abandoning children 85 
 
 accessories before the fact 585 
 
 administering poison 585 
 
 arson in the second degree 586 
 
 arson in the third degree 586 
 
 arson in the fourth degree 587 
 
 assaults with deadly weapons 588 
 
 attempts to commit offences 588 
 
 bribery 588 
 
 burglary in the first degree 689 
 
 burglary in the second degree .... 589 
 
 compeilicg to marry 590 
 
 dueling 591 
 
 falsely personating others. ..,*... 591 
 forgery in the first degree ...,..,, 592 
 
 forgery in the Second degree 583 
 
 incest ^x 596 
 
 Itidnapping 596 
 
 larceny, when 596 
 
 manslaughter in the fivet dnjfree. . 598 
 manslaughter in the second degree 598 
 
 mayhem 599 
 
 perjury and subornation of perjury 599 
 
 poisoning food, springs, kQ. 600 
 
 rape 600 
 
 robbery in tho first d'^gree 600 
 
 robbery in the second degree 600 
 
 second offences 601 
 
 sodomy 602 
 
 punishable by less than Jive years'' 
 tmprisonmentj 
 
 abduction 609 
 
 acseasories after tho fact 610 
 
 assaults, with intent to commit 
 
 felonies 610 
 
 attempts to commit offences 610 
 
 attempts to induce perjury 610 
 
 bigamy 611 
 
 burglary in the third degree 612 
 
 buying stolen property 612 
 
 carnal knowledge of women 612 
 
 compounding offences 612 
 
 Page 
 Crimes, 
 
 conspiracy by persons disguised.. 61Z 
 
 corrupting jurors 613 
 
 death by wrongful act 614 
 
 embezzlement 614 
 
 escaping from county jail 615 
 
 escaping from state prison 615 
 
 false tokens and pretences 615 
 
 forgery in the third and fourth de- 
 grees 615 
 
 grand larceny ... 618 
 
 injuries to railroads 618 
 
 jurors accepting bribes 618 
 
 manslaughter in the third and 
 
 fourth degrees 61 9 
 
 poisoning cattle 620 
 
 receiving property, embezzled . . . 620 
 
 second offences 620 
 
 seduction, under promise of mar- 
 riage 621 
 
 severing produce from the soil., . . 621 
 
 stealing records 622 
 
 sending threatening letters 622 
 
 violating graves, &c 622 
 
 triable by a court of special sessions^ 
 
 assault and battery 629 
 
 cutting down monuments, &c 631 
 
 destroying guide-boards, Ac 631 
 
 petit larceny, charged as a first 
 
 offence 629 
 
 poisoni .g and cruelly beating ani- 
 mals 630 
 
 racing animals 630 
 
 willful trespass, not amounting to 
 
 grand larceny 630 
 
 selling poisons without labels .... 630 
 
 destroying toll-bridges, &c 631 
 
 into xication of conductor 632 
 
 setting up lotteries 632 
 
 running horses - 632 
 
 violations of excise law 632 
 
 illegal voting 632 
 
 making slung shot 632 
 
 disclosure of indictment 632 
 
 injuring mill dam 632 
 
 injuring telegraph 632 
 
 counterfeiting trademark 632 
 
 malicious trespass 632 
 
 injuring canal 632 
 
 defacing, tfco. marks 633 
 
 setting fires in woods, &c 633 
 
 defacing logging marks 633 
 
 running horses 633 
 
 racing near courts 633 
 
 cruelty to animals 633 
 
 cheating at games 633 
 
 gambling 633 
 
 selling liquor in court-house or jail 633 
 removing property to defraud cred- 
 itors 634 
 
 selling liquor to Indians 634 
 
 Criminal Actions, 
 
 definition of 26 
 
 [See Crimes and Special Scssions^'l 
 Criminal Conversation, 
 
 actions for, when to be commenced 138 
 Cross Interrogatories, 
 [See Commissions and Interrogatories.'} 
 
INDEX. 
 
 871 
 
 Page 
 Cumbrous ArticleSj 
 
 delivery of 47, 433 
 
 Curtesy, 
 
 estate by 89 
 
 DAMAGES, 
 
 actions for, cognizable in justices' 
 
 courts 26, 27, 28 
 
 acceptance, not a bar to action for 60 
 
 in case of trespasses on lands Ill 
 
 under mechanics' Hen law ] 32 
 
 recoupment of,after action brought 240 
 
 ■when, may be recouped 241 
 
 recoverable from defaulting witness 275 
 
 must be proved 328 
 
 evidence in actions for 420 
 
 general remarks concerning 439 
 
 special, must be averred 441 
 
 for not returning execution 496 
 
 agai)ist common carriers and factors, 
 
 measure of, for non-delivery 447 
 
 interest, not recoverable as 448 
 
 for selling at less than stated price 449 
 breach of contract, 
 
 where written contract is broken. . 444 
 cases in which they have been 
 
 ' given 444 
 
 profits, when recoverable as 444 
 
 for loss of employment 444 
 
 measure of, when no proof of price 445 
 breach of warranty, 
 
 measure of 445 
 
 of CLuality 445 
 
 of soundness 446 
 
 general, 
 
 what are 439 
 
 need not be averred 439 
 
 excessive verdict for, may be re- 
 duced 440 
 
 principle upon which they are given 441 
 
 in actions for wrongs 444 
 
 liquidated, 
 
 what are 440 
 
 penalty, not esteemed as '. .. 440 
 
 are in full of breach 441 
 
 for non-delivery of property, 
 
 when consideration is paid 447 
 
 when consideration is unpaid 447 
 
 evidence of market value to show. 448 
 [See Highways and Roads ] 
 
 Dates, 
 
 may be rebutted 61 
 
 Days of G-race, 
 
 on promissory notes 67 
 
 how computed. 67 
 
 interest for 74 
 
 Deadly Weapons, 
 
 punishment for assaults with 588 
 
 Death, 
 
 does not affect rights to real prop- 
 erty 137 
 
 when actions do not abate by 154 
 
 evidence of, of subscribing witness 294 
 
 presumption of 317 
 
 caused by wrongful act 614 
 
 [See Crimes. 1 
 
 Debtors, 
 
 joint, in different counties,h,ow sued 158 
 
 Page 
 Debtors, 
 
 delivery by 223 
 
 discharged by tender 225 
 
 [See Defendants.'] 
 Debts, 
 
 agreements to answer foi*, of an- 
 other 40, 41 
 
 assignmetit of, passes chattel mort- 
 gage 55 
 
 wife not liable for her husband's. . 87 
 duo to wife, formerly belonged to 
 
 husband 88 
 
 husband, when liable for wife's. . . 90 
 collectable by personal represent- 
 atives 94 
 
 Deceit, 
 
 in sale of horses 85, 85 
 
 in sale of sheep by agent 100 
 
 Declarations, 
 
 by a;;;ents 100, 335 
 
 of deceased persons 338 
 
 dying, 
 
 inadmissible as evidence 339 
 
 justices may take 530 
 
 how to be taken 530 
 
 Decrees, 
 
 actions on, within what time to be 
 
 commenced 137 
 
 records and exemplifications of, ev- 
 idence 397 
 
 Deeds, 
 
 contract by 37 
 
 of gift, in trust, void 50 
 
 evidence to vary 357 
 
 forms for acknowledgment and 
 
 proof of 689 to 697 
 
 [See Conveyances, Evidence and 
 Instruments."] 
 Defence, 
 
 how pleaded 216 
 
 how received 218 
 
 Defendants, 
 
 residence of, to give jurisdiction. . 35 
 
 actions against non-resident 35 
 
 when actions commenced against. 140 
 when entitled to security for costs 148 
 
 who may be made 1 54 
 
 creditor, how substituted for 154 
 
 when, may disregard summons .. . 357 
 may be sued by fictitious names . . ] 58 
 
 warrant against non-resident ] 60 
 
 plaintiff, to be notified of arrest of 162 
 feummons and attachment against 
 
 non-resident * 163 
 
 attachment against 165 
 
 short attachment against 169 
 
 service of summons on 173 
 
 arrest of, by warrant 174 to 18 L 
 
 arrest of, after escape 178 
 
 rights of, as prisoners ISO 
 
 copies attachment and inventory to 
 
 be served on ; . . . 181, 186 
 
 infant, must appear by guardian. 202 
 guardians of infant, how appointed 
 
 202, 203 
 failing to appear on return of pro- 
 cess -. . 205, 206 
 
 detention of, when arrested ...... 207 
 
872 
 
 INDEX. 
 
 Page 
 Dependants, 
 
 how to procure testimony of justice 208 
 
 when to demur 213 
 
 rights of, in actions on demands 
 
 bought for suit 220 
 
 payment by, in actions on bonds.. 231 
 
 may pay money into court 232 
 
 set-off by 236 to 240 
 
 to give notice of set-off 237 
 
 judgment for, on set-off 236 
 
 set-off by, against executors, &c., 237 
 
 neglecting to set off demand 237 
 
 recoupment by 240 to 243 
 
 may sot up title • 243 
 
 undertaking by, setting up title. . 244 
 
 answer by, in supreme court 245 
 
 adjournment by, on warrant 249 
 
 adjournment on motion of. 252 to 257 
 
 acquittal of one of several 281 
 
 statement of defence by 300 
 
 examination of witnesses by 300 
 
 when must plead want of consider. 
 
 ation 358 
 
 may call plaintiff to prove usury.. 364 
 and to prove that demand was 
 
 bought for suit 365 
 
 judgment for, after trial 453 
 
 double costs, when allowed to .... 460 
 
 treble costs, when allowed to 467 
 
 double and treble costs belong to. 467 
 when to be discharged from impris- 
 onment 494, 495 
 
 evidence by, 
 
 as common carriers 419 
 
 in mitigation of damages 420 
 
 of infancy 421 
 
 ■when infants, to rebut proof of 
 
 necessaries 421 
 
 to avoid plea of statute of limita- 
 tions 422 
 
 in answer to proof of partnership. . 423 
 
 pleading payment 424 
 
 in actions on notes 431 
 
 of a tender , 432 
 
 in actions of trespass 434 
 
 in actions of trespass on the case. 435 
 
 in actions of trover 438 
 
 [See Adjournments.'] 
 Definitions, 
 
 jurisdiction 17 
 
 action 26 
 
 criminal action 26 
 
 civil action 26 
 
 contract 37 
 
 express contract 38 
 
 implied contract 38 
 
 executed contract 38 
 
 executory contract 39 
 
 exchange 39 
 
 contract of sale 39 
 
 Tender 39 
 
 vendee 39 
 
 broker 49 
 
 bailment 57 
 
 bailor 57 
 
 bailee 57 
 
 deposit 58 
 
 mandate 58 
 
 Page 
 
 Definitions, 
 
 pledge 58, 61 
 
 pawn 58 
 
 hiring 58 
 
 promissory note 65 
 
 payee 66 
 
 endorser 66 
 
 endorsement 68 
 
 misrepresentation 82 
 
 concealment 83 
 
 executors 94 
 
 administrators 94 
 
 corporations 95 
 
 general agent 99 
 
 special agent 100 
 
 partnership 103 
 
 mutual accounts 143 
 
 negligent escape , , 178 
 
 voluntary escape 178 
 
 mesne process 178 
 
 chattels personal 182 
 
 recoupment 240 
 
 subpoena duces tecum 271 
 
 trial 279 
 
 challenge to the array 290 
 
 challenge to the polls 291 
 
 of various kinds of evidence 307 
 
 probability 310 
 
 presumption 311 
 
 surplusage 326 
 
 primary evidence 331 
 
 hearsay evidence 333 
 
 general character 380 
 
 sworn copies 392 
 
 special property 436 
 
 conversion 437 
 
 liquidated damages 440 
 
 vindictive damages... 441 
 
 general damages 442 
 
 interlocutory judgment... 450 
 
 final judgment 450 
 
 judgment • 450 
 
 bail 623 
 
 Delivery, 
 
 of cumbrous articles 47 
 
 of goods generally 47 
 
 essential to validity of transfer. . . 49 
 
 common carriers liable until 59 
 
 of pledges 60 
 
 on a contracT) of sale 223 
 
 on a contract to pay a debt 223 
 
 Demand, 
 
 need not be made on factor 102 
 
 of payment of chattel note 224 
 
 Demands, 
 
 not to be bought for suit 220 
 
 passed upon by a jury, extin- 
 guished 222 
 
 and cannot be recovered in another 
 
 suit 222 
 
 what, may be set off 233 to 237 
 
 which might have been set off-... 237 
 
 Demised Premises, 
 
 [See Landlord and Tenant.] 
 
 Demurrer, 
 civilf 
 
 may be oral or in writing.. 209 
 
 when allowable 214 
 
INDEX. 
 
 873 
 
 Page 
 Pemurrer, 
 
 by defendant 213 
 
 by plaintiff 213 
 
 amendment after 214 
 
 form of, to complaint 215 
 
 form of, to answer 215 
 
 criTiiinalj 
 
 when proper 638 
 
 decision on 638 
 
 form of 638 
 
 [See Pleadings^l 
 
 DEPOSIT; 
 
 definition of 58 
 
 DePOSITIONSj 
 
 of witness, before commissioner.. 268 
 
 of aliens, evidence 388 
 
 in perpetuam rei memoriam 400 
 
 to he used in other states, 
 
 when justices to take 845 
 
 how taken 845 
 
 witnesses how compelled to give., 845 
 fees 846 
 
 Deputy, 
 
 justices cannot act by 159 
 
 must show warrant 175 
 
 constables cannot act by 189 
 
 justices may appoint, to serve pro- 
 cess 189 
 
 Deserted Premises, 
 
 [See Landlord and Tenant,"} 
 
 Discontinuance, 
 
 plaintiff failing to appear 205 
 
 justice failing to appear 206 
 
 when justice is a material witness. 208 
 
 refusal to amend pleading 214 
 
 when set- off allowed 233 to 239 
 
 on plea of title 243 
 
 illegal adjournment 257 
 
 Disguised Persons, 
 
 [See Beggars and Vagrants.} 
 
 Disorderly Persons, 
 
 who are 740 
 
 to be arrested 740 
 
 warrant to arrest 741 
 
 to bo bound over for good behavior 741 
 
 when to be committed 742 
 
 record of conviction of 742 
 
 warrant to commit 743 
 
 when such warrant protects of&cer 743 
 gaming, a breach of recognizance 
 
 of 744 
 
 warrant to commit, after recovery 
 
 on recognizance of . . ■ ■ ■ • 744 
 
 may be discharged on giving sure- 
 ties 744 
 
 form for such discharge 745 
 
 fees for services under statute re- 
 lative to 745 
 
 Disqualification, 
 
 of justice 21 to 25 
 
 consanguinity and affinity 280 
 
 [See Jurors,} 
 
 Distress, 
 
 for rent, abolished 810 
 
 District Attorneys, 
 
 when to commence actions for pen- 
 alties 138 
 
 Page 
 District Attorneys, 
 
 to bo notified of arrest of fugitives 
 
 from justice 782 
 
 must receive copy certiorari 666 
 
 District Courts, in New York, 
 
 by whom held 12, 21 
 
 clerk of, by whom appointed 12 
 
 compensation of officers of 12 
 
 jurisdiction of 21, 29 
 
 adjournment of actions in 256 
 
 powers of justices of, as to forcible 
 
 entry and detainer 847 
 
 District Courts of the United States, 
 records and proceedings of, how 
 
 proved .' 388 
 
 criminal jurisdiction of 783 
 
 territorialjurisdiction of, in South- 
 ern district 783 
 
 terms of, in that district 784 
 
 territorialjurisdiction of,in North- 
 ern district 784 
 
 terms of, in that district. 784 
 
 territorial jurisdiction of, in East- 
 ern district • 784 
 
 terms of, in that district 784 
 
 clerks' offices of 784 
 
 Districts, 
 
 judicial, in New York 12 
 
 Disturbance of Religious Meetings, 
 
 complaint for 555 
 
 offender to be brought before 
 
 justice 746 
 
 warrant of arrest for 746 
 
 record of conviction for 747 
 
 conviction of, final 747 
 
 when proceedings against, to be 
 
 instituted 748 
 
 executions against 748 
 
 certificate of conviction of, to be 
 
 filed 749 
 
 form of such certificate 749 
 
 statute concerning 749 
 
 offender may be summarily con- 
 victed 749 
 
 offender to be taken before justice 
 
 issuing warrant 750 
 
 offender, when to be committed... 750 
 
 jury trial may be demanded 750 
 
 jury, how summoned 750 
 
 offender convicted, to pay costs... 761 
 
 costs on trials for 751 
 
 security for costs and penalty,... 751 
 
 warrant of commitment for 751 
 
 fees 755 
 
 Dockets, 
 
 of mechanics' liens ••• 130 
 
 justices to enter pleadings in 210 
 
 verdict of jury to be entered in.. 304 
 transcript of justices', in "adjoin- 
 ing states, evidence 387 
 
 justice to enter judgment in 456 
 
 statute concerning 459 
 
 form of entries in 459 
 
 evidence .... - 462 
 
 transcript of, evidence 462 
 
 justices may swear to 463 
 
 contents of lost, how proved 464 
 
874 
 
 INDEX. 
 
 Documentary Evidence, 
 
 form of certificate to 389 
 
 [See Evidence.] 
 Dogs, 
 
 when may be killed 117 
 
 justices to order dangerous, killed 766 
 
 order to kill dangerous 7o6 
 
 penalty for not killing 757 
 
 persons harboring, deemed owner 757 
 fees 757 
 
 Doors, 
 
 when, may be broken open 175, 
 
 533, 565 
 
 Double Costs, 
 
 [See Costs, and Defendants.] 
 
 Draining Swamps, 
 
 owner of swamps, to apply to 
 
 justice 757 
 
 summons to be issued 757 
 
 its form , . . . . 758 
 
 service of summons 758 
 
 lustice to swear jurors 758 
 
 map to be delivered to jury 759 
 
 jury to examine premises ........ 759 
 
 and note alterations on map 759 
 
 and assess and certify damages.. 759 
 
 form of inquisition by jury 759 
 
 when owner may open ditches. ... 760 
 penalty for obstructing ditches. . . 760 
 second jury may be summoned. . . 760 
 fees 760 
 
 Drawing, 
 
 of justices, in new towns 6 
 
 Drunkards, 
 
 [See Habitual Drunkards.] 
 
 Due Bills, 
 
 place of payment of 228 
 
 rights of parties to 228 
 
 Duelling, 
 
 deemed as murder 584 
 
 punishment for 599 
 
 Dutchess County, 
 
 mechanics' lien law in 128 to 136 
 
 ELECTIONS, 
 
 firfct, of justices 4 
 
 of justices, under constitution of 
 
 1846 4 
 
 certificate of justices' 6 
 
 of justioeSj iu new towns 5 
 
 of two or more justices 8 
 
 of Justices of Marine court, in 
 
 New York 12 
 
 of Justices of District courts, in 
 
 New York 12 
 
 of Justices in Albany 12, 13 
 
 of Justices in Hudson 13 
 
 of J^ustices in Troy 13 
 
 civil process, not to be served on 
 
 day of 190 
 
 voters at, not exempt from crimi- 
 nal arrest 537 
 
 vacancy in ofiice of inspector of, 
 
 how filled 855 
 
 -ectors, 
 
 justices must be. 4 
 
 to designate term of o£Bce of 
 
 justice 8 
 
 Page 
 Ellisburgh, 
 
 has five justices 4 
 
 Elmira, 
 
 special session in 657 
 
 Embezzlement, 
 
 complaint for 551 
 
 what is 614 
 
 punishment for 614 
 
 Encroachments, 
 
 [See Highways and Roads.] 
 Endorsees, 
 
 who are 66 
 
 recovery by 68 
 
 Endorsement, 
 
 of process generally 122 
 
 of process, under old excise law.. 764 
 of process, In actions for obstruct- 
 ing highways 803 
 
 of promissory notes, 
 
 in blank 65 
 
 in full 66 
 
 restrictive 66 
 
 transferring note without 66 
 
 on back or face of note 66 
 
 subscribing witness to 67 
 
 without recourse ■ 67 
 
 contracts by 69 
 
 striking out 428 
 
 Endorsers, 
 
 who are 66 
 
 transfers by 
 
 how exempted from liability 
 
 liable for amount received 68 
 
 their contract 69 
 
 demand and notice to charge.... 69 
 notice to, when and how given... 69 
 
 guarantors not considered as 72 
 
 may demand note on tender 226 
 
 England, 
 
 justices first nominated in 1 
 
 justices in, how appointed 1 
 
 jurisdiction of justice in 2 
 
 law as to chattel mortgages in. . . 53 
 [See Conveyances.] 
 Entries, 
 
 in partnership books 106 
 
 official, when admissible in evi- 
 dence 335 
 
 by persons since deceased ........ 338 
 
 in baukrupts' books, of creditors' 
 
 debfs 346 
 
 refreshing memory of witness, by 
 
 inspection of 373 
 
 [See SJiop-hooks.] 
 Erie County, 
 
 jurors in 285 
 
 Escape, 
 civil, 
 
 actions for, when to be commenced 138 
 
 negligent 17S 
 
 voluntary 178 
 
 arrest after 178, 190 
 
 officer liable for 179 
 
 consent by plaintiff to 179 
 
 criminal, 
 
 after arrest on criminal process. . . 565 
 punishment for aiding prisoners to 585 
 punishment forj from countj^jails. 615 
 
INDEX. 
 
 875 
 
 rage 
 Escape, 
 
 punishment for, from state prison 616 
 
 Estates, 
 
 in lands, how conveyed 63 
 
 by curtesy 89 
 
 Europe, 
 
 proof of conveyances made in ... . 391 
 Evidence, 
 
 certificate of drawing of justices. 8 
 of validity of chattel mortgages 
 
 51, 54 
 
 in actions for goods sold 62 
 
 in actions for non-delivery 63 
 
 parol, to explain dates 67 
 
 possession, of title to notes....... 68 
 
 in actions on promissory notes .... 71 
 
 to prove fraud in contracts 82 
 
 letters testamentary, &c 95 
 
 of partnership 106 
 
 entries in partnership books 1 06 
 
 of possession of highway Ill 
 
 of incorporation, when necessary. 147 
 of iauthority to act as attorney. . . 204 
 knowledge of justice, not...r204, 208 
 parol, of issues in former suit. . . . 222 
 date of assignment, prima facie. . 239 
 
 of service of subpoena 272 
 
 of service of venire 284 
 
 of employment in salt manufacto- 
 ries 286 
 
 of employment in lunatic asylum. 287 
 of membership in fire company in 
 
 Auburn state prison 287 
 
 of service in the militia 288 
 
 exparte affidavits not to be given in 294 
 
 plaintiff, when to introduce 294 
 
 of death or absence of subscribing 
 
 witness 294 
 
 defendant, when to introduce 300 
 
 nature and principles of 307 
 
 competent 307 
 
 satisfactory 307 
 
 things judicially noticed without 
 
 308, 384 
 
 various kinds of - ', 309 
 
 relative value of direct and circum- 
 stantial 323 
 
 admissibility of, a question for the 
 
 court 325 
 
 sufficiency of, a question for the 
 
 jury 325 
 
 objections to, must be specific . . > • 325 , 
 
 must be relevant 325 
 
 if not, inadmissible 326 
 
 none required, of surplusage 326 
 
 of knowledge or intent 326 
 
 relevancy of, must be shown 326 
 
 onwhomburdenof proof rests 327 to 329 
 
 in reply 327 
 
 of substance of issue, will suffice. . 329 
 effect of variance between, and 
 
 pleading 330 to 333 
 
 the best must be produced 333 
 
 instruments of, how divided 359 
 
 to show incompetency of witnesses 360 
 
 of conviction for felony 360 
 
 of market value 448 
 
 Pago 
 
 Evidence, 
 
 effect of judgment as, where de- 
 fendant did not appear 453 
 
 transcript, prima facie, of judg- 
 ment 458 
 
 rules of, applicable to criminal 
 
 cases 643 
 
 certificate of conviction at special 
 
 sessions 647 
 
 admissions, 
 
 admissible against party 343 
 
 by whom they may be made 343 to 349 
 
 by one of several parties 344 
 
 by one, where interest is joint.,., 344 
 
 by one partner 344 
 
 by one tenant in common 344 
 
 by one executor or administrator . 344 
 when party acted in different ca- 
 pacity 345 
 
 by parties in interest 345 
 
 of a cestui que trust ■ 345 
 
 sheriff bound by deputy's 346 
 
 of strangers to actions 346 
 
 by third persons who have been 
 
 referred to 346 to 349 
 
 by one party, if the other will 
 
 swear 346 
 
 when husband bound by wife's .... 348 
 
 of principal, against surety 348 
 
 client bound by attorney's 343 
 
 of vendors of personal property. . . 348 
 
 of corporators 348 
 
 any one may prove 349 
 
 time and circumstances of 349 
 
 direct and indirect 349 
 
 implied, from acts 349 
 
 examples of such 349 
 
 the whole, must be given in evi- 
 dence 350 
 
 conclusiveness of 351 
 
 by paying money into court ...... 351 
 
 by tenant's paying rent 351 
 
 not acted upon, not conclusive .... 351 
 by receipt, may be explained 352 
 
 documentary, generally, 
 
 depositions of aliens 388 
 
 letters of attorney 388 
 
 form of certificates to 389 
 
 canal maps and transcripts 389 
 
 transcripts of canal contractors' 
 
 bonds 390 
 
 copies chattel mortgages 390 
 
 proceedings of common council of 
 
 New York 390 
 
 instruments duly proved and ac- 
 knowledged 391 
 
 transcripts of records of convey. 
 
 ances 396 
 
 conveyances of lands in other states 396 
 copies records of deeds in office of 
 
 secretary of state 397 
 
 records and exemplifications of 
 
 judgment records and decrees . - . 397 
 certificates of incorporation of cor- 
 porations 398 
 
 of incorporation 399 
 
 of corporations 400 
 
876 
 
 INDEX. 
 
 Evidence, 
 
 copies of papers and records in 
 
 county clerks' offices 400 
 
 depositions inperpetuamrei memo- 
 
 riam 400 
 
 insolvent's discharge 401 
 
 certificates as to services of firemen 400 
 
 legislative papers 401 
 
 papers and field-notes of land com- 
 panies 401 
 
 certificates of loan commissioners. 451 
 
 certificates of lost papers 403 
 
 marriage certificates 403 
 
 notary's certificates 403 
 
 copies papers deposited in the of- 
 fices of the state government. . . 404 
 transfer books of plank and turn- 
 pike road companies 405 
 
 printers' affidavits of publication. 405 
 certificates of redemption of real 
 
 estate 406 
 
 certified copies of laws 406 
 
 certificates of unpaid taxes 407 
 
 papers in offices of town clerks. . . 407 
 record of appointment of trustees 
 
 of absconding debtor 407 
 
 certificates of incorporation of vil- 
 lages 407 
 
 wills 407 
 
 leases on unpaid taxes, in villages 407 
 written instruments proved or ac- 
 knowledged 408 
 
 excluded from public policy, 
 
 communications of attorney and 
 
 counsel 352 
 
 wife against husband 352 
 
 communications to religious ad- 
 visers .... 353 
 
 communications to physicians and 
 
 surgeons 353 
 
 hearsay, 
 
 definition of 333 
 
 meaning of rule, "^hearsay, not 
 
 evidence " 334 
 
 when information from third per- 
 sons is not 335 
 
 declarations, being part of res 
 
 f^estaef not 336 
 
 of&cial entries, when not 336 
 
 as to pedigree 338 
 
 exceptions of rule excluding 338 to 342 
 matters of public or general interest 338 
 
 ancient documents 33S 
 
 declarations of deceased persons.. 338 
 
 entries by deceased persons 339 
 
 dying declarations 339 
 
 testimony of deceased witnesses.. 340 
 parol, to vary written instruments, 
 
 general rule excludes 355 
 
 effect of this rule 355 
 
 to whom the rule applies 355 
 
 when instrument is in foreign lan- 
 guage 356 
 
 when instrument is illegible 356 
 
 when instrument is incomplete .... 356 
 admissible, to show fraud or ille- 
 gality 357 
 
 Evidence, 
 
 admissible, to show variance of 
 
 simple contracts 357 
 
 admissible, to explain consideration 
 
 of written contracts 358 
 
 of usage 359 
 
 particular actions, 
 
 agency 416 
 
 assumpsit 416 
 
 common carriers 418 
 
 damages 420 
 
 infancy , 421 
 
 limitations 422 
 
 partnership 423 
 
 payment 424 
 
 promissory notes 425 
 
 tender 432 
 
 trespass 433 
 
 trespass on the case 435 
 
 trover 436 
 
 presumptive, 
 
 divisions of • 311 
 
 when conclusive 312 
 
 examples of 312 to 323 
 
 of death 314 
 
 of inability to commit rape 317 
 
 when disputable 317 
 
 of innocence 318, 320 
 
 of malice 318 
 
 possession, of ownership 319 
 
 arising from possession 319 
 
 j udgment on attachment 236, 453 
 
 entries in justice's docket 464 
 
 private writings, 
 
 production of 408 
 
 proof of loss of 408 
 
 secondary evidence of 409 
 
 compulsory inspection of 409 
 
 notice to produce 409 
 
 mode of proving 411 
 
 admission of genuineness of 411 
 
 proof of, when not attested 411 
 
 proof of, by subscribing witness. . . 411 
 proof of handwriting of party to. . 412 
 
 shop-books 413 
 
 proceedings before justices, 
 
 justice's docket, before himself... 461 
 
 transcript of such docket 462 
 
 such docket and transcript conclu- 
 sive 462 
 
 and cannot be contradicted by parol 462 
 
 after justice's death 463 
 
 when docket is lost 465 
 
 public documents, 
 
 written laws of other states and 
 
 governments 383 
 
 common law of other states and 
 
 governments 383 
 
 laws of this s tato 384 
 
 Revised Statutes 384, 406 
 
 Constitution U. S 384 
 
 acts of Congress 384 
 
 journals of the legislature 384 
 
 records and judicial writings, 
 
 how proved 385 
 
 seals to exemplified copies, judi- 
 cially noticed , . 385 
 
 how proved, under act of Congress 385 
 
INDEX. 
 
 877 
 
 Page 
 Evidence, 
 
 by sworn copies 385 
 
 affidavits taken in other states and . 
 
 countries 385 
 
 of foreign courts 385 
 
 copies of, iiof foreign courts 386 
 
 of ^stices' courts in adjoining 
 
 states 386 
 
 of the courts of the United States. 386 
 in the departments of the federal 
 
 government 388 
 
 statute of frauds, 
 
 . contracts relating to lands 353 
 
 leases for more than a year ...... 353 
 
 contracts not to be performed 
 
 within a year 354 
 
 promises to answer for another s 
 
 debt 354 
 
 contracts in consideration of mar- 
 riage 354 
 
 contracts of sale, over $50 354 
 
 what written, must contain 354 
 
 the hest must he produced, 
 
 primary- and secondary 330 
 
 of execution of instruments 331 
 
 secondary, of instruments 331 
 
 confession is not, of execution of 
 
 specialty 331 
 
 instrument must be produced 332 
 
 written agreements, of themselves 332 
 
 letters must be produced 332 
 
 of authority of public officers 333 
 
 [See Burden of Proof, Convey- 
 ances and Witnesses.'\ 
 Excise and Taverns, 
 under the former laic, 
 
 board of commissioners, how formed 761 
 board of excise, when to meet. . . . 761 
 
 act of majority, valid 761 
 
 minutes of meeting, to be kept and 
 
 filed 762 
 
 powers of board 762 
 
 what sum to be charged for license 762 
 
 might grant tavern licenses 762 
 
 not to charge therefor 762 
 
 board to sign licenses 762 
 
 duration of licenses 762 
 
 board must assemble to grant 
 
 licenses 762 
 
 board had a discretionary power. . 762 
 bond to be given for license to drink 
 
 on premises 763 
 
 penalty and condition of such bond 763 
 
 contents of grocer's license 763 
 
 grocer to give bond 763 
 
 condition of such bond 763 
 
 his bond to be filed 763 
 
 penalties, how recovered 764 
 
 who to prosecute bonds 764 
 
 process in actions for penalties, to 
 
 be endorsed 764 
 
 form of such endorsement 764 
 
 complaint for penalty • • • • 764 
 
 evidence, in actions for penalties. 764 
 rule as to bringing actions for 
 
 penalties v 765 
 
 provisions of the Revised Statutes 
 
 repealed 765 
 
 Page 
 Excise and Taverns, 
 under the statutes now in force, 
 board of commissioners how con- 
 stituted 765 
 
 when to meet 766 
 
 to keep minutes 766 
 
 duration of license 767 
 
 compensation of commissioners. . . 767 
 
 licenses to whom granted 768 
 
 bond 768 
 
 duty of inn-keepers 769 
 
 no credit to be given 769 
 
 selling to apprentices, Indians, &c 770 ^ 
 proceedings for violation of the law 770 ^ 
 duties of constables, mugistratesj&c 770 
 
 habitual drunkards 772 
 
 Sunday and election day 773 
 
 penalties, how recovered 773 "* 
 
 bond to be filed 773 
 
 proceedings on breach of bond .... 774 
 conviction to be reported to court 
 
 of sessions 774 -^ 
 
 revocation of license 774 
 
 damages recoverable, on unlawful 
 
 sales 774 - 
 
 adulteration of liquors 775 
 
 any person may prosecute, when,. 775 - 
 common carriers not to employ in- 
 temperate drinkers 775 
 
 liberties of the jail 775 
 
 pledges, sales and assignments for 
 
 liquors, void \, 776 
 
 witnesses in actions to recover 
 property pawned for liquors .... 776 
 
 petition of freeholders 776 
 
 proof of signatures to 777 
 
 affidavit on application to sell .... 777 
 
 bond for selling 778 
 
 acknowl edgment of bond 778 
 
 iustiflcation of sureties 778 
 
 approval of commissioners 779 
 
 bond of inn-keeper 779 
 
 book of minutes 779 
 
 Executed Contracts, 
 
 [See Contracts.'] 
 Executions, 
 
 in actions in name of people 121 
 
 growing wheat may be sold on.. .- 128 
 
 under mechanics' lien law 132 
 
 to be filled up 159 
 
 need not be sealed 159 
 
 to be signed by juetice 159 
 
 to be in name of people 159 
 
 to be in English 159 
 
 when to issue against body 160 
 
 on judgment on set-off 236 
 
 on such judgment, against execu- 
 tors 237 
 
 to enforce adjournment bonds .... 254 
 
 against defaulting witness 278 
 
 justice cannot issue, after trans- 
 cript filed in county clerk's office 459 
 first levy, entitled to preference.. 487 
 property bound for delivery of . . . . 487 
 imprisonment wider, 
 
 when 494 
 
 when defendant to be discharged 
 from 495 
 
878 
 
 INDEX. 
 
 Executions, 
 
 affidavit to procure discharge from 495 
 judgment not released by discharge 
 
 from. 495 
 
 issuing of I 
 
 when to be issued 473 
 
 when to be made returnable 473 
 
 to issue against body 474 
 
 to direct collection of interest .... 474 
 
 formal requisites of 474 
 
 cannot be amended after it has 
 
 been executed. 475 
 
 '. when to issue against town and 
 
 '. county officers 475 
 
 endorsement of, when all the de- 
 fendants did not appear 475 
 
 when county is divided 476 
 
 in actions for violation of statute 
 
 as to fisheries. . ■ 477 
 
 after return of one unsatisfied . . . 477 
 
 after judgment is paid 477 
 
 levy, 
 
 time of receiving must be endorsed 479 
 
 what is a levy 479 
 
 must be actual 480 
 
 breaking open doors to make 480 
 
 time of, to be endorsed 481 
 
 must be during life-time of execu- 
 tion 481 
 
 after expiration of constable's 
 
 office 481 
 
 does not extinguish judgment . , . . 481 
 under one, enures to junior execu- 
 tion 483 
 
 remains good as to debtor, though 
 dormant as to junior executions 483 
 
 officer liable for wanton levy 483 
 
 officer making, acquires special 
 
 property 484 
 
 on gold and silver coin, as money. 485 
 
 bank bills may be taken on 485 
 
 promissory notes cannot be taken 
 
 on 485 
 
 after forfeiture under a chattel 
 
 mortgage 485 
 
 when all the defendants did not 
 
 appear 487 
 
 in actions commenced by attach- 
 ment 487 
 
 title of purchaser before, pro- 
 tected 487 
 
 trespass, when made on property 
 
 of stranger 487 
 
 title to property taken on, how 
 
 determined 487 
 
 property exempt ftotn, 
 
 by Revised Statutes 491 
 
 decisions under Revised Statutes 
 
 491, 492 
 
 by act of 1842 492 
 
 decisions under act of 1842... 492, 494 
 exemption, a personal privilege.. 494 
 0% judgments docketed in county 
 court i 
 
 justices cannot issue. ... * 459 
 
 to be issued by county clerk to 
 
 sheriff 478 
 
 proyifiions of statute regulating,. 478 
 
 Executions, 
 renewing, 
 
 when 477 
 
 duration of renewal » . . . . 477 
 
 effect of, when execution satisfied 477 
 
 when, after levy 477 
 
 after expiration of justice's office. 478 
 return of, 
 
 liability of officer neglecting 496 
 
 sale, 
 
 notice of, to be given 484 
 
 notice for, how long 484 
 
 contents of notice of 484 
 
 what may be sold on 484 
 
 when property is not removed.... 486 
 
 after indemnity tendered 487 
 
 bond to indemnify officer making. 488 
 
 property must be present at 488 
 
 and be sold to highest bidder. .... 488 
 when bid at, may be retracted. . . 489 
 to be postponed for want of bid- 
 ders 489 
 
 adjournment of, discretionary .... 489 
 memorandum necessary, when over 
 
 $50 490 
 
 form of such memorandum 490 
 
 officer cannot purchase at 490 
 
 . special, 
 
 disturbance of religious meetings. 748 
 
 observance of Sunday 748 
 
 profane cursing and swearing.... 748 
 in favor of and against habitual 
 
 drunkenness 790 
 
 stay of, on appeal, 
 
 security to be given for 502 
 
 form of such security 502 
 
 security to be approved 503 
 
 recognizance, in criminal cases. . . 671 
 
 Executors, 
 
 cannot be sued in justices' courts 
 
 28, 36 
 
 are personal representatives 94 
 
 to collect debts due testator 94 
 
 actions by 94 
 
 letters to, evidence 95 
 
 statute of limitations as to 141 
 
 may sue in justices' courts 145 
 
 tender to 230 
 
 set-off in actions by and against. 238 
 
 admissions by one of several 344 
 
 may bind out child as apprentice. 700 
 may assign indentures of ap- 
 prenticeship 404 
 
 Executory Contracts, 
 
 [See Contracts.^ 
 
 Exemption, 
 
 from arrest 175 to 178 
 
 from serving on juries 286 to 289 
 
 [See ExecuUon.'\ 
 
 Express Contracts, 
 
 [See Contract8.'\ 
 
 FACTOR, 
 
 demand need not be made upon. . 102 
 measure of damages in actions 
 
 against • 449 
 
 [See Agents*'} 
 
INDEX. 
 
 879 
 
 Pago 
 False Imprisonment, 
 
 justices ca.nnot try civil actions 
 
 for 27 
 
 actions for, abate by deatb ^5 
 
 actions for, when to be com- 
 menced 139 
 
 Falsely Personating Others, 
 
 punishment for 591 
 
 False Pretences and Tokens, 
 
 complaints for obtaining property 
 
 by 550 
 
 punishment for 615 
 
 Federal Courts, 
 
 [See Circuit Courts of the United 
 States, and District Courts of 
 the United States.] 
 Fees, 
 
 civil, 
 
 for serving a subpoena 471 
 
 may be demanded in advance 472 
 
 taking illegal, a misdemeanor,... 472 
 
 civil actions generally, 
 
 of commissioners 471 
 
 of constables 470 
 
 of jurors 471 
 
 of justices 459, 4B8, 501, 607 
 
 of witnesses 272, 470 
 
 criminal, 
 
 by whom paid 677 
 
 accounts for, when to be audited. 677 
 af&davit to accompany account for 677 
 
 criminal proceedings generally, 
 
 of constables 607, 679 
 
 of justices 678 
 
 of sheriffs 607 
 
 special sessions, 
 
 of justices 665, 677 
 
 special, 
 
 may be demanded in advance.... 683 
 
 acknowledgments, 
 of justices 697 
 
 affidavits and oaths, 
 
 of justices 699 
 
 apprentices, 
 
 of justices 714 
 
 of constables 714 
 
 arbitrators, 
 
 of justices 844 
 
 bastards, 
 
 of constables 735 
 
 of justices 735 
 
 of witnesses 736 
 
 beggars and vagrants, 
 
 of constables 740 
 
 of justices 740 
 
 of witnesses 740 
 
 depositions to be used in other states, 
 
 of constables 846 
 
 of justices 846 
 
 of witnesses 846 
 
 disorderly persons, 
 
 o( constables 745 
 
 of justices 745 
 
 of witnesses 745 
 
 disturbance of religious meetings, 
 
 of constables 765 
 
 of justices 756 
 
 Page 
 Fees, 
 
 dogs, 
 of justices 757 
 
 draining swamps, 
 
 of constables 760 
 
 of jurors 760 
 
 of justices • 760 
 
 excise and taverns, 
 
 of board of commissioners 767 
 
 firemen, 
 
 of justices 846 
 
 firing of woods, 
 
 of justices 847 
 
 forcible entry and detainer, 
 
 of justices 847 
 
 fugitives from justice, 
 
 of constables 784 
 
 of justices 784 
 
 gaming and lottery tickets, 
 
 of constables 786 
 
 of justices 786 
 
 habitual drunkards, 
 
 of constables 791 
 
 of jurors 791 
 
 of justices 791 
 
 of witnesses 792 
 
 hawkers and pedlars, 
 
 of constables 795 
 
 of justices 795 
 
 highways, 
 
 of constables 809 
 
 of jurors 810 
 
 of justices 809 
 
 of town clerks 810 
 
 justices of sessions, 
 
 generally 847 
 
 in the county of Orange 848 
 
 landlord and tenant, 
 
 of justices 831 
 
 limited partnerships, 
 
 of justices 843 
 
 lunatics, 
 
 of constables 834 
 
 of justices 834 
 
 of witnesses 834 
 
 marriages, 
 
 of justices 838 
 
 observance of Sunday, 
 
 of constables ^ 765 
 
 of justices 765 
 
 parents absconding, 
 
 of justices 841 
 
 pawn-brokers, 
 
 of constables.-. 842 
 
 of justices 842 
 
 profane cursing and swearing, 
 
 of constables 765 
 
 of justices 765 
 
 racing, 
 
 of constables 850 
 
 of justices 850 
 
 removal of constables, 
 
 of justices 850 
 
 town auditors, 
 
 of justices 853 
 
 town meetings, 
 of justices • • • 853 
 
880 
 
 INDEX. 
 
 Pago 
 Feks, 
 
 unclaimed haggage, 
 
 of justices '. 844 
 
 I'elonies, 
 
 conviction for, disqualifies as a 
 
 witness 360 
 
 evidence of conviction for 361 
 
 punishment for assaults with intent 
 
 to commit 610 
 
 [See Crimes and Penalties.] 
 Females, 
 
 arrest of 177 
 
 not exempt from criminal arrest.. 537 
 [See Married IVomen^] 
 Fences, 
 
 defects in, defence in trespass 111, 119 
 
 purpose of 119 
 
 cannot be taken on execution 
 
 against tenant 485 
 
 removal of, encroaching on high- 
 way 804 
 
 Fines, 
 
 justices punishable by 10 
 
 for nef^leeting to fill up process. . . 159 
 for suing out process- against am- 
 bassadors 177 
 
 for serving Jews and Seventh Day 
 
 Baptists on Saturday 190 
 
 for refusing to assist in the execu- 
 tion of process , 191 
 
 for non-attendance of witnesses.. 275 
 
 for contempt of court 525 
 
 [See Special Sessions, and High- 
 ways and Roads.] 
 Firemen, 
 
 exemption of, from jury duty .... 287 
 
 evidence of service of 400 
 
 in towns, how appointed 846 
 
 vacancies among, how filled 846 
 
 Firing op Woods, 
 
 who may be ordered to extinguish 
 
 fire in woods 846 
 
 who may make such order 846 
 
 penalty for refusing to obey such 
 
 order 846 
 
 disposition of penalty, when col- 
 lected 847" 
 
 Fixtures, 
 
 general rule, as to 125 
 
 classification of, as to tenant 126 
 
 what are 126, 127 
 
 what are not 126 to 128 
 
 Forcible Entry and Detainer, 
 
 powers of justices, under statute 
 
 relative to 847 
 
 Foreign Corporations, 
 
 actions by 147 
 
 to give security for costs 148 
 
 Forfeitures, 
 
 husband liable for wife's 90 
 
 actions for 119 
 
 recovered, where to be paid 121 
 
 venue in actions to recover 122 
 
 given to persons who will sue.... 122 
 actions for, when commenced.,.. 122 
 
 compromise of actions for 122 
 
 process in actions for 122 
 
 pleadings in aotions for 123 
 
 Pago 
 Forfeitures, 
 
 double or treble value, how as- 
 sessed , 124 
 
 actions for, when to be commenced 138 
 
 jurors in actions for 286 
 
 Forgery, 
 
 complaint for , 549 
 
 in the first degree 592 
 
 in the second degree 593 
 
 punishment of, in the first and 
 
 second degrees 595 
 
 in the third and fourth degrees... 615 
 punishment of, in the third and 
 
 fourth degrees 617 
 
 Forms,, 
 
 certificate of the election of a Jus- 
 tice of the Peace 5 
 
 supervisor's notice of drawing . , , . 6 
 
 certificate of the drawing 7 
 
 oath of office 9 
 
 civil, 
 
 consent to .be guardian for infant 
 
 plaintiff 153 
 
 description of particular character 
 
 of plaintiff 157 
 
 affidavit for a long attachment 
 
 under the Revised Statutes 170 
 
 affidavit for a long attachment 
 
 under the non-imprisonment act 171 
 affidavit for short attachment 
 
 against a non-resident 171 
 
 bond on all attachments, long and 
 
 short 172 
 
 approval of Justice on the bond . . 172 
 
 returns on su mmons 174 
 
 return on warrant 181 
 
 summons in actions for claims and 
 delivery of personal property. . . 197 
 
 affidavit on 198 
 
 notice to constable 198 
 
 undertaking 1 88 
 
 notification of trial 199 
 
 approval on 199 
 
 return of constable 199 
 
 return of constable under § 12.... 200 
 notice of exception to sureties .... 200 
 undertaking for return of property 200 
 affidavit of claim by third person. 201 
 undertaking to constable by third 
 
 person 201 
 
 affidavit of sureties 201 
 
 entry in justice's docket 201 
 
 consent to be guardian for infant 
 
 defendant 204 
 
 demurrer to complaint 216 
 
 demurrer to answer 215 
 
 offer for judgment 216 
 
 acceptance of offer . .^ 216 
 
 answer, setting up plea of title. . . 243 
 
 undertaking, on plea ef title 244 
 
 bond for defendant on adjournment 
 where he can be imprisoned on 
 
 execution 253 
 
 bond for defendant on adjournment 
 where he cannot be imprisoned 
 
 on execution 255 
 
 affidavit of service of notice 263 
 
 commission 265 
 
INDEX. 
 
 881 
 
 Page 
 Forms, 
 
 interrogatoriesj and crosa-inter- 
 
 rogatoriea 266 
 
 return to be endort;ed on commis- 
 sion 269 
 
 subpoena , . . . 270 
 
 minute of conviction of defaulting 
 
 witness 277 
 
 execution against him, for fine and 
 
 costs 278 
 
 oath of witness, upon the Gospels. 295 
 
 the same not on the Gospels 295 
 
 affirmation of witness 296 
 
 warrant of commitment against 
 witness who refuses to testify. . . 298 
 
 confession of judgment 452 
 
 affidavit where the confession is for 
 a sum exceeding fifty dollars .. . 452 
 
 entry in justice's docket 460 
 
 renewal of execution 477 
 
 bond to indemnify constable 488 
 
 memorandum of sale of goods or 
 
 chattels 490 
 
 notice of appeal, in a civil actson. 501 
 
 undertaking 502 
 
 justice's return 503 
 
 criminal, 
 
 warrant of arrest for contempt of 
 
 court 527 
 
 record of conviction-therefor 528 
 
 warrant of commitment therefor. . 529 
 complaint to obtain a search war- 
 rant 5.32 
 
 search warrant 533 
 
 oath of complainant, or of witness 
 
 on complaint -. . . . 539 
 
 complaint for assault and battery. 540 
 complaint for grand or petit larceny 540 
 
 complaint for murder 541 
 
 complaint for murder by poisoning 541 
 complaint for murder by stabbing. 541 
 complaint for murder by shooting. 541 
 complaint for murder by cutting 
 
 throat 542 
 
 complaint against an accessory 
 
 after the fact 542 
 
 complaint for arson in the first de- 
 gree , 542 
 
 complaint for arson in the second 
 
 degree 542 
 
 complaint for arson in the third 
 
 degree 543 
 
 complaint for setting fire to a crop 
 
 of grain growing 543 
 
 complaint for manslaughter, in 
 
 killing another with an axe . . . . 543 
 complaint for manslaughter, in 
 killing an unborn child, by kick- 
 ing its mother 543 
 
 complaint for manslaughter, in 
 killing an unborn child, by ad- 
 ministering drugs, &c., to its 
 
 mother 544 
 
 complaint for rape 544 
 
 complaint for rape on female under 
 
 ten years of age 544 
 
 complaint for assault, with intent 
 to commit a rape 544 
 
 56 
 
 Forms, 
 
 complaint for forcible abduction of 
 a woman, with intent to compel 
 her to marry, or prostitute her- 
 self ..1 545 
 
 complaint for taking a female un- 
 der fourteen years of age from 
 
 her parent or guardian 545 
 
 complaint for mayhem or maiming 545 
 
 complaint for child-stealing 546 
 
 complaint for abandoning child... 546 
 complaint for shooting at, or at- 
 tempting to shoot at, with intent 
 
 to kill, rob, or maim 546 
 
 complaint for assault with deadly ^ 
 
 weapon, with, intent to kill 546 i 
 
 complaint for poisoning food 547 
 
 complaint for poisoning well 547 
 
 complaint for assault, wish intent 
 to rob, or commit burglary. . , . 547 
 
 complaint for burglary 548 
 
 complaint for felony and burglary 
 
 in shop 548 
 
 complaint for burglary in entering 
 
 store 548 
 
 complaint for constructive burglary 549 
 
 complaint for forgery 549 
 
 complaint for passing, or offering 
 
 to pass, counterfeit bank notes. 550 
 complaint for altering or counter- 
 feiting bank notes 550 
 
 complaint for obtaining property 
 by a false token, or by falsely 
 
 personating another 550 
 
 complaint for obtaining money, or 
 property, by false pretences .... 551 
 
 complaint for robbery 551 
 
 complaint for embezzlement 551 
 
 complaint for receiving stolen goods 552 
 
 complaint for perjury 552 
 
 complaint for bigamy 552 
 
 complaint for marrying the wife of 
 
 another 553 
 
 complaint for malicious mischief. . 553 
 complaint for malicious trespass, 
 
 or for girdling trees 553 
 
 complaint for procuring abortion.. 553 
 complaint for making an affray . , . 554 
 complaint for cruelty to animals 554 
 
 complaint for a rout or riot 554 
 
 complaint for selling unwholesome 
 
 food 554 
 
 complaint for disturbing a religious 
 
 meeting 555 
 
 general form of warrant in a crim- 
 inal case 561 
 
 warrant for assault and battery. . . 562 
 warrant for grand or petit larceny 562 
 form of backing or endorsing a 
 
 warrant 563 
 
 warrant of commitment for further 
 
 examination 572 
 
 prisoner's examination 577 
 
 examination of the complainant, 
 
 and of witnesses for both parties 578 
 warrant of commitment of a wit- 
 ness who refuses to enter into a 
 reQogniKance ***...* 580 
 
882 
 
 INDEX. 
 
 Forms, 
 
 recognizance by a witness to give 
 
 evidence 582 
 
 recognizance by a witness, with 
 
 sureties 582 
 
 recogniza'nce by sureties for a wit- 
 ness who is an infant or a mar- 
 ried woman 582 
 
 warrant of commitmont 607 
 
 recognizance, on giving bail 627 
 
 warrant to liberate a prisoner, on 
 
 giving bail 628 
 
 warrant of commitment of prisoner 
 to await trial by court of special 
 
 sessions 636 
 
 order to jailor to bring up prisoner 
 
 for trial 636 
 
 plea to tlie jurisdiction 637 
 
 demurrer to the complaint 614 
 
 plea in abatement 638 
 
 special plea in bar 639 
 
 venire 640 
 
 subpcena 643 
 
 oath to witness 643 
 
 constable's oath, on retiring with 
 
 jury 645 
 
 minutes of proceedings on trial . . . 646 
 certificate of conviction at special 
 
 sessions 647 
 
 warrant of commitment, on convic- 
 tion at special sessions 648 
 
 acknowledgment of satisfaction, on 
 
 the compromise of an offence.. . 664 
 order superseding the commitment 
 
 of a prisoner 664 
 
 order discharging the recogni- 
 zances of the prisoner and the 
 
 witnesses 664 
 
 affidavit for certiorari on appeal.. 668 
 
 endorsement on 670 
 
 writ of certiorari to remove con- 
 viction 670 
 
 endorsement on the writ 670 
 
 recognizance on appeal to county 
 
 sessions 671 
 
 complaint to obtain surety of the 
 
 peace 673 
 
 peace warrant 673 
 
 recognizance to keep the peace. . . 674 
 commitment for not finding sure- 
 ties 675 
 
 warrant to discharge prisoner on 
 
 finding sureties 676 
 
 affidavit to accompany account for 
 
 fees in criminal cases 677 
 
 Special, acknowledgments, 
 
 oertificate of acknowledgment of a 
 conveyance by a party known to 
 
 the officer 689 
 
 by a party, where his identity is 
 
 proved to the officer 690 
 
 by husband and wife, both known 
 
 to the officer 690 
 
 by husband and wife, both proved 
 
 to the officer 690 
 
 by husband and wife — husband 
 known, and wife proved, to the 
 officer f - 691 
 
 Page 
 
 FORSIS, 
 
 by two husbands and their wives, 
 all known to the officer 691 
 
 by wife, in separate certificate . . . 691 
 
 by two or more parties 692 
 
 by one of several parties 692 
 
 by an attorney 692 
 
 by an executor, or trustee 692 
 
 certificate of proof by subscribing 
 witness known to the officer .... 692 
 
 by subscribing witness, where his 
 identity is proved to the officer. 693 
 
 by subscribing witness — grantors 
 residing in another state 693 
 
 the same, by subscribing witness 
 proved to the officer 693 
 
 by subscribing witness as to the 
 husband, and acknowledgment 
 by the wife, both being known 
 to the officer 694 
 
 by subscribing witness as to the 
 husband, and acknowledgment 
 by the wife, both proved to the 
 officer 694 
 
 by subscribing witness to deed 
 executed by an attorney 694 
 
 proof of deed, by a religious corpo- 
 ration 695 
 
 satisfaction of mortgage, and ac- 
 knowledgment, by individual 
 known to the officer 695 
 
 certificate of satisfaction of a mort- 
 gage, to be written thereon .... 696 
 
 satisfaction of a mortgage, by 
 an executor, administrator or 
 trustee 696 
 
 satisfactionof a judgment in a jus- 
 tice's court, where a transcript is 
 filed in the county clerk- s office, 696 
 
 satisfaction of a judgment in a 
 court of record 696 
 
 oath to be adminif^tered to a sub- 
 scribing witness 697 
 
 oath to a witness, proving the iden. 
 tity of the parties, or of the sub- 
 scribing witness, to a conveyance 697 
 ajffidavits and oaths, 
 
 oath to a deponent 699 
 
 apprentices, 
 
 apprentice's indenture 705 
 
 consent by father or mother 706 
 
 justice's certificate, where the 
 father does not give the consent. 706 
 
 consent of guardian 706 
 
 consent by the overseer of the poor 
 or two justices of the peace of 
 the town, or the county judge of 
 the county where the infant re- 
 sides 707 
 
 complaint by master against ap- 
 prentice for refusing to serve.. . 707 
 warrant on the foregoingcomplaint 707 
 coiuraitmcnt of an apprentice re- 
 fusing to serve 708 
 
 complaint to two justices concern- 
 ing any misdemeanor or ill-be- 
 havior of an apprentice 708 
 
INDEX. 
 
 S83 
 
 Forms, 
 
 warrant on the foregoing complaint 709 
 
 commitment of an apprentice on 
 the foregoing complaint 709 
 
 discharge of the apprentice from 
 his service, and of the master 
 from his obligations 710 
 
 complaint bj an apprentice to two 
 justices, for the cruelty or mis- 
 usage of his master, or his re> 
 fusal to furnish him with neces- 
 sary proTisions or clothing 710 
 
 summons on the foregoing com- 
 plaint 710 
 
 discharge of an apprentioe on the 
 foregoing complaint 711 
 
 complaint by an apprentioe against 
 his master, where money has 
 been paid, or agreed to be paid. 711 
 
 summons on the foregoing com- 
 plaint 712 
 
 recognizance of master and surety 
 on the foregoing complaint 712 
 
 complaint by master against ap- 
 prentice refusing to serve, where 
 money has b.een paid or agreed 
 to be paid 713 
 
 summons on foregoing complaint . . 713 
 
 recognizance of apprentice and 
 surety on the foregoing complaint 713 
 bastards, 
 
 application of a superintendent, or 
 overseer of the poor, in a case 
 of bastardy 71^ 
 
 examination of the mother before 
 birth 715 
 
 examination after birth 716 
 
 warrant to apprehend reputed 
 father 716 
 
 endorsement on a warrant of arrest; 
 to be executed in a foreign 
 county 716 
 
 endorsement by a justice in a for- 
 , eign county 717 
 
 bond to be taken by the justice 
 before whom the reputed father 
 is carried 71S 
 
 certificate to be ecdoraed on war- 
 rant 719 
 
 subpoena in a case of bastardy .... 720 
 - bond on adjournment 720 
 
 order of filiation 721 
 
 bond on order of filiation 723 
 
 warrant to commit putative father 725 
 
 warrant lo commit a mother who 
 refuses to disclose the name of 
 the father 726 
 
 summons where the mother has 
 property in her own right 727 
 
 order to compel the mother to pay 
 for the support of the child 728 
 
 warrant to commit the mother. . . 729 
 
 bond by the mother of a bastard 
 to appear at the next court of 
 ' sessions • > •• 729 
 
 order reducing the sum to be paid 
 by the father or mother of a bas- 
 tard child .■- 730 
 
 Page 
 Forms, 
 
 warrant to discharge putative 
 father 731 
 
 warrant to seize the property of 
 abscondingfather of bastard.... 733 
 
 bond to be given by party where 
 property has been seized 733 
 
 order to discharge the warrant, 
 and to restore the property .... 734 
 beggars and vagrants, 
 
 record of the conviction of « va- 
 grant 737 
 
 warrant of commitment of a va- 
 grant 738 
 
 warrant to arrest a person in dis- 
 guise 739 
 
 warrant to commit a child to the 
 
 county poor-house 739 
 
 disorderly persons , 
 
 warrant to arrest a disorderly per- 
 son 741 
 
 recognizance of a disorderly per- 
 son 741 
 
 record of the conviction of a dis- 
 orderly person 742 
 
 warrant to commit a disorderly 
 person 743 
 
 warrant to commit a disorderly per- 
 son, after a recovery upon his 
 recognizance 744 
 
 discharge of a disorderly person, to 
 be granted by any two Justices. 745 
 disturbance of religioits meetings, ^c, 
 
 warrant to arrest a person for the 
 disturbance of a religious meet- 
 ing. &o 746 
 
 record of conviction for disturbing 
 a religious meeting, &c 747 
 
 execution to collect penalty and 
 costs, on such conviction 748 
 
 certificate of such conviction 749 
 
 security for the payment of penalty 
 and costs, upon conviction for 
 disturbing a religious meeting. . 751 
 
 warrant of commitment on such 
 conviction 751 
 
 warrant to seize goods forfeited by 
 being exposed to sale on Sunday 753 
 
 warrant to arrest for profanity . . 754 
 
 security for the payment of the 
 penalty and costs, upon convic- 
 tion for profanity 754 
 
 warrant of commitment, upon con- 
 viction for profanity 755 
 
 dogs, 
 
 order to kill a dangerous dog "56 
 
 draining swamps, 
 
 summons for a jury to determine 
 opening a ditch 758 
 
 oath to the jurors 758 
 
 inquisition 759 
 
 fugitives from justice, 
 
 warrant to commit a fugitive from 
 justice 781 
 
 bond by a fugitive from justice. .. 781 
 habitual drunkards, 
 
 notice designating habitual drunk- 
 ard, &C..., 788 
 
884 
 
 INDEX. 
 
 Page 
 Forms, 
 
 notice t,o overseers by justice 788 
 
 venire for a jury to try the fact of 
 
 habitual drunkenness 788 
 
 juror's oath 789 
 
 oath to wi tness 789 
 
 execution against the drunkard.. 790 
 execution against the overseers ., 790 
 revocation by the overseers, where 
 
 a drunkard reforms 791 
 
 hawkers and pedlers, 
 
 commitment of a hawker or pedler 
 for refusing to pay the penalty 
 
 for not showing his license 793 
 
 warrant to collect a penalty from a 
 
 hawker or pedler 794 
 
 highiuays and roads, 
 
 complaint against a person for re- 
 fusing to work on a highway. . . 796 
 complaint against a person for not 
 
 furnishing a team 796 
 
 summons for refusing to work on a 
 
 highway 797 
 
 return of constable on serving sum- 
 mons 79S 
 
 conviction endorsed on the com- 
 plaint 798 
 
 warrant to collect a fine for not 
 
 working on a highway 799 
 
 summons for a jury to re-assess 
 
 highway damages SOI 
 
 oath to the jurors 801 
 
 oath to witnesses 801 
 
 verdict of the jury 802 
 
 certificate of the justice 802 
 
 precept to summon a jury, in ease 
 of an encroachment on a high- 
 way 805 
 
 oath to jurors 806 
 
 oath to witnesses 806 
 
 certificate of the jury 807 
 
 warrant to collect costs of proceed- 
 ings, upon an encroachment on 
 
 a highway 808 
 
 certificate where no encroachment 
 is found 809 
 
 landlord and tenant, 
 
 petition and affidavit, where de- 
 mised premises are deserted .... 811 
 
 notice to tenant who has deserted 
 the demised premises 811 
 
 bond on appeal 812 
 
 notice to landlord of the appeal. . . 813 
 
 record of justice, where premises 
 are deserted 813 
 
 notice of intention to re-enter 
 demised premises 814 
 
 notice requiring payment of rent, 
 or possession of demised pre- 
 mises 816 
 
 affidavit to authorize the summary 
 removal of a tenant 817 
 
 summons to remove tenant holding 
 over after expiration of lease . . , 819 
 
 summons in a case of tenancy at 
 will, or at sufferance, terminated 
 by notice 819 
 
 Page 
 Forms, 
 
 summons to remove tenant for 
 non-payment of rent 820 
 
 affidavit of service of summons . . . 820 
 
 warrant to put in possession, where 
 tenant holds over after expira- 
 tion of lease 821 
 
 warrant to remove the tenant in a 
 case of tenancy at will, or at 
 sufferance, terminated by notice 822 
 
 warrant to put in possession, on 
 default of payment of rent 822 
 
 return of officer to warrant 823 
 
 affidavit to obtain trial by jury, in 
 proceedings to remove a tenant. 824 
 
 precept for a jury 824 
 
 oath to jurors 825 
 
 officer's oath to keep jury, after 
 evidence given 825 
 
 bond to stay proceeding, on a war- 
 rant for non-payment of rent.. . 826 
 
 security for rent, to stay proceed- 
 ings, where the tenant has taken 
 the benefit of an insolvent act.. 827 
 
 affidavit to stay proceedings, by 
 occupant of premises sold under 
 execution 828 
 
 affidavit for appeal to county court 
 in proceeding to remove a tenant 828 
 
 notice of appeal 830 
 
 undertaking on appeal 831 
 
 lunatics, 
 
 warrant to confine a lunatic 833 
 
 marriages, 
 
 form of marriage ^ 836 
 
 marriage certificate 837 
 
 justice s certificate . . .^ , . 838 
 
 parents absconding. 
 
 warrant to seize the goods of an 
 absconding father, husband, or 
 mother 839 
 
 bond to be given by party, where 
 property has been seized 840 
 
 order to discharge the warrant, and 
 
 to restore the property 840 
 
 pawn-brokers, 
 
 bond of claimant of property 
 pledged with a pawn-broker , . . 842 
 racing, 
 
 warrant to apprehend persons en- 
 gaged in racing 849 
 
 recognizance by person apprehend- 
 ed 849 
 
 town auditors, 
 
 affidavit to attach to an account. . 852 
 
 certificate of town auditors 852 
 
 abstract of claims audited by the 
 
 town auditors 852 
 
 vacancies in town offices, 
 
 warrant appointing town officers. . 854 
 
 notice of acceptance of resignation 
 
 of town officer 854 
 
 Fort Ann, 
 
 has five justices 4 
 
 FoBT Plain, 
 
 competency of justices, jurors, Ac., 
 in 286 
 
INDEX, 
 
 885 
 
 Page 
 
 Feance, 
 
 jurisdiction of justices in 2 
 
 what coins of, a legal tender 227 
 
 proof of conveyances made in .... 391 
 
 Franklin CountYj 
 
 jurors in 285 
 
 Fraud, 
 
 actions for, in justices' courts .... 27 
 
 dama.ges should be given for 83 
 
 may be shown by parol 357 
 
 [See Fraiidulent Confracfs.] 
 
 Feacdulent Contracts. 
 
 not binding 82 
 
 what misrepresentation constitutes 82 
 
 evidence of 82 
 
 effect of performing 82 
 
 may be rescinded 83 
 
 when concealment will make 83 
 
 damages on 83 
 
 false recommendations 84 
 
 false affirmations 84 
 
 deceit in the sale of horses 85 
 
 deceit in the sale of sheep ....... 100 
 
 Freeholders, 
 
 first process against * . 156 
 
 summons and .warrant against .... 163 
 
 Fedit, 
 
 contracts for the sale of 64 
 
 Fugitives from Justice, 
 
 may be arrested by justices. . .523, 780 
 provisions of U. S. constitution 
 
 concerning ^ • . 780 
 
 proceedings to arrest 780 
 
 when to be committed 780 
 
 may give bail. 780 
 
 warrant to commit 781 
 
 bond by 781 
 
 when to' be discharged 782 
 
 GAMING AND LOTTERY TICKETS. 
 
 charge of, to be on affidavit 785 
 
 contents of such affidavit ,. .. 785 
 
 warrant, when to issue 786 
 
 contents of warrant 785 
 
 disposition of property 786 
 
 fees : 786 
 
 Gas Companies, 
 
 copies certificates of incorporation 
 of, evidence 398 
 
 General Issue, 
 
 obsolete 216 
 
 GENE.SEE County, 
 
 jurors in ' 285 
 
 Governor, 
 
 to select justices of the peace 3 
 
 Grain, 
 
 complaint for firing, growing 542 
 
 piinishment for severing, from 
 the soil 621 
 
 Grand Larceny, 
 
 complaint for 540 
 
 warrant for 5B2 
 
 what is 696,618 
 
 punishment for.... 597, 618 
 
 Granville, 
 
 number of justices in 4 
 
 Grass, , ^ ra 
 
 contract for. sale ot , . ,,,..•..•.... 04 
 
 Page 
 
 Grass, 
 
 when tenants may mortgage 123 
 
 when it may be taken on execution 485 
 
 Grates, 
 
 punishment for violating 622 
 
 Great Britain, 
 
 what coins of, a legal tender 227 
 
 proof of conveyances made in 392 
 
 GiTARANTORS, 
 
 action against 72 
 
 evidence in actions against, of 
 
 notes 1 . . . . 431 
 
 Guaranty, 
 
 must express consideration 42 
 
 void expressing past consideration 43 
 
 of collection , ..> 42, 44 
 
 actions on 72 
 
 Guardians, 
 
 of lunatics 204 
 
 of infant defendants, 
 
 how appointed : '. 202 
 
 not liable for costs 202 
 
 form of consent by 204 
 
 of infant plaintiffs, 
 
 how appointed 153 
 
 must consent in writing 153 
 
 their consent to he filed 153 
 
 when to be appointed 153 
 
 form of consent by 153 
 
 HABEAS CORPUS, 
 
 for witness in jail 294 
 
 propriety of commitment for con- 
 tempt cannot be inquired into on 527 
 Habitual Drunkards, 
 
 overseers of the poor to designate, 787 
 penalty for furnishing liquors to. . 787 
 liquor not to be furnished to 
 
 children or apprentices of 787 
 
 notice designating 783 
 
 may apply to jury to try /act 788 
 
 notice of such application to be 
 
 given to overseers 788 
 
 venire to issue for jury 788 
 
 form of notice to overseers 788 
 
 form of venire 789 
 
 witness, how summoned 789 
 
 oaths to jurors and witnesses 789 
 
 verdict of jury, presumptive evi- 
 dence 789 
 
 when judgmtfnt to be entered 
 
 against 789 
 
 execution against 790 
 
 iudgment, when verdict is in favor 
 
 *■ of....! 790 
 
 costs in such case 790 
 
 execution against overseers 790 
 
 notice against, may be revoked. . . 791 
 
 form of such revocation . .• 791 
 
 both overseers must proceed against 791 
 
 • fees 791 
 
 Hand-Writing, 
 
 how proved, 41S 
 
 Hanover, 
 
 has five justices 4 
 
 Harmony, 
 
 ■ ; has five justices...... 4 
 
886 
 
 INDEX. 
 
 Page 
 Hawkers and Pedlehs, 
 
 liable to penalty for selling with- 
 out license 792 
 
 and for not showing license 792 
 
 form of commitment of 793 
 
 who may apprehend abd detain . . 793 
 
 duty of overseers to do so 793 
 
 when to be convicted 793 
 
 warrant against 794 
 
 when not entitled to costs 794 
 
 actions by 794 
 
 acrions against, when to be com- 
 menced 795 
 
 fees 795 
 
 Hearsay Evibence, 
 
 [See Evidence.'} 
 Hector, 
 
 has five justices 4 
 
 Highways, 
 
 who entitled to possession of 11] 
 
 evidence of possession to centre of. Ill 
 
 actions for trespass upon Ill 
 
 vacancy in office of commissioner 
 
 of, how filled 855 
 
 vacancy in office of overseer of, 
 
 how filled 855 
 
 Highways and Roads, 
 collection ofjines for not working on, 
 fine for refusal or neglect to work 795 
 
 fine for hindering others 795 
 
 fine for neglecting to furnish a 
 
 team, &c 796 
 
 overseers of, to make complaint.. 796 
 corporations, liable to be fined... /96 
 complaints for neglect to work,&c. 796 
 overseer, judge of delinquency. . . 797 
 justice, to summon party refusing 
 
 to work 797 
 
 form of summons 797 
 
 such summons, how served 797 
 
 such summons, against corporations 798 
 return of constable on summons.. 798 
 
 fine, when to be imposed 798 
 
 when warrant to issue 79S 
 
 conviction endorsed on complaint. 798 
 
 warrant for 799 
 
 authority of overseer, a jurisdic- 
 tional fact 799 
 
 officer, not liable to action 799 
 
 to whom fine to be paid 800 
 
 re-assessment of damages for laying 
 out, 
 
 appeal, how taken 800 
 
 jurors, how summoned 800 
 
 jury, how drawn and sworn 801 
 
 witnesses, to be sworn 80 1 
 
 jury, to view premises 801 
 
 and to deliver verdict in writing.. 802 
 verdict, to whom to be delivered. . 802 
 
 verdict final 802 
 
 removal of obstructions and en- 
 croachments, 
 
 penalty for obstructing 803 
 
 plea of title, not a bar to action for 803 
 who may maintain action for pen- 
 alty 803 
 
 what is an obstruction 803 
 
 process, to bo endorsed 803 ! 
 
 Pago 
 
 Highways and Roads, 
 
 penalty for injuring 803 
 
 penalty for obstructing water 
 
 course ; 803 
 
 fences, how removed 804 
 
 contents of order to remove fences 804 
 penalty for not removing fences.. 804 
 proceedings, when encroachment 
 
 is denied 805 
 
 jury, how summoned 805 
 
 oaths to jurors and witnesses 806 
 
 duty of jury 806 
 
 to certify fact of encroachment. . . 806 
 
 form of certificate 807 
 
 finding of jury conclusive , , 807 
 
 certificate, where to be filed 807 
 
 occupant, when to remove fences. 808 
 
 occupant to pay costs 808 
 
 costs may be collected by warrant 808 
 certificate of jury, when no en- 
 croachment is found 809 
 
 costs in such cases 809 
 
 fees, for all proceedings 809 
 
 Hiring, 
 
 definition of 58 
 
 liabilities of bailees 60 
 
 of horses on Sunday 80 
 
 Holland Land Company, 
 
 papers and field notes of, evidence 401 
 
 Homer, 
 
 recovery of penalties 120 
 
 Homicide, 
 
 when justifiable or excusable .... 597 
 
 Horses, 
 
 actions for use of, on Sunday .... 80 
 
 fraud in sale of 84 
 
 recoupment in actions for use of.. 241 
 
 House of Refuge, 
 
 juvenile delinquents to be sent to. 649 
 
 Hdsband and Wife, 
 
 statutes relative to 87 
 
 estate by curtesy 89 
 
 chattels real, and debts due to lat- 
 ter 90 
 
 debts of latter before coverture. . . 90 
 liability of former for necessaries. 90 
 
 adultery of either 90 
 
 liability of former for acts of latter 90 
 
 wife may act as agent 97 
 
 actions by, against, and between. 151 
 
 presumptions of survivorship 313 
 
 former, when bound by admissions 
 
 of latter 348 
 
 latter cannot be witness against 
 
 former 352 
 
 incompetent, as witnesses for and 
 
 against each other 361 
 
 husband, competent to prove mar- 
 riage 367 
 
 Husbands, 
 
 [See Husband and Wife."] 
 
 IDIOTS, 
 
 cannot appoint agent. 97 
 
 to sue and be sued in their own 
 
 names ,.*\ 204 
 
 tender on behalf of 225 
 
 iuoompotent as jurors 2S6 
 
INDEX. 
 
 887 
 
 Page 
 Idiots, 
 
 incompetent as witnesses 360 
 
 Illegal Contracts, 
 
 what are 77 
 
 actions not maintainable on • • ■ ' > . 77 
 
 examples of 77 
 
 in restraint of marriage and trade 77 
 [See Contracts, and Fraudulent 
 Contracts.} 
 Implied Contracts, 
 
 [See Contracts.} 
 Imprisonment, 
 
 justices punishable by 10 
 
 for neglecting to fill up process.. . 159 
 for suing out process against am- 
 bassadors ,. 177 
 
 for taking reward from prisoner. . 179 
 for serving process on Jews and 
 Seventh Day Baptists on Satur- 
 day 190 
 
 refusing to assist in execution of 
 
 process 191 
 
 of defaulting witnesses 277 
 
 for contempt of court ' 626 
 
 [See Crimea, and Executions.^ 
 Incest, 
 
 what is 596 
 
 punishment for 596 
 
 Indentures, 
 
 [See Apprentices.'] 
 Indians, 
 civ it f 
 
 when competent as witnesses for 
 
 themselves 364 
 
 criminal, 
 
 punishment for giving liquor to . . 633 
 special, 
 
 children of, when not to be bound 
 
 apprentices 701 
 
 Indictment, 
 
 justice's title to ofl3.ce, may be 
 
 questioned by 10 
 
 Infancy, 
 
 personal privilege 93 
 
 cannot be .pleaded by another .... 93 
 
 cannot bo assigned for error 93 
 
 a disability under statute of limit- 
 ations 137, 140 
 
 how proved 421 
 
 Infants, 
 civil, 
 
 age of majority 93 
 
 acts of, void and voidable 93 
 
 must give notice of disafiirmance. 93 
 
 liabilitry of, for necessaries 93 
 
 cannot recover consideration paid. 93 
 must pay back consideration re- 
 ceived . 93 
 
 can hold property 94 
 
 liability of, for wrongs . 94 
 
 ineligible to oflace 94 
 
 may receive pay when 94 
 
 when they may act by agents 97 
 
 may act as agents 97 
 
 may be partners 403 
 
 cannot appear by attorney.. .153, 202 
 actions by * .-•• 153 
 
 Page 
 
 IlIFANTS, 
 
 must appear by guardian .... 153, 202 
 
 guardians of infant plaintiffs 153 
 
 guardians of infant defendants 202, 205 
 
 recoupment in actions by 241 
 
 presumptions of law in respect to. 317 
 burden of proof on, as to infancy 
 
 421, 329 
 
 when competent as witnesses 357 
 
 criminal, 
 
 competent to testify as to crimes . 539 
 may be required to find sureties 
 
 for appearance 579 
 
 recognizance by sureties for, as 
 
 witnesses 582 
 
 cannot become sureties 626 
 
 Injuries, 
 civil, 
 
 actions for, by personal represent- 
 atives 94 
 
 by neglect of roads 97 
 
 to the person 110 
 
 to real property 110 to 114 
 
 to personal property 114 to 119 
 
 to domestic animals 116, 117 
 
 actions for, when to be commenced 138 
 
 tender in actions for 229 
 
 plaintiff seeking to recover for, 
 
 must be free from fault 4t4 
 
 damages for 443 
 
 criminal, 
 
 to railroads 618 
 
 Inn-Keepers, 
 
 disqualification of justices who are 22 
 
 Innocence, 
 
 presumption of 318, 320 
 
 [See Evidence-I 
 
 Insanity, 
 
 a disability under statute of lim- 
 itations 137, 140 
 
 disqualifies a juror 2S6 
 
 must be proved 323 
 
 Insolvent's Discharge, 
 
 evidence, how far 401 
 
 Inspection, 
 
 of private writings , 409 
 
 Inspector of Elections, 
 
 vacancy in office of, how filled.... 855 
 
 Instruments, 
 
 in the nature of chattel mortgages 54 
 actions or defence on, for payment 
 
 of money 210 
 
 proof of execution of 330 
 
 must be given in evidence 330 
 
 construction of 356 
 
 consideration of negotiable, when 
 
 inquirable into 356 
 
 proved or acknowledged evidence. 408 
 [See Coiweyances, Evidence, and 
 Subscribing Witnesses.} 
 
 Insurance Companies, 
 
 are private corporations 96 
 
 Interest. 
 
 disqualification on account of. .22, 24 
 
 computation of, on notes 72 
 
 legal rate of 72 
 
 when allowable 72 
 
 customers, when bound to pay ... 72 
 
888 
 
 INDEX. 
 
 Interest, 
 
 usage as to ; . . . , 73 
 
 rule as to computation of 73 
 
 to be demanded on balance of ac- 
 count 73 
 
 "when barred by receipt of debt. . . 73 
 
 mistakes in computing i.. 75 
 
 after tender 231 
 
 not recoverable against Common 
 
 carriers 448 
 
 judgments bear 474 
 
 executions, to direct the collection 
 
 of 474 
 
 Interrogatories J 
 
 parties may agree upon 265 
 
 general, must be answered 265 
 
 form of direct and cross 266 
 
 justice may settle 267 
 
 form of assent to, by parties 267 
 
 [See Commissions. '\ 
 Inventory, 
 
 constables to make, of property 
 
 attached , 182, 386 
 
 of property levied on 481 
 
 Ireland, 
 
 proof of conveyances made in 392 
 
 Issue, 
 offact, 
 
 to be decided before issue of law., 214 
 
 when it arises 279 
 
 trial, the examination of 279 
 
 sufficient, if substance of, is proved 329 
 [See Joinder of Issue] 
 
 JAILS, 
 
 keepers and employees in, exempt 
 
 from jury duty ..... 287 
 
 witnesses in, how brought out .... 294 
 fathers of bastards, not entitled to 
 
 liberties of 725 
 
 [See County Jails.] 
 Jefferson County, 
 
 jurors in 285 
 
 Jews, 
 
 civil process not to be served on, 
 
 on Saturday r 190 
 
 when exempt from jury duty 287 
 
 Joinder of Issue, 
 
 when to be made 209 
 
 must be before adjournment 209 
 
 money may be paid into court after 232 
 notice of set-off to be given on . . . 236 
 Joint-Stock Associations, 
 
 actions by and against 147, 1 50 
 
 Judgments, 
 civil, 
 rule of pleading, of inferior courts 
 
 IS, 19 
 void, for want of jurisdiction.. 18, 35 
 void, by reason of interest, &C.22 to 26 
 
 actions on justices' 27 
 
 by confession, to be entered by jus- 
 tices 28 
 
 transcripts of, of courts in New 
 
 York, may be filed 30 
 
 confession of,doesnotoonfer juris- 
 diction 36 
 
 Page 
 Judgments, 
 
 confession of, by partners 105 
 
 payment of, in actions for penal- 
 tics 124 
 
 under mechanics' lien law 133 
 
 transcript of such, to be filed 133 
 
 actions on, within 'what time to be 
 
 commenced 138 
 
 actions on, when to be brought... 139 
 
 new actions on reversal of 141 
 
 of nonsuit, plaintiff not appealing 206 
 of discontinuance, when .....207, 214 
 
 how pleaded .,,. 211 
 
 offer for 216 
 
 acceptance of offer 216 
 
 former, must be pleaded 222 
 
 on attachment, when presumptive 
 evidence of indebtedness., .236, 454 
 
 on set-off 236, 237 
 
 on set-off, against executors, &c,, 237 
 
 after irregular adjournment 259 
 
 not to be entered on Sunday 305 
 
 when not to be given for variance. 305 
 of justices in adjoining states, how 
 
 proved . 387 
 
 record and exemplification of, evi- 
 dence • 397 
 
 different kinds of 450 
 
 interlocutory 450 
 
 final 450 
 
 definition of 450 
 
 civil, 
 
 when to be rendered 453, 454 
 
 when to be entered in docket. 454, 455 
 
 cannot be altered after entry 455 
 
 cannot be had by default 455 
 
 revival of 459 
 
 cannot be kept alive to cover new 
 
 demands 459 
 
 payment on, discharge protanto. 459 
 of justices, cannot be impeached 
 
 collaterally 452 
 
 of justices, how proved 462 
 
 justices to keep index of 464 
 
 to be rendered with costs 465 
 
 costs of losing party, not to be in- 
 serted in 465 
 
 bear interest from date 474 
 
 not extinguished by levy 482 
 
 good, after imprisonment of de- 
 fendant 496 
 
 execution on 473, to 497 
 
 stay of execution on 502 
 
 on appeal, how to be given 504 
 
 return to appeal, to be annexed 
 
 to 507 
 
 ttfter trial, 
 
 for defendant 453 
 
 for plaintiff 453 
 
 against joint defendant, not ap- 
 pearing 453 
 
 when to be rendered. .,.,•*.* .... 454 
 confession of, 
 
 justices may take 450 
 
 statute concerning 451 
 
 defendant must appear, to autho- 
 rize 451 
 
 examples of void 451 
 
INDEX. 
 
 889 
 
 Page 
 
 JuiDQMENTS, 
 
 several, on one demand 452 
 
 form of 452 
 
 when to be on affidavit 452 
 
 form of affidavit on 452 
 
 nonsuitf 
 
 when to be rendered. . . ; 453 
 
 transcript of justice^Sf 
 may be filed and docketed in county 
 
 clerk's office -. 455 
 
 when lien of, commences 455 
 
 amount of, to be a lien on real 
 
 property 455 
 
 former provisions concerning 456 
 
 duration of lien of, 457 
 
 in New York 458 
 
 must correspond with judgment*. 458 
 
 contents of 458 
 
 prima facte evidence of judgment 458 
 may be given after expiration of 
 
 office :..... 458 
 
 justice cannot issue execution 
 
 after filing of 458 
 
 criminaly 
 
 when complaint was malicious .... 650 
 reversal of, 
 
 on appeal to court of sessions from 
 judgment of special sessions 
 
 665 to 671 
 satisfaction of, 
 justices may take acknowledg- 
 ments 686 
 
 by parties and attorneys 689 
 
 forms for 696 
 
 [See Evidence.} 
 Juris DICTION, 
 
 of justices generally 2 
 
 civil, 
 
 definition of term 17 
 
 distinction between courts of 
 
 general and special 18 
 
 of the latter, must be shown 18 
 
 judgments void for want of 19, 36 
 
 can always be inquired into 19 
 
 of inferior courts, never presumed 19 
 consent will not give, as to subject 
 
 matter 20 
 
 once gained, cannot be lost 20 
 
 when acquired, proceedings valid. 20 
 of justice's courts, conferred by 
 
 statute 20 
 
 how acquired as to parties 20 
 
 territorial, of justices 21, 34 
 
 justices acting beyond, trespassers 24 
 officer protected, unless want of, 
 
 appears 25 
 
 want of, must be total, to avoid 
 
 proceedings 25, 35 
 
 want of, may always be shown .... 25 
 when justices not obliged to exer- 
 cise. ■• 25 
 
 civil, of justices 26, 27 
 
 of marine court 28, 29 
 
 of district courts 29, 30 
 
 of justices' courts in cities 29 
 
 territorial, of justices 34 
 
 of tho person 35 
 
 Page 
 Jurisdiction, 
 
 confession of judgment does not 
 
 confer 36 
 
 of actions for penalties, &g 119 
 
 in actions under mechanics' lien 
 
 laws 131 to 133 
 
 when it may be conferred by con- 
 sent 207 
 
 plea to 220 to 222 
 
 plea to, when waived 220 
 
 consent will not give, of question 
 
 of title 247 
 
 of actions on canal contractors' 
 
 bonds 390 
 
 justice's transcript must show.... 462 
 
 criminal, 
 
 of justices 520 
 
 co-extensive with boundsof county 521 
 
 of courts of sessions 581, 665 
 
 of courts of oyer and terminer. . . 581 
 
 of courts of special sessions 629 
 
 pleas to, in criminal cases 637 
 
 criminal, of United States courts. 784 
 
 territorial, of those courts 785 
 
 Jurors, 
 
 civil, 
 
 in actions for penalties 1 23 
 
 how summoned 282 
 
 venire for 282 
 
 punishment of defaulting 284 
 
 qualifications and exemptions of. . 285 
 
 challenges to 290 
 
 oath to 293 
 
 fees of, in civil actions 471 
 
 crimiiial, 
 
 punishment for corrupting 613 
 
 punishment of, accepting bribes.. 618 
 
 not entitled to fees 642 
 
 oath to r. 642 
 
 special, 
 
 may be fined for non-attendance. 684 
 
 draining swamps, 
 
 how summoned 758 
 
 oath to.., 758 
 
 duty of 759 
 
 inquisition by 759 
 
 fees 760 
 
 habitual drunkards, ' 
 
 how summoned 788 
 
 their duty 789 
 
 oath to 789 
 
 fees 791 
 
 highways and roads, 
 
 how summoned, to re -assess 
 
 damages - - • - 801 
 
 oath to, in such case 801 
 
 verdict of, in such case 802 
 
 how summoned, when encroach- 
 ment is denied .... 805 
 
 oath to, in such case 806 
 
 certificate by, in such case • 807 
 
 fees 809 
 
 landlord and tenant, 
 
 trial by 824 
 
 precept for, in such case p. .. 824 
 
 oath to, in such case 825 
 
 [See Disorderly Persons, and 
 Jury.} 
 
890 
 
 INDEX. 
 
 Page 
 Jury, 
 civil f 
 
 demanda passed upon by, ex- 
 tinguished 222 
 
 verdict of, when conclusive 222 
 
 question of tender, for the 225 
 
 trial by, when to be demanded 
 
 280 to 281 
 
 venire for * • • • 281 
 
 drawing 289 
 
 challenging 290 
 
 swearing 293 
 
 statement of action to 293 
 
 statement of defence to 300 
 
 summing up to 300 
 
 charging 301, 325 
 
 retiring of *. .- 301 
 
 delivery of verdict by 304 
 
 disagreeing, new venire to issue., 304 
 
 may be sent back 304 
 
 may be discharged on Sunday .... 305 
 
 may be polled 305 
 
 not to infer bad character of de- 
 
 lendant 321 
 
 to determine sufficiency of evi- 
 dence 325 
 
 criittinaly 
 
 how summoned 641 
 
 court has no authority to try by 
 
 less than six 641 
 
 not entitled to fees 642 
 
 challenges to 642 
 
 oath to 642 
 
 special, 
 
 punishment of officer refusing to 
 
 take charge of .... 684 
 
 [See Jurors.'} 
 Justices, ^ 
 
 of marine court in New York.... 12 
 of district courts in New York ... 12 
 Justices* CounTS, 
 
 marine court in New York 12 
 
 in Albany 12, 21 
 
 in Troy 13, 21 
 
 in Hudson 13, 21 
 
 their jurisdiction limited 17 
 
 and must be shown 18 
 
 jurisdiction of, how created 20 
 
 take nothing by implication 20 
 
 powers of, in cities 21 
 
 jurisdiction of parties, how ac- 
 quired by 20 
 
 causes of action, cognizable in 26, 27 
 
 actions not cognizable in 27 
 
 jurisdiction of, in cities 29 
 
 jurisdiction of, as to amount 30 
 
 territorial jurisdiction of 34 
 
 their jurisdiction of the person... 35 
 actions in, when to bo brought. . . 34 
 
 no reply in 217 
 
 may amend pleadings 218 
 
 appeals from 497 
 
 Justices of the Peace, 
 
 how formerly nominated 1 
 
 how appointed in England 1 
 
 jurisdiction of, in England 2 
 
 jurisdiction of, in France 2 
 
 Pago 
 Justices of the Peace, 
 
 their appointment in colony of 
 
 New York 2 
 
 their jurisdiction in that colony 2, 3 
 their appointment under constitu- 
 tion of 1777 3 
 
 number of, in towns, when first 
 
 l.mited > 3 
 
 selection of, under constitution of 
 
 1821 3 
 
 term of office of 3, 4 
 
 made elective, In 1826 4 
 
 elected, under constitution of 1846 4 
 
 one to be elected annually < 4 
 
 qualifications of 4 
 
 in Hector 4 
 
 in Potsdam 4 
 
 in Ellibburgb 4 
 
 in Lenox 4 
 
 in Champlain 4 
 
 in Eeekmantown 4 
 
 in Harmony 4 
 
 in Hanover , , 4 
 
 in Schodack 4 
 
 in Fort Ann 4 
 
 in Brookhaven 4 
 
 in Buffalo 4 
 
 in Schenectady 4 
 
 in Utica •. 4 
 
 in Kochester 4 
 
 in Auburn ^ 4 
 
 in Syracuse 4 
 
 in Oswego 4 
 
 certificate of election of 5 
 
 to be notified of election 5 
 
 election of, in new towns.. 5 
 
 notice of drawing of .5, 6 
 
 clasiiifiGation of, in new towns.... 6 
 
 retain office, when town divided.. 7 
 their official term cannot b&short- 
 
 ened 7 
 
 holds a judicial office 8 
 
 elected for regular term 8 
 
 electors, to designate official term 
 
 of 8 
 
 classification of 8 
 
 elected to fill vacancy '.... 9 
 
 when to enter on duties of office.. 9 
 
 vacancies in office of, how filled... 9 
 
 to take oath of office 9 
 
 to deposit oath in county clerk's 
 
 office 10 
 
 when and where to file bonds 10 
 
 effect of neglecting to file oath or 
 
 bond 10 
 
 acting without taking oath or filing 
 
 bond, guilty of misdemeanor... 10 
 but their acts valid as to the pub- 
 lic 10 
 
 their title to office, how ques- 
 tioned 10 
 
 when office of, becomes vacant. 10, H 
 
 to whom to present resignation. . . 11 
 
 may be removed 11 
 
 in Albany 12 
 
 election of, in that city. .. ....12, 13 
 
 in Troy 13 
 
 in Hudson .. 13 
 
INDEX. 
 
 891 
 
 Page 
 Justices of the PeacEj 
 civil, 
 
 their jurisdiction, generally 17 
 
 trespassers, when acting without 
 
 jurisdiction 20, 260 
 
 whore to reside 21, 34 
 
 territorial jurisdiction of. . . . . .21, 34 
 
 process of, whero to be served and 
 
 returned. 21, 35 
 
 processor, when void 21 
 
 how disqualified 22, 23 
 
 interested or related .... 22 to 26, 280 
 cannot ^iit in their own causes .... 24 
 when not to try actions for penal- 
 ties .... * 24 
 
 issuing process without proof, 
 
 trespassers • • ^ • 25 
 
 when acts of, voidable 26, 32 
 
 when not obliged to act 26 
 
 civil jurisdiction of 26, 27 
 
 may enter judgment by confession 27 
 
 actions not cognizable by 27 
 
 amount of judgments to be ren- 
 dered hy , ..^ 31 
 
 their jurisdiction of actions on 
 
 judgments. ....". 32 
 
 their jurisdiction of matters of 
 
 account 33 
 
 their subpoenas run to adjoining 
 
 county 35 
 
 where to issue process 35 
 
 their jurisdiction of the person. . . 35 
 can try actions by and against 
 
 corporations 95 
 
 their jurisdiction in actions for 
 
 damages 110 
 
 their jurisdiction as to penalties, 
 
 Ac. 109 
 
 when and how to endorse process. . 122 
 canalboats, when to bo detained 
 
 by 124 
 
 have jurisdiction of mechanics' 
 
 liens 131 
 
 to appoint guardians for infant 
 
 plaintiffs 152 
 
 names of, must appear in summons 157 
 
 to sign summons 158 
 
 cannot depute official power 159 
 
 their authority to issue long sum- 
 mons 159 
 
 when to issue warrant 160 
 
 when to issue body execution. . . . 160 
 when to issue either summons or 
 
 warrant 162 
 
 when to iasue short summons 163 
 
 when to issue attachment • 165 
 
 may amend attachment 167 
 
 when to issue short attachment. . . 168 
 issuing attachment without proof, 
 
 trespassers » 170 
 
 approval of, on attachment bonds. 172 
 civil, 
 
 to approve sureties on claimant's 
 
 bond •■• 185 
 
 when to hear action commenced by 
 
 attachment • 188 
 
 may empower deputy to serve pro- 
 cess ... * " • IS^ 
 
 Pago 
 Justices op the Peace, 
 
 may amend clerical mistakes 191 
 
 to appoint guardians for infant de- 
 fendants 202 
 
 to endorse consent of such guar- 
 dian 203 
 
 cannot act upon their knowledge 
 
 or appointment of attorney.... 204 
 to wait one hour after return of 
 
 process 206, 260 
 
 failing to appear on return day. . . 207 
 their duty on return of warrant . . 207 
 cannot be witnesses before them- 
 selves 208 
 
 cannot act on knowledge as evi- 
 dence 204, 208, 281 
 
 proceedings when they are material 
 
 witnesses 208 
 
 may require party to exhibit ac- 
 count 209 
 
 to enter pleadings in docket 210 
 
 construction of pleadings by 211 
 
 duty on sufstaining demurrer^ &c. . 196 
 
 not to buy demands for suit 220 
 
 no jurisdiction when accounts over 
 
 $400 .' 238 
 
 nor of the title to real property. . . 243 
 to approve undertaking on plea of 
 
 title 243 
 
 duty, when title nut disputed .... 245 
 
 adjournments on motion of 248 
 
 to adjourn on motion of plaintiff. . 249 
 when to grant adjournment on 
 
 warrant 250 
 
 when to commit witness . 251, 279, 296 
 to approve bond on adjournment.. 254 
 
 when to issue commission 26 1 
 
 have discretion as to issuing com- 
 mission 264 
 
 to settle interrogatories 265 
 
 to direct return of commission .... 267 
 
 may issue subpoenas 270 
 
 when to issue attachment against 
 
 witness 272 
 
 when to fine witnesses 275 
 
 to make minute of conviction of 
 
 witness 277 
 
 to issue executioh on such convic- 
 tion 278 
 
 to commit witness refusing to 
 
 testify 279, 296 
 
 when to try action 280, 284 
 
 cannot have partners 280 
 
 trying causes, to swear witnesses, 281 
 cannot decide on their own know- 
 ledge 281 
 
 general rules as to trials by 280 
 
 when to issue venire 282 
 
 to whom to deliver venire 282 
 
 when may issue venire 282, 289 
 
 when to discharge and excuse 
 
 jurors 287 to 289 
 
 drawing of j ury by 289 
 
 to determine principal challenge.. 290 
 cannot challenge panel of jurors . . 290 
 
 swearing the jury by 293 
 
 to decide upon competency of wit- 
 ness *.; 294 
 
892 
 
 INDEX. 
 
 Page 
 Justices op the Peace, 
 
 swearing witnesses by 296 
 
 to decide upon objections to evi- 
 dence 298 
 
 when to nonsuit plaintiffs 299 
 
 charging jury by 301, 325 
 
 to swear officer taking charge of 
 
 jury 301 
 
 rot to interfere with jury 302 
 
 to enter verdict in docket 304 
 
 to call plaintiff to receive verdict. 304 
 to issue new venire when jury dis- 
 agree 304 
 
 may send jury back to reconsider 
 
 verdict 304 
 
 may receive verdict on Sunday. . . 305 
 when, cannot give judgment for 
 
 variance 306 
 
 proceedings of, presumed to be 
 
 regular 314 
 
 to determine admissibility of evi- 
 dence 325 
 
 may reject irrelevant evidence . . . 326 
 may change order of evidence.... 327 
 to exclude as witnesses persons in- 
 toxicated 360 
 
 transcripts of dockets of, in adjoin- 
 ing states, evidence 387 
 
 in adjoining states, may prove 
 
 dockets 387 
 
 can try actions on canal contrac- 
 tors' bonds 390 
 
 to enter judgment by confession 
 
 451, 452 
 when to enter judgment .... 453, 454 
 when to enter judgment in docket. 455 
 to give transcripts of judgments.. 455 
 to give transcripts of judgments 
 
 and pleadings, on default 458 
 
 their fees for such transcripts .... 459 
 may certify transcript, after ex- 
 piration of office 458 
 
 cannot issue execution, after tran- 
 script is filed 459 
 
 what to enter in docket 459 
 
 form of entries by, in docket .... 460 
 
 to certify copy of docket 461 
 
 docket of, evidence 462 
 
 transcript of docket of, evidence . 462 
 to certify transcript of docket .... 462 
 transcript must show jurisdiction 
 
 of 462 
 
 may make oath to docket 463 
 
 proceedings how proved, after 
 
 death of 463 
 
 may identify pleadings 463 
 
 to fiile papers and affidavits 463 
 
 to keep index of judgments 464 
 
 removing, where to deposit papers 464 
 removed, where to deposit papers. 464 
 
 to certify book of minutes 464 
 
 to render judgment with costs .... 465 
 
 fees of, in civil actions 468 
 
 not allowed fees for advice 472 
 
 receiving illegal fees, guilty of 
 
 misdemeanor 472 
 
 may demand fees in advanoe. . ••• . 472 
 their duty aa to executions 473 
 
 Page 
 Justices of the Peace, 
 
 neglecting to pay over money^ 
 guilty of a misdemeanor ....... 472 
 
 notice of appeal, to bo served on. 473 
 fee of on return to appeal 499, 502, 508 
 to approve undertaking on appeal. 503 
 "when to make return to appeal .. 504 
 
 form of return by, to appeal 504 
 
 criminal, 
 
 criminal jurisdiction of 620 
 
 must be exercised in county 521 
 
 may arrest fugitives from justice. 523 
 their authority as conservators of 
 
 the peace 523 
 
 statute of limitations as to juris- 
 diction of 524 
 
 issuing process, act ministerially. 536 
 
 liable for ministerial acts 536 
 
 rule as to liability of 536 
 
 duty as to criminal complaints .... 538 
 
 to add jurat to complaint 555 
 
 when justified in issuing warrant, 556 
 
 when to issue warrant 556 
 
 how to draw warrant 657 
 
 how to make warrant returnable . 558 
 
 to whom to direct warrant 560 
 
 their duty when accused is in 
 
 jail 565 
 
 when Lo endorse warrant 567 
 
 not liable for endorsing warrant.. 568 
 general directions as to taking ex- 
 aminations by 571 
 
 maybe associated with each other 571 
 may commit prisoner for further 
 
 examination 572 
 
 how to take testimony of prosecu- 
 tion. 573 
 
 may take testimony of accomplices 573 
 not to hold out hope of pardon , . . 574 
 how to take examination of pri- 
 soner 674 
 
 to caution prisoner . . * • 574 
 
 discretion of, as to such examina- 
 tion 575 
 
 to write down answers of prisoner 577 
 to certify examination of prisoner 577 
 to exclude witnesses while prisoner 
 
 is examined 577 
 
 may commit prisoner for contempt 578 
 
 when to discharge a prisoner 679 
 
 when to bind over complainant and 
 
 witnesses 579 
 
 may commit witness refusing to be 
 
 bound 679 
 
 whore to certify examinations, &o, 
 
 680 to 583, 627 
 how to draw recognizance for a 
 
 witness 581 
 
 may be compelled to return re- 
 cognizance, &c 583 
 
 when to commit prisoner 583 
 
 when not liable for committing 
 
 prisoner » . • 607 
 
 wrongfully taking bail, guilty of 
 
 escape 625 
 
 powers of, to bail under acts of 
 
 Congress 625 
 
 fees of, in criminal oases 67& 
 
INDEX. 
 
 893 
 
 Justices of the Peace, Page 
 
 affrays, 
 
 to qnell affrays and riots 525 
 
 may command assistance to do so. 525 
 may command arrest of rioters. . . 525 
 
 contempts of courts 
 
 Tvhen, may commit for 525 
 
 what punishment to inflict for .... 527 
 
 may arrest offender 527 
 
 to hear offender in defence. 527 
 
 when to convict offender 528 
 
 to make up record of conviction . . 528 
 
 to file such record • • • • 529 
 
 to issue warrant of commitment.. 529 
 
 dying declarations} 
 
 how and when to take 530 
 
 search warrant, 
 
 when to issue 53 L 
 
 when to authorize search, at night 532 
 their duty on return of 534 
 
 searching prisoners) 
 their duty as to 534 
 
 5^0^671 property, 
 
 their duty as to 535 
 
 surety of thB peace, 
 
 when to issue peace warrants 673 
 
 when to require recognizance to 
 
 keep the peace 674, 676 
 
 when to commit the prisoner 675 
 
 [See Bail,' Commitments, Execu- 
 tions, and Special Sessions*^ 
 
 special, 
 
 must strictly pursue statute 683 
 
 may demand fees in advance 683 
 
 proceedings before one, how con- 
 tinued before another 684 
 
 acknowledgments J 
 
 have powers of commissioners of 
 
 deeds 686 
 
 and may take acknowlegment and 
 
 proof of conveyances 686 
 
 and acknowledgment of satisfac- 
 tion of judgments 686, 689 
 
 but not of bail in supreme court.. 686 
 how to certify acknowledgments . 687 
 punishment for taking, improperly 688 
 cannot take, of wills and notes. . . 689 
 fees 697 
 
 affidavits and oaths, 
 
 may take and administer 697 
 
 may administer oaths to town 
 
 officers 698 
 
 and to militia officers 6:9 
 
 fees 699 
 
 apprentices, 
 
 may consent to binding out of .... 700 
 
 wh&n to issue warrant for 7o3 
 
 to examine into complaints of 
 
 masters of ■ 704 
 
 to examine into complaints of..., 704 
 fees 714 
 
 arbitrators y 
 
 may administer oaths to 845 
 
 may compel witnesses to attend 
 
 before 845 
 
 fees .- 846 
 
 bastards, 
 
 application to be made to, con- 
 cerning ...» ..../. 714 
 
 Justices op the Peace, Page 
 
 to ascertain father of 715 
 
 to issue warrant for father of 716 
 
 to direct amount of bond to be 
 
 taken from father of 716 
 
 in foreign county, to endorse war- 
 rant 717 
 
 and to take bond from reputed 
 
 father 718 
 
 and to certify the fact on the war- 
 rant 719 
 
 two, to be associated, to examine 
 
 into case 719 
 
 may compel attendance of wit- 
 nesses 720 
 
 may adjourn lamination 720 
 
 duty of, on such examination • > > ■ 721 
 when to commit reputed father. . . 724 
 penalty to be inserted by, in bonds 724 
 duty, when bond is returned from 
 
 foreign county 725 
 
 may compel mother of, Lo disclose 
 
 name of father 726 
 
 and if she refuses, commit her . . . 726 
 when to charge mother with sup- 
 port of child 729 
 
 when to commit mother 729 
 
 may reduce amount directed by 
 
 order to be paid 730 
 
 cannot sit in sessions, on appeal.. 730 
 where to transmit bonds and orders 
 
 731, 732 
 
 when to discharge father 73 L 
 
 endorsing warrant, protected .... 735 
 proceedings when justice issuing 
 
 warrant is absent 735 
 
 fees 735 
 
 heggars and vagrants, 
 
 to be brought before > .... 736 
 
 to make record of conviction of. . . 736 
 
 where to commit 737 
 
 where to file record • ■ 737 
 
 to arrest persons in disguise 738 
 
 to commit children begging alms. 738 
 
 fees 846 
 
 coroner, 
 
 may act as, when 85G 
 
 depositions to beused in other states, 
 
 when t o take 845 
 
 how to take 845 
 
 may compel witnesses to appear . 845 
 
 fees 846 
 
 disorderly persons, 
 
 when to order arrest of 740 
 
 to bind over, for good behavior . . 742 
 
 to retain recognizance 742 
 
 when to make up record of convic- 
 tion, and commit 743 
 
 duty of, after recovery on recog- 
 nizance of 744 
 
 two, to grant discharge of 744 
 
 disturbance of religious meetings, 
 observance of Sunday, and pro- 
 fane cursing and siJoearing, 
 when to issue warrant for offender 746 
 
 when to issue execution 748 
 
 to file certificate of conviction .... 748 
 
 may convict summarily 749 
 
 when to commit offender.... 750, 754 
 
894 
 
 INDEX. 
 
 Justices of the Peace, Page 
 
 ■when to issue venire 751 
 
 when to convict on their own 
 
 knowledge 754 
 
 fees 755 
 
 dogSf 
 
 to order dangerouSj killed 756 
 
 fees 757 
 
 draining sivampS) 
 
 to issue summons 757 
 
 to attend on return of summons . . 758 
 
 to swear jurors 758 
 
 to file map and inquisition 760 
 
 may summons new jury 760 
 
 fees 760 
 
 excise and taverns, % 
 
 [See Excise andTaverns.'\ 
 
 jtremeni 
 
 and supervisors, to appoint 846 
 
 and fill vacancies 846 
 
 fees 846 
 
 firing of woods, 
 
 to order fires in woods to be extin- 
 guished , 846 
 
 firing of woods, 
 
 fees 847 
 
 forcible entry and detainer, 
 
 powers of, under statute relative 
 
 to 847 
 
 fees 847 
 
 fugitives from justice from other 
 states, 
 
 may arrest 780 
 
 when to commit 780 
 
 to notify district attorney of ar- 
 rest of 782 
 
 and make return to court of ses- 
 sions 782 
 
 gaming and lottery tickets, 
 
 when to issue warrant 785 
 
 when to retain property 785 
 
 fees 786 
 
 habitual drunkards, 
 
 to give notice of application by, 
 
 for a jury 787 
 
 how to conduct trial of 789 
 
 to enter verdict 789 
 
 when to enter judgment against.. 789 
 how to issue execution against . . . 790 
 when to enter judgment in favor of 790 
 how to issue execution on such 
 
 judgment 790 
 
 fees 791 
 
 hawkers and peddlers, 
 
 when to commit 792 
 
 when to convict 793 
 
 when to issue warrant against . . . . 794 
 to whom to pay penalty collected 
 
 from 794 
 
 fees 795 
 
 highways and roads, 
 
 to issue summons against party 
 
 refusing to work 797 
 
 when to impose fine 798 
 
 and issue warrant 798 
 
 not liable to action, ...» 799 
 
 to whom to pay fine 799 
 
 when to issue summons for jury to 
 re-assess damages 800 
 
 Justices of the Peace, 
 
 to draw and swear such jury 801 
 
 to swear witnesses 801 
 
 to certify verdict 802 
 
 form of certificate by 802 
 
 to issue precept for jury, when 
 
 encroachment is denied 805 
 
 not to annex list of jurors to pre- 
 cept 805 
 
 to swear jury and witnesses 806 
 
 when to issue warrant for costs. . . 808 
 
 when to issue second precept 809 
 
 fees , 809 
 
 landlord and tenant, 
 
 to view deserted premises.... 810, 811 
 when to put landlord in possession 812 
 
 to make record 812 
 
 when may remove tenant summa- 
 rily 814 
 
 when to issue summons.. 818 
 
 when to issue warrant 821 
 
 to enter decision in docket 821 
 
 to render j udgment with costs .... 821 
 
 when to summon jury , 824 
 
 how to conduct trial by jury 825 
 
 to enter verdict, issue warrant, &c 825 
 
 fees 831 
 
 limited partnerships, 
 may take acknowledgment of cer- 
 tificates of - 848 
 
 fees 848 
 
 lunatics, 
 
 when to issue warrant for 832 
 
 refusing to confine, to state rea- 
 sons 833 
 
 fees 834 
 
 marriages, 
 
 may solemnize 835 
 
 to ascertain age and identity of 
 
 parties to 836 
 
 to keep registry of 836 
 
 solemaizing, improperly, guilty of 
 
 misdemeanor 836 
 
 to give certificate of 837 
 
 to certify certificates of, by priests 838 
 
 fees 838 
 
 offenders against laics of United 
 States, 
 may arrest, imprison, or bail. .. . 782 
 
 proceedings upon arrest of 783 
 
 when may bail 783 
 
 where to send process and recog- 
 nizances 784 
 
 fees 784 
 
 of sessions, 
 
 how and when chosen 847 
 
 fees 847 
 
 parents absconding, 
 
 to issue warrant to seize property 
 
 of 838 
 
 when to discharge such warrant . . 839 
 form of an order for that purpose. 840 
 
 fees 841 
 
 pawn -brokers, 
 
 when to issue Warrant to search for 
 
 property pledged with 841 
 
 when to deliver property to claim- 
 ant 841 
 
 when to re-deliver property to ... 842 
 
INDEX. 
 
 895 
 
 Justices of the Peace, 
 
 fees 842 
 
 racing, 
 
 to attend and prevent 848 
 
 may arrest and bind over persons 
 
 engaged in 848 
 
 fees 849 
 
 removal of constables, 
 
 power as to 850 
 
 fees 850 
 
 town auditors, 
 
 [See Town Auditors,'\ 
 
 town meetings, 
 
 to preside at 853 
 
 powers while presiding 853 
 
 fees 853 
 
 unclaimed baggage, 
 
 their duty as to 843 
 
 fees 844 
 
 vacancies in town offices, 
 
 three, may fill by warrant gener- 
 ally 853 
 
 number of three, how made up . . . 855 
 to file warrant, and give notice to 
 
 person appointed 854 
 
 three, may accept resignation of 
 
 town ofiieers . . ; 854 
 
 to give notice of such acceptance. 854 
 
 form of such notice * 854 
 
 assessor 854 
 
 collector 855 
 
 commissioner of highways 855 
 
 inspector of election 855 
 
 overseer of the poor 855 
 
 supervisor 856 
 
 KIDNAPPING, 
 
 what is 596 
 
 ' punishment for 596 
 
 LAND COMPANIES, 
 
 papers and field-notes of, evidence 401 
 
 Landlord and Tenant, 
 deserted premises, 
 
 petition, and affidavit of desertion 810 
 
 justice, to view 810 
 
 notice to tenant 811 
 
 justice, to view second time 812 
 
 proceedings to cease, when tenant 
 
 denies rent 812 
 
 landlord, when to be put in pos- 
 session 812 
 
 tenant may appeal 812 
 
 within what time 812 
 
 appeal, how taken 812 
 
 bond on appeal 812 
 
 notice to landlord, of appeal 813 
 
 record of justice S13 
 
 fees 831 
 
 special proceedings for re-entry, 
 
 when allowed - 814 
 
 notice of re-entry, how served... 814 
 
 form of such notice 814 
 
 fees 831 
 
 awmmary proceedings to recover pos- 
 session of demised premises, 
 
 who may remove tenant 814 
 
 when tenant may be removed .... 815 
 
 Page 
 Landlord and Tenant, 
 
 1st — where he holds over, without 
 
 permission 815 
 
 when this statute applies 815 
 
 2d — where he holds over, after de- 
 fault in rent 815 
 
 notice to pay rent, &c. in this case 815 
 
 this notice, how served* 715 
 
 form of notice 816 
 
 demand may be made on tenant in 
 
 possession 816 
 
 3d — where he has taken benefit of 
 
 insolvent act 816 
 
 4th — where he holds over, after 
 
 sale on execution 816 
 
 who may apply for process in this 
 
 case 816 
 
 against whom proceedings in this 
 
 case may be had 8] 6 
 
 who may apply for process in all 
 
 cases 817 
 
 contents of affidavit 817 
 
 its form 817 
 
 summons, when to be issued 818 
 
 when to be made returnable 818 
 
 notice, when tenancy is at will. - . 818 
 summons, to whom to be directed 818 
 summons, under subd. 1, holding 
 
 over ^ 819 
 
 the same, tenancy terminated by 
 
 notice 819 
 
 summons, under subd. 2, non- 
 payment of rent 820 
 
 summons, how served 820 
 
 affidavit of such service 820 
 
 warrant of removal, when to be 
 
 issued 821 
 
 judgment, with costs, to be ren- 
 dered 821 
 
 warrant, under subd. 1, holding 
 
 over 821 
 
 the same, tenancy terminated by 
 
 notice 822 
 
 warrant, under subd. 2, non-pay- 
 ment of rent 822 
 
 return of officer to warrant 823 
 
 premises recovered under subd. 2, 
 
 when to be restored 823 
 
 fees 831 
 
 trial by jury, 
 tenant in possession may demand. 823 
 
 affidavit to obtain 824 
 
 jury, how obtained 824 
 
 precept for jury 824 
 
 six jurors to he drawn 825 
 
 oath to jurors 825 
 
 oath to officer to keep jury 825 
 
 new jury may be summoned 825 
 
 proceedings may be adjourned .. . 825 
 
 warrant when to issue 825 
 
 eflfect of issuing warrant 826 
 
 fees i 831 
 
 staying proceedings, 
 
 when and how effected 826 
 
 bond, under subd. 2 826 
 
 security for rent, when to be given 827 
 
 security, under subd. 3 828 
 
 ^ security under subd. 4 828 
 
896 
 
 INDEX, 
 
 rage 
 Landlord and Tenant, 
 
 affidavit also 828 
 
 form of such security 828 
 
 ceTtiorarij 
 
 tenant may remove proceedings by 828 
 if reversed, tenant can recover 
 
 damages 829 
 
 proceedings not suspended by.... 829 
 appeal to county court, 
 
 bow taken 829 
 
 security on, to pay rent 829 
 
 affidavit for 829 
 
 notice of 830 
 
 copy aSidavit and notice to be 
 
 served 830 
 
 undertaking on 831 
 
 decision on, final 831 
 
 Landlords, 
 
 actions by, for rent 65 
 
 manure belongs to 128 
 
 when rails do not belong to 128 
 
 tenants' possession, their posses- 
 sion 137 
 
 Lands, 
 
 contracts relating to 63 
 
 actions for use and occupation of* 65 
 question of possession of, not one 
 
 of title 246 
 
 [See Real Property.] 
 
 Lansingburgh, 
 
 special sessions in 659 
 
 Larceny, 
 
 complaint for grand and petit .... 541 
 
 warrant for grand and petit 562 
 
 what is grand 596, 618 
 
 punishment for 596, 618 
 
 petit, what is 629 
 
 Laws, 
 
 of other states, how proved 384 
 
 scoretary of state to certify 406 
 
 Leases, 
 
 when required to be written 64 
 
 of unpaid taxes, in villages 407 
 
 [See Evidence, and Sealed Instru- 
 ments.} 
 
 Legislature, 
 
 cannot shorten term of office of 
 
 justices 7 
 
 exemption of members from arrest 176 
 copies papers presented to evidence 401 
 not exempted from criminal arrest 537 
 [See Evidence.] 
 
 Lenox, 
 
 has five justices 4 
 
 jurors in 285 
 
 Letters, 
 
 penalty for sending threatening.. 622 
 of administration, 
 
 by whom issued.. 94 
 
 of attorney, 
 
 evidence 388 
 
 testamentary t 
 
 by whom issued 94 
 
 Levy, 
 
 [Sec ExecutiQU.] 
 
 Lewis County, 
 
 jurors in 285 
 
 Page 
 
 Liability, 
 
 of bailees 57 
 
 of common carriers 59 
 
 of husbands 90 
 
 of parents 91 
 
 of infants 93 
 
 of corporations 96 
 
 of principal, for acts of agent..,. 98 
 
 of agents :. 99 
 
 of partnership firms 104 to 108 
 
 actions upon, when to be commen- 
 ced - 137 
 
 actions upon, when several. 154 
 
 of officers, for escape 178 
 
 of constables, for property attach- 
 ed 183, 186 
 
 of guardian of infant defendant, 
 
 for costs 202 
 
 of surety, on undertaking, on plea 
 
 of title 244 
 
 of constables' sureties 496 
 
 rule as to, of justices 538 
 
 of complainants in criminal cases. 538 
 of justices, for committing prisoner 607 
 
 Libel, 
 
 justices cannot try civil actions for 27 
 
 actions for, abate by death 94 
 
 actions for, when to becommenced 138 
 
 Liens, 
 
 of bailees, for services 60 
 
 duration of, created by attachment 185 
 
 of justices' judgments 455 
 
 [See Mechanics^ Lien^.] 
 
 Limitations, 
 
 of mechanics' liena 130 
 
 evidence to support plea of 422 
 
 statute of, 
 
 construction of .; ...,141 to 145 
 
 computation of time under ...... 142 
 
 as to accounts 143 
 
 must be pleaded 144 
 
 as to promissory notes 144 
 
 Limited Partnerships, 
 
 acknowledgment of certificates of. 848 
 [See Partnerships.] 
 
 Liquidated Damages, 
 
 [See Damages.] 
 
 Liquors, 
 
 penalty for furnishing, to habitual 
 drunkards 787 
 
 Livingston County, 
 
 jurors in 285 
 
 Loans, 
 
 usurious, cannot be recovered back 75 
 commissioners of, 
 
 certificates of evidence 401 
 
 executions against • 476 
 
 Lottery Tickets, 
 
 [See Gammg and Lottery Ticltets.] 
 
 Lower Canada, 
 
 proof of conveyances made in ... . 392 
 
 Lunatic Asylum, 
 
 officers of, exempt from jury duty 287 
 [See lunatics.] 
 
 Lunatics, 
 
 cannot appoint agent 97 
 
 to sue and be sued in their own 
 names • « 204 
 
INDEX. 
 
 897 
 
 Page 
 litlWATICSj 
 
 when infants, must appear by ■ 
 
 guardian 264 
 
 ■when of full age, by attorney.... 204 
 
 iDCompetent as witnesses 369 
 
 committee of, when to send, to 
 
 asylum , 832 
 
 when parents of, to send, to asy- 
 lum S32 
 
 overseers of the poor may collect 
 
 f costs of confining 832 
 
 [ when to be apprehended 832 
 
 overseers of the poor, when to ap- 
 ply for warrant for 832 
 
 contents of such warrant 833 
 
 asylum to be specified in warrant. 833 
 
 insanity of, to be proved ..... 833 
 
 testimony to be written and filed. 833 
 overseers of the poor, to designate 
 
 place of confinement of 833 
 
 warrant to confine 833 
 
 county clerk, to file papers, and 
 
 give certificate * . . • 884 
 
 admission of, to state asylum 834 
 
 fees 834 
 
 MAIL, 
 
 notice of protest may be sent by . . VI 
 
 Malice, 
 
 when presumed S18 
 
 legal meaning of term 319 
 
 Malicious Prosecution, 
 
 justices cannot try civil actions for 27 
 
 Malicious Mischief, 
 
 complaint for 553 
 
 Mandate, • 
 
 definition of term 58 
 
 Manslau€hteb, 
 
 complaint for. 543 
 
 in the first and second degrees. . , 598 
 punisbment of, in the £rst and 
 
 second degrees - 598 
 
 in the third and fourth degrees. . . 619 
 punishment of, in the third and 
 fourtb degrees 620 
 
 Manufacturing Companies, 
 
 certificate of incorporation of, evi- 
 dence 398 
 
 Manure, 
 
 belongs to landlord 128 
 
 belongs to farm 485 
 
 Marine Court, 
 
 is a justice's court...- 12 
 
 number and election of justices of 12 
 
 clerk of 12 
 
 compensation of officers of 12 
 
 powers of 21 
 
 ^ jurisdiction of, 28, 29 
 
 adjournment in, on motion of 
 
 plaintiff 252 
 
 commitments for contempt in ... . 530 
 powers of justices of, as to forci- 
 ble entry and detainer 847 
 
 Marriage, 
 
 contracts in contemplation of 88 
 
 when actions do not abate by 154 
 
 when husband competent to prove 367 
 certificate of, evidence 403 
 
 57 
 
 Pago 
 
 Marriage, 
 
 punishment for seduction 621 
 
 Marriage Certificates, 
 
 justices, to give 837 
 
 contents of 837 
 
 form of 837 
 
 ministers and priests, to give .... 837 
 when certified, may be filed 837 
 
 Marriages, 
 
 justices may solemnize 835 
 
 requisites to validity of 835 
 
 age of consent to 835 
 
 before ago of consent, voidable.. 835 
 consent to, must be voluntary. . . . 836 
 
 consent makes valid 836 
 
 age of parties to, to be ascertained 836 
 registry of, to be kept. ...... . . , , 836 
 
 contents of such registry 836 
 
 solemnization of, improperly, a 
 
 misdemeanor 836 
 
 form of ceremony 836 
 
 certificate of, to be given 837 
 
 form and contents of such certifi- 
 cate 837 
 
 ministers and priests, to certify,. 837 
 when certificates of, may be filed. 837 
 fees 838 
 
 Married Women, 
 civil, 
 
 separate property of 87 
 
 may inherit P? 
 
 may convey and devise 88 
 
 trust estates of 88 
 
 when they may act by agents. . . . 97 
 
 may act as agents 97 
 
 statute of limitations as to 138 
 
 actions by and against 152 
 
 arrest of, on civil process 177 
 
 service of subpoena on 272 
 
 conveyances by, in other states... 395 
 
 promissory notes of 427 
 
 criminal, 
 
 may be required to find sureties 
 
 for appearance 579 
 
 recognizance by sureties for, as 
 
 witness 582 
 
 cannot become sureties 626 
 
 special, 
 
 acknowledgment of conveyances 
 and grants by 687 
 
 Masters, 
 
 [See Apprentices.^ 
 
 Mayhem, 
 
 complaint for 545 
 
 what is 599 
 
 punishment of 599 
 
 Mechanics' Liens, 
 
 for labor and materials ■ ■ • > 129 
 
 owner's liability •-■• 129 
 
 notice to be filed 130 
 
 lien docket 130 
 
 clerk's fee on filing 130 
 
 evidence by lienor 130 
 
 action may be brought 131 
 
 in what court 131 
 
 how commenced. ; 131 
 
 answer, itc. 131 
 
 service on absentees 132 
 
898 
 
 INDEX. 
 
 Page 
 Mechanics' Liens, 
 
 bill of particulars 1 32 
 
 proceedings on default 132 
 
 proceedings on appearance before 
 
 justice 132 
 
 proceedings on appearance in su- 
 preme or county court 133 
 
 costs 134 
 
 transcript of judgment 134 
 
 judgment a lien .,' 134 
 
 notice to present claim 134 
 
 duration of lien 134 
 
 appeals 135 
 
 priority of liens 135 
 
 liens how discharged 135 
 
 in particular counties 129 
 
 Mbmoeandums, 
 
 under statute of frauds 40 
 
 of auction sales 49 
 
 of sales under executions 490 
 
 Mesne Process, 
 
 married women cannot be arrested 
 
 on 177 
 
 Mexico, 
 
 recovery of penalties 121 
 
 ■what coins of, are a legal tender.. 227 
 conveyances by officers and soldiers 
 
 in 392 
 
 Mile-Stones, 
 
 punishment for destroying 631 
 
 Militia, 
 
 when exempted from arrest 177 
 
 when public officers may order 
 
 out 191 
 
 exempted from jury duty 287 
 
 evidence of service in 288 
 
 double costs, when allowed to offi- 
 cers of 466 
 
 security for costs in actions against 
 
 officers of .■ 467 
 
 Militia Officers, 
 
 justices may administer oaths to. . 699 
 Minors, 
 
 [See Infants, and Parents and 
 Children.'\ 
 Minutes op Conviction, 
 
 of defaulting witness 277 
 
 [Sec Conviction, and Certificates^l 
 Misdemeanors, 
 
 justices acting before taking oath 
 
 and filing bond 30 
 
 instituting actions maliciously .... 151 
 
 neglecting to fill up process 159 
 
 arresting females on civil process. 177 
 taking reward, &c., from prisoners, 
 
 &c 179 to 181 
 
 serving process on Saturday, on 
 
 persons observing that day 190 
 
 justices refusing to take affidavit, 208 
 justices buying demands for suit. . 220 
 constables buying demands for suit 220 
 conviction for, does not disqualify 
 
 as witness 360 
 
 giving or soiling liquor to Indians 364 
 
 taking illegal fees 472 
 
 constables taking rewards 490 
 
 justices neglecting to pay over 
 money 497 
 
 Misdemeanors, 
 
 inserting names of prisoner's wit- 
 nesses in people's subpoena 642 
 
 taking illegal fees 680 
 
 taking acknowledgments im- 
 properly 688 
 
 solemnizing marriages improperly 836 
 refusing to extinguish^fire in woods 846 
 [See Commitments, Crimes, and 
 Offences.'] 
 Mistake, 
 
 recovery of money paid under. ... 62 
 Mittimus, 
 
 [See Commitments.] 
 Mob, 
 
 remedy for injuries by 114 
 
 Money, 
 
 actions for, paid, laid out, &C.61, 62 
 recovery of, on illegal contracts.. 62 
 recovery of, paid under mistake.. 62 
 Monroe County, 
 
 jurors in, 285 
 
 juvenile delinquents in, where to 
 
 be sent ; .... 650 
 
 jurisdiction of special sessions in 
 
 633 to 675 
 Month, 
 
 computation of • 524 
 
 Mortgages, 
 
 with notice, not protected 52 
 
 title of articles mortgaged 54 
 
 of chattels 50 
 
 forms for satisfaction of 696, 697 
 
 [See Chattel Mortgages, Convey- 
 ances, and Instruments.] 
 Motion, • 
 
 to strike out irrelevant matter 
 
 211, 213 
 [See Pleadings.] 
 Murder, 
 
 complaints for 541, 542 
 
 statute definition of . . • • 584 
 
 NAVY, 
 
 exenlption of employees in, from 
 
 arrest 177 
 
 Necessaries, 
 
 husband is liable for 90 
 
 when parents liable for 91 
 
 liability of infants for. 93 
 
 evidence of, how rebutted , 422 
 
 New York, 
 
 justices how appointed in colony of 2 
 
 their jurisdiction therein 2, 3 
 
 marine court in 12, 21 
 
 judicial districts in 12 
 
 district courts in 12, 21 
 
 jurisdiction of marine court in. 28, 29 
 
 jurisdiction of district courts in. 29, 30 
 chattel mortgages in, where to be 
 
 filed ; 52 
 
 exemption of firemen in, from 
 
 jury duty 287 
 
 proceedings of common council 
 
 of, evidence 390 
 
 proclamations by mayor of, how 
 
 proved 391 
 
INDEX. 
 
 899 
 
 Page 
 Nett Yokk, 
 
 register of, to certify transcripts 
 
 of records 396 
 
 transcripts of justices' judgments 
 
 in .'.459 
 
 powers of justices in, as to forcible 
 
 entry and detainer 847 
 
 Next Friend,- 
 
 , married women need not appear.. 152 
 NiAQABA County, 
 
 jurors in 285 
 
 Non-Delivery, 
 
 damages in actions for 47 
 
 NoN-llESIDENTS, 
 
 wlien plaintiffs, to give security, 
 
 147, 162, 163 
 process against, when defendants 
 
 164, 168 
 affidavit for short attachment 
 
 against • 171 
 
 Nonsuit, 
 
 on non-appearance of plaintiff. . . . 205 
 in actions on demand bought for 
 
 suit 221 
 
 not a bar to a new action 222 
 
 when to be granted 299 
 
 judgment of, whoQ to be rendered. 453 
 North America, 
 
 proof of conveyances made in.,., 391 
 Notaries Public, 
 
 effect of certificates of 403 
 
 ofScial acts of, how proved. ...... 429 
 
 Notes, 
 
 [See Promissory Notes.'i 
 Notices, 
 
 drawing of justices 6 
 
 civil, 
 of viciousness of domestic animals, 
 
 to be given 117 
 
 of appointment of guardian by 
 
 plaintiff 203 
 
 in actions on demands bought for 
 
 suit 221 
 
 of set-off, to bo given 236 
 
 effect of not giving sueh 237 
 
 of recoupment, to be given ..240, 260 
 of application for a commission.. 262 
 service of, when proved by an affi- 
 davit 263 
 
 civil, 
 
 to party, to be examined 369 
 
 of examination of assignor 372 
 
 affidavit of publication of legal.. 405 
 to produce private writings . 408, 410 
 special, 
 
 of protest 429 
 
 of sale under execution 484 
 
 ^ of appeal • 499 
 
 " to be stamped 501 
 
 of filing undertaking 503 
 
 of argument of appeal, to be given, 606 
 special, 
 
 ■ designating habitual drunkard... 787 
 of application by habitual drunk- 
 ard for a jury • • 788 
 
 to tenant who has deserted premi 
 
 ses ^^^ 
 
 to landlord, of appeal 813 
 
 Page 
 Notices, 
 
 of intention to re-enter demised 
 
 premises 814 
 
 to pay rent, or quit 816 
 
 of appeal, in proceedings to re- 
 move tenant 830 
 
 OATHS, 
 
 justices to take oath of office 9 
 
 form 9 . 
 
 civil, 
 
 constable may adminster, to surety 186 
 of service of notice of application 
 
 for commission 263 
 
 to procure commission 264 
 
 on trial of challenges 292 
 
 to jurors challenged 292 
 
 to triers ; 293 
 
 to jurors 293 
 
 to witnesses 295 
 
 of materiality of witness 297 
 
 to constable, on taking charge of 
 
 jury 301 
 
 criminal, 
 
 to complainant and witnesses .... 539 
 
 to jurors 642 
 
 to witnesses, on trial 643 
 
 to constable, on retiring with jury, 645 
 special, 
 
 to subscribing witness to convey- 
 ance, &,a 697 
 
 to witness proving identity of 
 parties, or of witness, to a con- 
 veyance 697 
 
 justices may administer 698 
 
 form of, to town officers 698 
 
 to a deponent 699 
 
 to jurors, on proceedings to drain 
 
 swamps 758 
 
 to jurors, on trials of habitual 
 
 drunkards 789 
 
 to witnesses on such trials 789 
 
 to jurors, on re-assessment of 
 
 highway damages 801 
 
 to witnesses, in like cases 801 
 
 to jurors, when encroachment is 
 
 denied 806 
 
 to witnesses, in like cases 806 
 
 to jurors, on trials between land- 
 lord and tenant 825 
 
 to officer, to keep ' jury, in such 
 
 case 825 
 
 justices may administer, to arbi- 
 trators 845 
 
 Observance of Sunday, 
 
 offender to be bronght before a jus- 
 tice 746 
 
 warrant for that purpose 746 
 
 record of conviction, to be made up, 747 
 
 conviction, final 747 
 
 when proceedings may be institut- 
 ed 748 
 
 execution to collect penalty and 
 
 costs 748 
 
 certificate of conviction, to be filed, 748 
 
 form of such certificate 749 
 
 statute concerning 752 
 
 warrant to seize goods forfeited . . 753 
 
900 
 
 INDEX. 
 
 Pago 
 Observance op Sunday, 
 
 liquor, not to be sold on Sunday. , 753 
 penalty for selling liquor on Sun- 
 day 753 
 
 fees 755 
 
 Offences, 
 
 punishment for attempt to commit, 
 
 588, 610 
 punishment for compounding .... 612 
 [See CriineSi and Compromise 
 of Offences, '\ 
 Office, 
 
 infants, ineligible to 94 
 
 Ogden Company, 
 
 papers and field-notes of, evidence 401 
 Orange County, 
 
 fees of justices of sessions in . > . • 848 
 Orleans County, 
 
 jurors in 285 
 
 Oswego, 
 
 two justices in 4 
 
 mechanics'* liens in 128 
 
 special Sessions in 657 
 
 Overseers of Highways, 
 
 vacancy in office of, how filled ... . 855 
 Overseers of the Poor, 
 
 when execution to issue against . . 474 
 
 may bind out apprentices 701 
 
 where to deposit copy of indentures 702 
 vacancy in office of, how filled. . . » 855 
 [See Bastards, Habitual 
 Drunkards, Hawkers and 
 Pedlers, Highways and 
 Roads, Lunatics, and Parents 
 Absconding.] 
 Oyer and Terminer, 
 
 jurisdiction of , 581 
 
 PARENTS, 
 
 [See Lunatics,"] 
 Parents Absconbing, 
 
 property of, of bastards, may be 
 
 seized 732 
 
 warrant for that purpose 733, 
 
 property of, when to be seized, . . . 733: 
 form of warrant to seize property of 733 
 overseers of the poor may take 
 
 property of * . . . . 732 
 
 sales by, after warrant issued, void, 732 
 overseers of the poor to return in- 
 ventory to court of sessions .... 732 
 when entitled to property seized.. 733 
 
 to give -security 733 
 
 form of such security 733 
 
 fees 73fi 
 
 Parents and Children, 
 
 statute requires former, to main- 
 tain latter « 91 
 
 necessaries 91, 
 
 step -fathers 92 
 
 step-children 92 
 
 Parol Evidence, 
 
 [See Evidence.] 
 Parol Contracts, 
 
 [See Contracts.] 
 Parties, 
 
 jurisdiction not conferred by con- 
 sent of 20 
 
 Page 
 Parties, 
 
 jurisdiction of, how acquired 20 
 
 actions cognizable byjustJces when 
 
 people are 27 
 
 residence of, to give jurisdiction, 34 
 
 both, must be privy to usury 75 
 
 character of, must be stated in 
 
 process 157 
 
 may defend in person 202 
 
 rights of, to due bills 228 
 
 may adjourn cause beyond ninety 
 
 days ..-. . 257 
 
 may waive regularity of adjourn- 
 ment 200 
 
 may agree upon interrogatories,.. 265 
 form of assent by, to interroga- 
 tories 267 
 
 may try their own causes 279 
 
 may prove death or absence of 
 
 subscribing witness 294 
 
 may poll the jury 305 
 
 identity of, presumed from identity 
 
 of names - 314 
 
 admissions by 344 
 
 competent as witnesses 365 
 
 in interest, competent as witnesses, 365 
 
 examination of 367 
 
 may prove loss of instruments...- 408 
 may prove death or absence of sub- 
 scribing witness 413 
 
 hand-writing of, how proved 413 
 
 Partners, 
 
 who may be 103 
 
 what constitutes 104 
 
 powers of individual 104 
 
 notes given by ■ 104 
 
 partnership of, how dissolved 106 
 
 powers of, after dissolution 106 
 
 acknowledgment by one of several, 
 
 106, 345 
 
 powers of surviving 106 
 
 payment by one 106 
 
 actions between 106 
 
 evidence of partnership - 106 
 
 entries in. books of 106 
 
 rights of between themselves .... 107 
 payment by one, after dissolution, 107 
 
 general and special 108 
 
 set-off of note of, against firm. . . • 239 
 
 justices cannot have 280 
 
 Partnership, 
 
 definition of 103 
 
 who may enter into 1 04 
 
 how formed 104 
 
 what constitutes 104 
 
 how dissolved 106 
 
 efi'ect of dissolution of 107 
 
 evidence of 107 
 
 property of, how applied 107 
 
 limited, how formed 108 :> 
 
 transaction of business by limited, 109 
 once shown, presumed to continue, 323 
 
 evidence of 423 
 
 Pawn, 
 
 definition of term 53 
 
 [See Pledges.] 
 Pawn -Brokers, 
 
 warrant, when to issue against . . . 841 
 
INDEX. 
 
 901 
 
 Page 
 Pawn-Bbokees, 
 
 powers of constable under such 
 
 warrant 841 
 
 claimant executing bond, entitled 
 
 to property 841 
 
 form of such bond 842 
 
 property, when to be re-delivered 
 
 to 842 
 
 fees 842 
 
 Payee, 
 
 definition of term 66 
 
 where to endorse name 66 
 
 [See Promissory iVoies.] 
 Patjient, 
 
 actions not maintainable for vol- 
 untary 62 
 
 rule as to application of 73 
 
 by note of third person 77, 425 
 
 by debtor's note 77, 425 
 
 in bank bills 77 
 
 of judgments for penalties 124 
 
 effect of partial, by one of several 
 
 joint debtors 144 
 
 demand of, on chattel notes 204 
 
 in forged paper or base coin 227 
 
 in worthless bank hills 227 
 
 in counterfeit bank notes 227 
 
 of due bills 228 
 
 by defendant, in actions on bonds, 232 
 
 of money into court 232 
 
 evidence of 424 
 
 Peace, 
 
 [See Surety of the Peace.'\ 
 Fedlebs, 
 
 [See Hawkers and Pedlers.'X 
 Penalties, 
 
 venue, in actions for, given to 
 
 towns 24 
 
 actions for, in justices' courts .... 26 
 husband liable for, incurred by 
 
 wife 90 
 
 actions for 119 
 
 actions for, for cutting down trees, 119 
 
 recovered, where to be paid 121 
 
 venue, in actions to recover 122 
 
 given to any person who will sue . . 122 
 actions for, when commenced .... 122 
 
 compromise of actions for 122 
 
 endorsement of process in actions 
 
 for ;.... 122 
 
 pleadings in actions for 123 
 
 imposed by by-laws of corporation, 123 
 cannot be raised by implication . . 124 
 
 one, for one offence 124 
 
 double or treble, how found 124 
 
 when moiety given to people 124 
 
 jurors in actions for 124, 288 
 
 statute of limitations as to 138 
 
 of bonds for attached property. . . 185 
 for selling liquor to apprentices.. 764 
 for -selling liquor to habitual 
 
 drunkards 787 
 
 for peddling goods without license, 792 
 for not showing pedler's license . . 792 
 
 for obstructing highways 803 
 
 for injuring highways 803 
 
 for obstructing water courses, &c . 803 
 for not remoTiug fences 804 
 
 Page 
 Penalties, 
 
 for refusing to extinguish fire in 
 
 woods 846 
 
 Pebjuby, 
 
 conviction for, disqualifies as wit- 
 ness 361 
 
 complaint for 552 
 
 what is 599 
 
 punishment of 599 
 
 punishment of subornation of ... . 600 
 punishment of attempts to induce, 610 
 Pebsonal Pboperty, 
 
 venue in actions for, distrained . . 34 
 
 actions for injuries to 114 
 
 plaintiff must have possession, or a 
 
 right thereto 115 
 
 examples of actionable injuries 
 
 to 114 to 118 
 
 statute of limitations as to actions 
 
 for 137 
 
 possession of, evidence of title. %. 319 
 
 admissions by vendors of 343 
 
 Personal Representatives, 
 
 [See Administrators and Executors.'\ 
 Persons, 
 
 actions for injuries to IIQ 
 
 such actions, when to be com- 
 menced 133 
 
 Peb0, 
 
 what coins of, a legal tender 227 
 
 Petit Larceny, 
 
 complaint for 540 
 
 warrant for 562 
 
 what is 629 
 
 no accessories in 629 
 
 [See Executions. '\ 
 Philadelphia, 
 
 proof of conveyances made in ... . 392 
 Physicians, 
 
 communications to, when privi- 
 leged 353 
 
 [See Manslaughter. 1 
 Place of Trial, 
 
 actions for injuries to real property 34 
 actions for personal property dis- 
 trained 34 
 
 penalties 34 
 
 actions against public of&cers .... 34 
 Plaintiffs, 
 
 residence of, to give jurisdiction . 34 
 non-resident, to give security 147, 102 
 may conduct action in person .... 152 
 
 guardians for infant '. 162 
 
 who may be 1 54 
 
 warrant in favor of non-resident, 103 
 to be notified of defendant's arrest, 162 
 to elect between warrant and sum- 
 mons. 162 
 
 bond and affidavit by, for attach- 
 ment ...;. 164 to 168 
 
 when entitled t^ short attachment, 168 
 may take out summons after at- 
 tachment.. 187 
 
 appointment by, of guardian for 
 
 infant defendant 202, 203 
 
 requiring testimony of justice, 
 
 must discontinue 208 
 
 to prove case 217 
 
902 
 
 INDEX. 
 
 Page 
 Plaintiffs, 
 
 witness, in actions on domands 
 
 bought for suit 220 
 
 entitled to amount tendered 231 
 
 recovering less than tender, to pay 
 
 costs 231 to 233 
 
 entitled to money paid into court. 233 
 
 set-off hy defendants against 233 
 
 notice of set-off to be given to . . . 236 
 
 judgment for, on set-off 236 
 
 undertaking to be given to, on 
 
 plea of title 244 
 
 questioning title 244 
 
 adjournment on motion of. 249 
 
 when entitled to commission, with- 
 out notice 262 
 
 statement of action by, to jury. .. 293 
 
 introduction of evidence by 294 
 
 examination of witnesses for 298 
 
 when to be non-suited 299, 453 
 
 to be called to receive verdict. . . . 305 
 may remit excess of verdict. . 305, 454 
 
 may be called to prove usury 364 
 
 and that demand was bought for 
 
 suit 365 
 
 joint, must prove joint contract.. 418 
 
 must be free from fault 115, 444 
 
 judgment for, after trial 453 
 
 costs of, recovering double or tre- 
 ble damages 466 
 
 when to give security for costs.. . , 467 
 evidence bi/, 
 
 in actions on contract 417 
 
 in actions against common carriers 418 
 
 in proof of damages 420 
 
 to avoid defence of infancy 422 
 
 pleading iitatute of limitations... 422 
 
 of partnership 423 
 
 in answer to plea of payment 424 
 
 in actions on promissory notes ... . 425 
 
 to avoid a plea of tender 432 
 
 in actions of trespass 433 
 
 in aoiions of trespass on the case. 435 
 
 in actions of trover 436 
 
 Plank-Road Companies, 
 
 copy articUs of association of, evi- 
 
 dence^-'^'v-. 399 
 
 transfer book's of, evidence 405 
 
 Pleadings, 
 
 in actions for penalties. . . . 119 to 123 
 in actions by and against public 
 
 officers 145 
 
 character of parties, to be stated 
 
 in 157 
 
 when to be made 209 
 
 object of 210 
 
 different kinds of 210 
 
 may be oral or in writing 210 
 
 construction of 211 
 
 judgments, bow to be stated in. . . 211 
 performance of conditions prece- 
 dent, how to be stated in 211 
 
 private statutes, how to be stated 
 
 in 212 
 
 no repjy in justices' courts 217 
 
 when pleadings may be amended, 
 
 218, 300 
 
 Page 
 Pleadings, 
 
 effect of variance between, and 
 
 proof 330 
 
 [See Amendments, Aniwer, Com- 
 plaint, and Jjemurrer. 
 Plea op Title, 
 
 not a bar to action for obstructing 
 
 road 803 
 
 Pleas, 
 civil, 
 
 in abatement, abolished 158 
 
 to jurisdiction, when and how 
 
 made 220 
 
 to jurisdiction, when deemed 
 
 waived 220 
 
 of former action 222 
 
 of payment 222 
 
 of tender 223 
 
 of title 243 
 
 criminal, 
 
 to the jurisdiction, 
 
 when proper ; . . . 637 
 
 form of. , .*. . . 637 
 
 in abatement, 
 
 when proper ^ 638 
 
 sbould be verified 638 
 
 form of 638 
 
 special, in har, 
 
 goes to the merits 639 
 
 what are good as 639 
 
 pleading over, after 639 
 
 form of 639 
 
 [See Payment, Pleading, Tender, 
 and Title to Real Property.'] 
 Pledge, 
 
 definition of term 58 
 
 difference between, and chattel 
 
 mortgage 60 
 
 title to, in debtor 60 
 
 must be delivered 61 
 
 wben to be redeemed. 61 
 
 Poison, 
 
 punishment for administering, to 
 
 animals 585, 630 
 
 punishment for selling, without 
 
 labels 630 
 
 Poisoning, 
 
 complaints for, food and wells .... 547 
 punishment of, food and wells .... 600 
 punishment for, cattle 620 
 
 POMFRET, 
 
 number of justices in 4 
 
 Police Justices, 
 
 jurisdiction of, generally exclusive 4 
 
 POOE-HODSES, 
 
 keepers of, exempt from jury duty 287 
 Posse Comitaths, 
 
 when it may be ordered out 191 
 
 Potsdam, 
 
 has five justices I 
 
 POCQHKBEPSIE, 
 
 special sessions in 658 
 
 Powers, 
 
 of agents, cannot be delegated ... 98 
 Pbestimptions, 
 
 in favor of public offioers 314 
 
 [See Evidence.} 
 
INDEX, 
 
 903 
 
 Pago 
 PeincipalSj 
 
 may act by agents 97 
 
 how 97 
 
 Tvhen bound by acts of agents 98 to 103 
 
 must express dissent 101 
 
 agents to account to 101 
 
 when not bound by acts of agents. 103 
 when Ijound by declarations of 
 
 agents 336 
 
 admissions of, against surety..,. 348 
 agents, competent as witness 
 
 against 367 
 
 [See Agejits.'\ 
 Peinters, 
 
 affidavits by, of publication 405 
 
 Prisoner, 
 civil J 
 
 rights of, under civil process 181 
 
 maybe conveyed through different 
 
 counties 181 
 
 criminal, 
 
 when and where to be searched. . ,- 534 
 
 escaping^ may be re-arrested 565 
 
 not liable to arrest on civil process 669 
 disposition of,'while awaiting ex- 
 amination 571 
 
 may be committed for further ex- 
 amination 571 
 
 may employ counsel 573 
 
 may cross-examine witnesses 674 
 
 statute authorizing examination of 674 
 
 may decline answering 574 
 
 when he need not be examined. . . 575 
 
 when he must be examined 575 
 
 not to be examined on oath 576 
 
 answers of, to be written down. . , 576 
 
 should be kept separate 576 
 
 witnesses for, to be sworn and ex- 
 amined ••.. 577 
 
 forms of examination of 577 
 
 may be committed for contempt;. 678 
 
 when to be discharged 679 
 
 punishment for aidingj to escape.. 685 
 to what prison to be. committed. . . 602 
 may be detained to prepare ' mit- 
 timus 603 
 
 may demand copy mittimus ...... 607 
 
 may be discharged on giving bail, 
 
 607, 627 
 
 when may be bailed 609 to 623 
 
 may waive examination 625 
 
 warrant to liberate 628 
 
 may pay fine to sheriff 649 
 
 may apply to county court to remit 
 
 fine.:.. 649 
 
 £See Bail, Commitments, and 
 Judgments.} 
 Private.Writings, ' . 
 [See Evidence*} 
 
 pROOBSSj 
 
 civil, 
 jurisdiction acquired by service of 21 
 where it may be issued by justices 
 
 21, 33 
 of justices, how served and re- 
 turned ' 21 
 
 ' of justices, when void. 22 
 
 officer serving) when protected 26, 190 
 
 Pago 
 Process, 
 
 when and how to be endorsed .... 122 
 service of, in actions for penalties 123 
 guardians, to be appointed before 
 
 issuing 162 
 
 actions, how commenced without , 156 
 
 different kinds of 156 
 
 long summons 166 
 
 character of parties, to be stated 
 
 in ..'. 157 
 
 of justices, to be signed 168 
 
 but need not be sealed 1 69 
 
 to be in name of people 169 
 
 to be in English : . . . . > 169 
 
 not to be made returnable on Sun- 
 day 160 
 
 nor to be issued on that day 160 
 
 of the service and return of 173 
 
 married women, cannot be arrest- 
 ed on mesne 177 
 
 what is mesne 1 78 
 
 not to be executed on Sunday.... 190 
 service of, on Jews and Seventh 
 
 Day Baptists 190 
 
 not to be served on election day. . 190 
 
 copy of, to be given 191 
 
 return on. 191 
 
 substituted service 191 
 
 criminal, 
 
 not necessary, for violation of 
 
 Sunday 524 
 
 issuing of, a ministerial act 536 
 
 when it is regular on its face 663 
 
 special, 
 
 officers bound to execnte 683 
 
 in actions under excise law, to be 
 
 endorsed 764 
 
 and in actions for obstructing high- 
 ways....,., 803 
 
 [See Attachments, Sumrkons, Sub' 
 pccnas and Warrants.} 
 Profane Cursing and Swearing, 
 offenders to be brought before a 
 
 justice 746 
 
 warrant for that purpose 745 
 
 record of conviction for, to be 
 
 made up 747 
 
 conviction, final 747 
 
 when proceedings must be insti- 
 tuted 747 
 
 execution to collect penalty and 
 
 costs 748 
 
 certificate of conviction to be filed 748 
 
 form of such certificate 749 
 
 penalty for 753 
 
 committed in the presence of a 
 
 justice' b 754 
 
 offender, when to be committed... 754 
 
 warrant of arrest for 754 
 
 security for payment of penalty , 
 
 ' and costs 764 
 
 warrant of commitment for 765 
 
 fees i. '755 
 
 Profits, 
 
 contingent, not recove^rable .as 
 
 damages 443 
 
 when recoverable 443 
 
904 
 
 INDEX. 
 
 ^^ 
 
 3 
 
 Page 
 
 PROMTSEj 
 
 to avoid statute of limitations, 
 
 142, 144 
 pROirissonY Notes, 
 
 what are 65 
 
 negotiable and non-negotiable. ... 65 
 
 endorsementof 65 
 
 effect of taking non-negotiable ... B5 
 of any kind, may be transferred. . 65 
 
 transfer of, how made 65 
 
 need not be dated •.. . . 67 
 
 necessity of *' value received" in. 67 
 
 import a consideration. 67 
 
 days of grace on 67 
 
 falling due on Sunday 67 
 
 falling due on fast days, &c 67 
 
 consideration of, when inquirable 
 
 into 67 
 
 properly in, evidenced by posses- 
 sion 68 
 
 owners of lost, can recover 68 
 
 void in inception, remain void. . . . 68 
 failure of consideration of, may be 
 
 shown 68 
 
 and that under a general denial . . 68 
 
 purchased at less than face 68 
 
 founded on illegal contracts 68 
 
 all makers, principals as to holders 69 
 construction of "security," in... 69 
 
 contract of makers of , 6-9 
 
 contract of endorsers of 69 
 
 joint or several 69 
 
 "I promise,'' several 69 
 
 construction of ** jointly or seve- 
 rally," in 70 
 
 construction of "suroty," in 70 
 
 demand of payment of, when 
 
 . necessary 70 
 
 notice of non-payment of, to be 
 
 given 70 
 
 how and by whom notice may be 
 
 given 71 
 
 evidence in actions on 71 
 
 Interest on, how computed 72 
 
 guaranty of 72 
 
 actions against guarantors of ... . 72 
 rule of construction of guaranties 
 
 of 72 
 
 application of payments of 73 
 
 examples of, not void for usury. . . 74 
 accommodation makers may set up 
 
 usury in 76 
 
 payment by, of third persons . . 77, 425 
 payment by debtor's own.,., 77, 425 
 statute of limitations as to.. 143^ 144 
 
 not to be bought for suit 220 
 
 endorser may demand, on tender. 225 
 when due, when time not men- 
 tioned 229 
 
 payable on demand, when due . . . 229 
 
 set-off, in actions on 234 
 
 ee^-QS, of partner's, against firm 239 
 
 admissions of makers of 344 
 
 parol evidence, to vary terms of.. 365 
 cannot be taken on exeoution .... 485 
 evidence in actions on, 
 
 the existence of the note 426 
 
 ts loss.... t 426 
 
 Page 
 
 Pkomissory Notes, 
 
 the signature of the parties ■•••• • 427 
 evidence in actions on, 
 
 the relation of the defendant 427 
 
 note of married women 427 
 
 intereet of plaintiff in 427 
 
 the breach of contract* > • 428 
 
 demand and protest ,.«... .'>,.... 429 
 notice of demand and of non-pay- 
 ment 429 
 
 against guarantors 431 
 
 of want of consideration 431 
 
 of usury 432 
 
 Proof, 
 
 necessary to sustain chattel mort- 
 gage 60 
 
 in actions for goods sold 63 
 
 in actions for non-delivery of pro- 
 perty 63 
 
 [See Burden of Proof j and Evi- 
 de-nce.l 
 
 Protest, 
 
 [See Notaries Public and Promis- 
 sory Notes-I 
 
 Protisiows, 
 
 warranty and sale of 56 
 
 Public Docdmehts, 
 
 [See Evidence."] 
 
 Public Officers, 
 
 venue in actions against 35 
 
 may sue and be sued in justices' 
 
 courts 145 
 
 pleadings in actions by and against 145 
 actions against successors of 146, 155 
 actions do not abate by death of. . 155 
 actions, how commenced against.. 156 
 when to order out posse comitatus 191 
 
 presumptions in favor of 311 
 
 rule of evidence as to authority of 333 
 
 Purchaser, 
 
 acceptance by, necessary 48 
 
 caveat emptor^ applicable to 55 
 
 when accidents at risk of 63 
 
 when entitled to possession 63 
 
 Putnam County, 
 
 mechanics' liens in 129 
 
 QUALITY, 
 
 warranty of 66 
 
 Quo Warranto, 
 
 justice's titleto ofBcemay bec[ues-» 
 tioned by 10 
 
 RAcrsra, 
 
 when punishable by 630, 633 
 
 statute forbidding 848 
 
 peaoe officers, to attend and pre- 
 vent 848 
 
 justices may order apprehension of 
 
 persons engaged in 843 
 
 form of warrant for that purpose. 849 
 persons engaged in, to be recog- 
 nized 849 
 
 form of recognizance - 849 
 
 fees.' 849 
 
 Rail-Road Companies, 
 
 are private corporations 96 
 
 cattle trespassing upon roads of., 118 
 
INDEX 
 
 905 
 
 Kail-Road Companies, 
 
 may be sued by long summons . . . 159 
 copies articles association of, evi- 
 dence 399 
 
 punishment for injuries to roads of 618 
 Bafe, 
 
 presumption of inability to commit 317 
 
 complaints for 544 
 
 punishment for 600 
 
 Real Estate, 
 
 [See Real Property.] 
 Real Peopertt, 
 
 justices cannot try title to . . . .27, 243 
 venue in actions for injuries to . . . 34 
 requisites of authority to convey. 98 
 
 actions for injuries to 110 
 
 -what is a trespass upon.... 110 to 113 
 
 owners of, possess highway Ill 
 
 examples of trespasses upon 112 
 
 what are fixtures 125 
 
 actions for, when to be oommen- 
 
 .ced..... 136, 1.S7 
 
 death does not affect rights to ... . 137 
 actions for trespass on, when to be 
 
 commenced 137 
 
 right of way in 246 
 
 declarations of persons in posses- 
 sion of 339 
 
 certificates of redemption of, evi- 
 dence.....' 406 
 
 when justice's judgment a lien upon 455 
 Receipt, 
 
 for property attached 186 
 
 may be explained by parol evi- 
 dence 351, 424 
 
 [See Evidence.] 
 Kbceiptor, 
 
 for property attached 186 
 
 EECEiviNa Peoperty Embezzled, 
 
 punishment for 620 
 
 Recognizances, 
 
 of complainant and witnesses, wlien 
 
 to be taken 579 
 
 to be certified to proper court 579, 583 
 form of, by witness, to give evi- 
 dence 582 
 
 by witness, with sureties 582 
 
 by sureties, for infant witness, &c 582 
 on appeals from judgments of 
 
 courts of special sessions 671 
 
 to keep the peace 674 
 
 by master, on complaint of ap- 
 prentice 712 
 
 by apprentice, on complaint of 
 
 master 713 
 
 by disorderly persons 741 
 
 by persons engaged in racing .... 849 
 
 on certiorari 671 
 
 [See Bail.] 
 Records, 
 
 to be in English 1 59 
 
 Copies of, evidence 400 
 
 punishment for stealing 598 
 
 Records of CoSViction, 
 
 of defaulting witness 277 
 
 for contempt of court 528 
 
 cannot be questioned in collateral 
 action ...... i * 536 
 
 Pago 
 Records of Conviction, 
 
 beggars and vagrants 737 
 
 disorderly persons 742 
 
 observance of Sunday 747 
 
 disturbing religious meetings ..... 747 
 profane cursing and swearing .... 747 
 [See Bonds, and Undertaking^.] 
 
 Recoupment, y 
 
 meaning of term 240 
 
 notice of, to be given 240 
 
 in what actions allowed 240 j 
 
 instead of cross action 240 
 
 defendant, not entitled to balance 
 
 on 241 
 
 of damages, after action brought. 241 
 cases in which it has been allowed 242 
 
 Redemption, 
 
 of pledges 60 
 
 certificate of, of real estate, evi- 
 dence 406 
 
 Relationship, 
 
 judgments void, on account of . . . . 22 
 what degree of, disqualifies 23 
 
 Relief, 
 
 actions for, on the ground of fraud, 
 
 when to be commenced 138 
 
 actions for, when to be commenced 139 
 
 Religiotts Meetings, 
 
 complaint for disturbing 555 
 
 [See Disturbance of Religious 
 Meetings.] 
 
 Renewing Executions, 
 
 [See Executions.] 
 
 Rensselaer County, 
 
 special sessions in 658 
 
 Rent, 
 
 actions for... ' 65 
 
 recoupment in actions for 242 
 
 [See Landlord and 7'cnant.] 
 
 Reply, 
 
 in actions for penalties 1 23 
 
 not allowed in justices' courts. . . • 217 
 [See Pleadings.] 
 
 Respondent, 
 
 [See Appeal.] 
 
 Returns, 
 
 on summons 174 
 
 on warrant 181 
 
 on attachment 187 
 
 on attachment, conclusive 188 
 
 on subpoena 273 
 
 on execution 496 
 
 fee for justices', on appeal 499 
 
 form thereof 504 
 
 on appeal from judgmentof special 
 
 sessions 670 
 
 on summons for collection of high- 
 way fines 798 
 
 on warrant to remove tenant 823 
 
 [See Certiorari.] 
 
 Revised Statutes, 
 
 evidence 406 
 
 Right op Way, 
 
 is real property 246 
 
 Riots, 
 
 remedy for injuries by 114 
 
 justices may suppress 525 
 
906 
 
 INDEX. 
 
 Page 
 Riots, 
 
 rioters may be arrested without 
 
 process 525 
 
 complaint for 554 
 
 [See Special Sessions,] 
 Roads, 
 
 injuries occasioned by neglect of., 97 
 [See Highways and Roads.} 
 Robbery, 
 
 complaint for 551 
 
 in the first degree 600 
 
 in the second degree 600 
 
 punishment for, in both degrees.. 601 
 
 ROCHESTEH, 
 
 three justices in 4 
 
 special sessions in 660 
 
 Rockland County, 
 
 mechanics' liens in 128 
 
 Routs, 
 
 [See Riots-I 
 Russia, 
 
 proof of conveyances made in .... 392 
 
 SALES, 
 
 by auctioneers 50 
 
 of chattels 50 
 
 by sample « 56 
 
 of grass, fruit, &c 64 
 
 [Seo Vendor, and Vendee.] 
 
 Salt Manufactories, 
 
 exemption of employees in, from 
 jury duty 287 
 
 Sample, 
 
 sales by 56 
 
 Saratoga Springs, 
 
 special sessions in 660 
 
 Saturday, 
 
 when civil process not to be served 
 on 190 
 
 Schenectady, 
 
 four justices in 4 
 
 Schodack, 
 
 has live justices 4 
 
 Scire Facias, 
 
 abolished 459 
 
 Sealed Instruments, 
 
 actions on, when to be commenced 138 
 [See Bonds and Undertakings.] 
 
 Seals, 
 
 import a consideration 42, 45 
 
 agents, when to be appointed un- 
 der 98 
 
 partners cannot bind each other by 106 
 public, and of notaries public, ju- 
 dicially noticed'. . . : 308, 309 
 
 what are 309 
 
 only presumptive evidence of con- 
 sideration 358 
 
 what, judicially noticed 385 
 
 of corporations, may be on paper, 400 
 
 Searching Prisoner, 
 
 when and by whom 534 
 
 Search Warrants, 
 
 when to be issued 531 
 
 when to authorize search in night 
 
 ) time 531 
 
 must be executed by an officer . . . 531 
 contents of • 632 
 
 Page 
 Search Warrants, 
 
 complaint to obtain 532 
 
 form of 63:'. 
 
 execution of 533 
 
 disposition of goods on return of. . 534 
 Second Offences, 
 
 punishment for 601, 620 
 
 Secretary or State, 
 
 certificate of, as to authority of 
 commissioners of deeds in other 
 
 states 394 
 
 copies deeds in office of, may be 
 
 recorded 397 
 
 copies papers in office of, evidence 404 
 
 to certify laws 406 
 
 Security, 
 
 tainted with usury, void 73 
 
 to procure warrant 162 
 
 to stay execution, on appeal 502 
 
 for costs, 
 
 in actions against militia officers. 467 
 
 statute as to 467 
 
 [See Bonds, and Undertakings.] 
 Seduction, 
 
 justices cannot try actions for. . . . 27 
 punishment of, under promise of 
 
 marriage 621 
 
 Service, 
 
 of summons 172 
 
 of warrant 175 
 
 of attachment 181 
 
 substituted 191 
 
 [See Executions and Subpmnas.] 
 Set-ofp, 
 
 by purchaser against principal . . , 101 
 
 general remarks concerning 233 
 
 what demands are good as 234 
 
 statute concerning 233 to 236 
 
 against judgments on attachments 236 
 
 notice of, to be given 236 
 
 judgment on 237 
 
 in actions by personal representa- 
 tives 237 
 
 actions on demands which should 
 
 have been used as 237 
 
 in actions for tort 238 
 
 in actions for breach of warranty . 238 
 against personal representatives. . 238 
 against firm, of partner's note .... 239 
 
 general rules concerning 239 
 
 recoupment analogous to 240 
 
 [See Recoupment.] 
 Seventh Day Baptists, 
 
 when process not to be served on. 190 
 
 when exempt from jury duty 287 
 
 Severing Produce, 
 
 punishment for 621, 623 
 
 Sheriffs, 
 
 liable for money collected on exe- 
 cution 62 
 
 actions against, when to be com- 
 
 menoed 139 
 
 when admissions of deputy bind. . 346 
 liability of, for refusing to dis- 
 charge prisoner 495 
 
 [See Constahle.] 
 Shooting, 
 
 complaint for 546 
 
INDEX. 
 
 907 
 
 Shop-Books, 
 
 admissibility of, in evidence 413 
 
 proof, when entries were made by 
 
 clerk 4U 
 
 proof, when entries were made by 
 
 parties 414 
 
 what they are not evidenoe of.... 414 
 party not allowed to swear to.... 414 
 
 all, must be produced 415 
 
 Short- Attachment, 
 
 [See Attachment.'] 
 Snfa Sing Guards, 
 
 exempted from jury duty 287 
 
 SeAN£AT£LES, 
 
 number of justices in 4 
 
 Slander, 
 
 J justices cannot try actions for. . . . 27 
 
 aptions for, abate by death 95 
 
 actions for, when to be commenced 138 
 
 Sluices, 
 
 penalty for obstructing or diverting 803 
 
 Smithfield, 
 
 jurors in. 285 
 
 Sodomy, 
 
 ; whatis , 601 
 
 punishment for 602 
 
 South America, 
 
 proof of conveyances made in .... 391 
 
 Special Proceedings, 
 
 how continued before different jus- 
 tice 684 
 
 Special Sessions, 
 
 to be held by a single magistrate. 629 
 minutes of proceedings in, to be 
 
 kept .646 
 
 jurisdiction of, 
 
 petit larceny charged as first of- 
 fence 629 
 
 assault and battery 629 
 
 poisoning, and cruelly beating, 
 
 animals 630 
 
 racing animals 630 
 
 severing produce, and willful tres- 
 pass 630 
 
 selling poisons without labels.... 630 
 
 cutting down monuments, <&c 631 
 
 destroying milestones, &c 631 
 
 destroying toll -bridges, Ac 631 
 
 intoxication of conductor 632 
 
 setting up lotteries 632 
 
 running horses 632 
 
 violations of excise laws 632 
 
 illegal voting 632 
 
 making slung shot 682 
 
 ■disclosure of indictment 632 
 
 injuring mill-dam 632 
 
 injuring telegraph 632 
 
 counterfeiting trademark 632 
 
 malicious trespass 632 
 
 injuring canal 632 
 
 defacing &o., marks 633 
 
 letting fires in woods, &e 633 
 
 defacing logging marks 633 
 
 running horses 633 
 
 racing near courts 633 
 
 cruelty to animals 633 
 
 cheating at games 633 
 
 gambling ^33 
 
 Page 
 Special Sessions, 
 
 setlingliquor in court-house or jail 633 
 moving property, to defraud cred- 
 itors 634 
 
 selling liquor to Indians 634 
 
 trials int 
 
 when to take place 635 
 
 disposition of prisoner awaiting.. 635 
 order to bring up prisoner for .... 636 
 charge, to be stated to prisoner.. 637 
 pleas by prisoner on .... ^ .. 637 to 639 
 prisoner's plea, to be entered in 
 
 minutes 637 
 
 by the justice, when 639 
 
 by a jury, when 640 
 
 formal management of, before a 
 
 jury 640 to 646 
 
 rules of evidence applicable to .. . 643 
 
 general rules applicable to 645 
 
 proceedings subsequent to the trial, 
 what punishment may be awarded 646 
 prisoner acquitted, to be discharged 646 
 certificateof conviction, to be made 647 
 contents and form of such certifi- 
 cate 647 
 
 such certificate, evidence 647 
 
 fines, how applied 648 
 
 defendant, if acquitted, not to pay 
 
 fees 648 
 
 judgment of court, how executed 
 
 648, 649 
 warrant of commitment, to whom 
 
 directed 648 
 
 its form 648 
 
 juvenile delinquents, where to be 
 
 sent 649 
 
 judgment when complaint was ma- 
 licious 650 
 
 reversal of judgments of 665 
 
 in particular localities, 
 
 Albany 651 
 
 Brooklyn 656 
 
 Oswego 657 
 
 Poughkeepsie 658 
 
 Bensselaer 658 
 
 Eochester 660 
 
 Saratoga Springs 660 
 
 TJtica 660 
 
 Watertown 661 
 
 Watervliet 662 
 
 Williamsburgh 663 
 
 [See Judgments.'] 
 Specialty, 
 
 what is a 37 
 
 [See Evidence.] 
 Spirituous Liquors, 
 
 lawfulness of sale of, presumed . . 78 
 Stamp, 
 
 on summons when 160, 164 
 
 on notice of appeal 501 
 
 State, 
 
 civil divisions of this, judicially 
 
 noticed 384 
 
 State Prisons, 
 
 officers of, exempt from jury duty 287 
 
 penalty for escaping from 615 
 
 [See Eail.] 
 
908 
 
 INDEX, 
 
 Btatttte of ^Frauds, Page 
 
 contracts void by 40, 64 
 
 evidence required by 353 
 
 Statute of Limitations, 
 
 [See Limitations.'] 
 
 Statutes, 
 
 priva te, how pleaded 212 
 
 complaint in actions for violating. 213 
 [See Evidence.] 
 
 Stealing Recouds, 
 
 punishment for ....> 622 
 
 'itep-FatherSj 
 
 rights and liabilities of 92 
 
 iTEUBEN County, 
 
 jurors in 285 
 
 JT. Lawrence County, 
 
 jurors in 285 
 
 Stockholders, 
 
 competent as witnesses 366 
 
 Stolen Property, 
 
 duty of justices as to 535 
 
 complaint for receiving 552 
 
 Subornation of Perjury, 
 
 what is 599 
 
 punishment of 599 
 
 Subpcenas, 
 civil, 
 
 of justices, run to adjoining coun- 
 ties 35, 261, 270 
 
 form of 2/0 
 
 justices, when to issue 270 
 
 duces tecum, 271 
 
 service of 271 
 
 evidence of service of 272 
 
 return of constable on. 272 
 
 criminal, 
 
 memorandum to be endorsed on . . 642 
 penalty for inserting names in, 
 
 wrongfully 642 
 
 how many can be charged for , . , , 642 
 
 form of 643 
 
 special, 
 
 in a case of bastardy . . . , 720 
 
 Subscribing Witness, 
 
 to endorsement of notes 66 
 
 proof of death of 294 
 
 must be called 331, 411 
 
 evidence, when they are dead or 
 
 absent 331 
 
 rule as to, in justices' courts ..... 331 
 
 proof of instruments by i 411 
 
 when they need not be called .... 412 
 parties may prove death or absence 
 
 of 413 
 
 proof of handwriting of 413 
 
 denying execution of instrument. 413 
 
 Summons, 
 civil, 
 
 effect of *'and over" iii 32 
 
 to issue to county of justice. 35 
 
 actions commenced by service and 
 
 delivery of 139, 156 
 
 to whom directed 157 
 
 contents of 157 
 
 to express character of parties. . . 157 
 to be stamped, when ........ 1 60, 164 
 
 need not express cause of action.. 157 
 when defendants may disregard.. 157 
 to be filled, up 159 
 
 Summons, 
 
 to be under seal or without seal. . 159 
 
 to be signed by justice 159 
 
 to be in name of people 159 
 
 to be in English' 159 
 
 against joint debtors in different 
 
 counties 159 
 
 claiming over $100 158 
 
 defendant suable by fictitious 
 
 name in 158 
 
 how served on corporations. -. .... 173 
 
 forms of returns on 174 
 
 may be taken out after attachment 
 
 182-188 
 on claim of personal property.... 197 
 
 return of constable .' 199, 200 
 
 justice to wait one hour after re- 
 turn of 205 
 
 adjournments on 248 
 
 long, 
 
 first process against freeholders . . 156 
 against railroad companies ....... 159 
 
 when to be made returnable 1 59 
 
 time on, how computed...... 160, 173 
 
 service of 173 
 
 adjournments on 248 
 
 short, 
 
 non-residents to give security for. 162 
 
 when proper process 163 
 
 statute authorizing 163 
 
 when to issue without security . . . 164 
 
 when to be made returnable 164 
 
 computation of time on 164, 173 
 
 service of 173 
 
 adjournment on 251 
 
 special, 
 
 for refusing to work on highways. 797 
 for a jury to re-assess highway 
 
 damages 801 
 
 [See Draining in Swamps and Ex- 
 cise, Taverns, Landlord and 
 Tenant, and Process.] 
 Sunday, 
 
 what days esteemed as * . . . . 67 
 
 contracts made on 80 
 
 last day for performance of con- 
 tract, on 80 
 
 last day prescribed by statute, on 80 
 
 work performed on 80 
 
 awards published on 80 
 
 acts on, forbidden by statute 81 
 
 actions for horses hired on 81 
 
 when to be computed. ...163, 164, 173 
 civil process, not to be made re- 
 turnable on 160 
 
 nor to be issued on 160 
 
 nor to be executed on 190 
 
 arrests on, after escape 190 
 
 courts, not to be open on -. . . 305 
 
 verdict, may be received on. .305, 645 
 
 jury maybe discharged on 305 
 
 judgment, not to be entered on. . . 305 
 process not necessary, for violation 
 
 of 524 
 
 courts to be adjourned over 645 
 
 [See Observance qf Sunday.] 
 Superintendents op Common Schools, 
 executions against 475 
 
INDEX. 
 
 909 
 
 Superintendents of the Poor, 
 
 executions against 475 
 
 ijiay bind out apprentices 701 
 
 vhere to deposit copy indentures. 702 
 [See Bastards. '\ 
 
 grPERTISOESj 
 
 boards of, formerly nominated jus- 
 tices 3 
 
 togivenoticeof drawing of justices 5, 8 
 to make certificates of such draw- 
 ing 6 
 
 justices may resign to 11 
 
 may sue and be sued in justices' 
 
 courts > • 145 
 
 actions against counties, to be 
 
 brought against 147 
 
 actions against successors ot. .147, 155 
 
 actions do not abate by death of . . 1 55 
 
 actions, how commenced against.. 156 
 
 executions against 475 
 
 to sue for dog penalties 756 
 
 and justices, to appoint firemen . . 8^6 
 
 and fill vacancies 846 
 
 Tacancy in office of, how filled . , , 855 
 [See Excise and Taverns.^ 
 SUppl"emental Complaint, 
 
 to continue action 154 
 
 Supreme Coubt, 
 
 may remove justices 11 
 
 to assign cause for so doing 11 
 
 jurisdiction of, under mechanics' 
 
 lien law. 131 to 133 
 
 action in, after plea of title. 243 to 247 
 justices cannot take ■ acknowledg- 
 ment of bail in 6S6 
 
 [See Courts.'\ ^ 
 Soeeties, 
 
 on bonds for attached property. . . 183 
 
 such, to be approved 183 
 
 liability of, on bondson plea of title 244 
 admissions of principal, receivable 
 
 against 348 
 
 liability of constable's 496, 497 
 
 Surety- OF the Peace, 
 
 how obtained 671 
 
 complaint to be in writing 673 
 
 who may demand 673 
 
 complaint, to obtain 673 
 
 warrant, when to issue 673 
 
 prisoner, to be interrogated 674 
 
 prisoner, when to be recognized. . 674 
 
 form of recognizance by 674 
 
 prisoner, when to be committed . . 675 
 
 form of such commitment 675 
 
 prisoner, when to be discharged. . 675 
 
 warrant to discharge 676 
 
 when court may require 676 
 
 Surgeons, 
 
 communications to, when privi- 
 leged • 353 
 
 Surplusage, 
 
 what comprehended by the term. 326 
 
 evidence as to. Inadmissible 326 
 
 examples of 326 
 
 Surrogates, 
 
 to issue letters 94 
 
 SCRVIVOHSHIP, 
 
 presumptions of 314 
 
 Page 
 Sworn Copies, 
 
 what are 385 
 
 Syracuse, 
 
 three justices in 4 
 
 recovery of penalties 119 
 
 competency of justices, witnesses, 
 &a 286 
 
 TAVERNS, 
 
 [See Excise and Taverns.'] 
 
 Taxes, 
 
 certificates of unpaid, evidence... 407 
 leases for unpaid, in villages, evi- 
 dence 407 
 
 Telegraph Companies, 
 
 copies certificates of incorporation 
 of, evidence 396 
 
 Tenants, 
 
 implied contracts of 37 
 
 rights of, as to fixtures 129, 126. 
 
 what maybe removed by them 126, 127 
 manure does not belong to them. . 128 
 
 when rails do 128 
 
 when, may mortgage grass 128 
 
 possession bv, deemed that of land- 
 lords ...". 137 
 
 cannot deny landlord's title 316 
 
 [See Landlord and Tenant.] 
 
 Tender, 
 
 effect of, after default on mortgage 55 
 
 by pawnor 60 
 
 must be averred in answer 223 
 
 in what, may be made 223 
 
 of portable and cumbrous articles. 224 
 
 equivalent to performance 224 
 
 a question for the jury 225 
 
 debtor discharged by 225 
 
 of specific actions, to be uncondi- 
 tional 225 
 
 who may make 225 
 
 what is a good tender 225 
 
 of money 225 
 
 must be unqualified 226 
 
 what is a legal tender 227 
 
 of bank notes 227 
 
 creditors refusing, to bear loss . . . 227 
 
 where to be made 228 
 
 at what time to be made 229 
 
 to whom to he made 230 
 
 consequences of, and refusal 230 
 
 to be kept good 230 
 
 costs on recovery beyond 230 
 
 plaintiff entitled to 231 
 
 after action brought 231 
 
 statute applicable to such 231 
 
 by payment of moneyinto court.. 232 
 evidence of « 232 
 
 Territorial Jurisdiction, 
 
 of justices 34 
 
 of United States' courts 783 
 
 Threatening Letters, 
 
 punishment for sending 622 
 
 Time, 
 
 computation of 160, 164, 167, 173 
 
 Title, 
 
 to things mortgaged, in mortgagee 55 
 warranted, by vendor of chattels.. 55 
 
910 
 
 INDEX. 
 
 Page 
 Title, 
 
 tenant cannot deny lessor's 316 
 
 to property levied on, how deter- 
 mined 486, 487 
 
 to real property, 
 justices have no jurisdiction of, 
 
 27j 243 
 
 plea of 243 
 
 answer containing, to be written., 243 
 
 form of answer setting out 243 
 
 undertalEing on 244 
 
 costs in such case 244 
 
 when disputed by defendant 245 
 
 ' new action, when title is set up.. 245 
 examples, where title comes in 
 
 questiou 246, 247 
 
 plea of, not a bar to action for 
 
 obs fcructing highway 803 
 
 Torts, 
 
 joint liability for 112 
 
 set-off, in actions for ,.. 238 
 
 Town Auditors, 
 
 board of, how composed 850 
 
 when to meet 851 
 
 to make two certificates 851 
 
 to whom to deliver certificates .... 851 
 not to audit accounts, unless veri- 
 fied 851 
 
 chairman of, may administer oaths 851 
 
 to make abstract of accounts 851 
 
 to whom to deliver abstracts 851 
 
 certificate by 852 
 
 affidavit, to attach to account.... 852 
 
 form of abstact by 852 
 
 fees 853 
 
 Town Clerks, 
 
 notice of drawing of justices, to be 
 
 given to 6 
 
 to record certificates of such draw- 
 ing 6 
 
 to keep mechanics' lien docket... 130 
 
 their fees, fur entries therein 130 
 
 certified copies papers in office of, 
 
 evidence 407 
 
 justices, when to deliver papers to 464 
 
 when to demand such papers 464 
 
 fees of, under highway act 810 
 
 Town Meetings, 
 
 justices to be elected at 4 
 
 clerks of, to certify such elections 5 
 
 and to notify justices elected 5 
 
 presiding officers of, to determine 
 
 such election 8 
 
 justices, to preside at 853 
 
 powers, while so doing 853 
 
 fees 853 
 
 Town Officers, 
 
 justices may administer oaths to.. 698 
 [See Town Offices.] 
 Town Offices, 
 
 vacances in, how filled 853 
 
 Towns, 
 
 number of justices in, limited,... 3 
 
 election of justices in now 5 
 
 justices must reside in 21, 34 
 
 actions for penalties given to, 
 
 where to be tried 24 
 
 actions by and against officers of. . 36 
 
 Page 
 Towns, 
 
 actions by and against 97 
 
 officers of, may sue and be sued in 
 
 justices' courts 145 
 
 actions against, bow brought. .. . 147 
 
 actions again&t, how commenced.. 156 
 vetiirey in actions between. ...... 282 
 
 executions against officers of, .... 476 
 
 firemen in, how appointed 846 
 
 officers of, when allowed per diem 
 
 compensation 851 
 
 Transcripts, 
 
 of judgments of courts in New 
 
 York, may be filed 31 
 
 of judgments under mechanics' 
 
 lien law * 134 
 
 [See Evidence, and Judgments.] 
 Treason, 
 
 what constitutes 585 
 
 [See Crimes.] 
 Treble Costs, 
 
 [See Costs,] 
 
 TREES) 
 
 eontraots for sale of 64 
 
 actions for cutting down 119 
 
 go to the heir 123 
 
 complaint for girdling 553 
 
 Trespass, 
 
 wilful, by agents 101 
 
 u Don real property 110 
 
 defence in actions for, by eattle.. 110 
 
 who may maintain ........ 110 to 113 
 
 obstruction of. lights not a Ill 
 
 defence in actions for 112 
 
 damages^or, on lands 112 
 
 by cattle 118 
 
 actions for, when to te commenced 133 
 
 tender in actions for 231 
 
 evidence inactions for, on the case 435 
 
 evidence in actions for, generally. 433 
 
 levying on property of str^ngep. . 487 
 
 complaint for malicious ■ 553 
 
 what is a wilful. 630 
 
 Trespassers, 
 
 minors acting as officers 94 
 
 agents 102 
 
 who are, upon real property. 110, 112 
 
 ab initio 112 
 
 corporations liable as 112 
 
 justices issuing attachments with- 
 out proof 170 
 
 justices, not having jurisdiction.. 260 
 
 constables, arresting wrong person 564 
 [See Trespass.] 
 
 Trial, 
 
 what is 279 
 
 by jury, when to be demanded . . . 280 
 
 general rules as to, by justice ... . 280 
 
 by jury 282 
 
 [See Judgments, Special Sessions, 
 and Venire.] 
 
 Triers, 
 
 challenge to favor, decided by ... . 292 
 
 who may be 293 
 
 oath to 293 
 
 Trover, 
 
 evidence in ^ 436 
 
INDEX. 
 
 911 
 
 Tkot, Page 
 
 justices' courts in 13, 21 
 
 Trustees, 
 
 set-off, when plaintiff is 235 
 
 of express trusts, 
 
 actions hj 151 
 
 qf gospel and school lots, 
 
 actions by and agaiDSt 146 
 
 executions ag;iinst 475 
 
 qf absconding debtor^ 
 
 appointmeut of, evidence 407 
 
 q/" school-districts, 
 
 actions by and against 146 
 
 executions against 475 
 
 Trusts, 
 
 actions by trustees of express.... 151 
 Turnpike Companies, 
 
 are private corporations 96 
 
 copy articles association of, evi- 
 dence 399 
 
 . tranfer books of^ evidence 4U5 
 
 ULSTER, 
 
 recovery of penalties 121 
 
 Unclaimed Baggage, 
 
 duty of proprietors of conveyances, 
 
 as to 843 
 
 . dnty of justices, as to 843 
 
 fees 844 
 
 Undertaking, 
 
 on claim of personal property. . . . 198 
 for return of personal property. , . 20C 
 
 on plea of title 244. 
 
 form of, in such cases 244 
 
 justice, to approve such 244 
 
 to stay execution on appeal 508 to 511 
 
 United States, 
 
 jurisdiction of justices in 2 
 
 offenders agaiTist laws of, 
 justices may arrest, imprison, or 
 
 bail 783 
 
 proceedings upon arrest of 783 
 
 when justices may bail 783 
 
 process and recognizances, where 
 
 to be sent........ 784 
 
 [See Circuit Courts, and District 
 Courts.} 
 
 Upper Caijada, 
 
 proof of conveyauces made in. . . . 392 
 
 Usage, 
 
 evidence of 359 
 
 [SeQ Evidence.} 
 
 Use and Occupation, 
 
 actions-for, of lands 65 
 
 Usury, 
 
 promissory notes void for 68 
 
 statute concerning 73 
 
 criterion to detect 75 
 
 recovery on executed contracts 
 
 void for ... , 76 
 
 subsequent agreements can not 
 
 create 76 
 
 when maker of note may set up, . , 76 
 both parties must be cognizant of, 76 
 plaintiff, may be called to prove . . 364 
 witnesses to prove, in notes 432 
 
 Utica, 
 
 four justices in 4 
 
 epecial sessions in. 660 
 
 VACANCY, 
 
 election of justices to fill 9 
 
 how occasioned, in office of justice 
 
 10, 11 
 in town offices generally, how filled 853 
 in office of assessor, how filled .... 853 
 in office of collector, how filled... 855 
 in office of commissioner of high- 
 ways, how filled 855 
 
 in office of overseer of highways, 
 
 how filled 855 
 
 in office of inspector of elections, 
 
 how filled '. 855 
 
 in office of overseer of the poor, 
 
 how filled 855 
 
 in office of supervisor, how filled. . 856 
 Vagrants, 
 
 [Bee Beggars and Vagrants.} 
 Value, 
 
 false assertions as to 84 
 
 Variance, 
 
 to be disregarded ^ 306 
 
 judgment for, when not to be given 306 
 effect of, between proof and plead- 
 ings 330 
 
 Vekdee, 
 
 definition of word 39 
 
 must return goods, to recover price 56 
 
 Vendor, 
 
 definition of word 39 
 
 of chattels, warrants title 55 
 
 rights of, to stop in transitu 63 
 
 admissions by, of personal property 348 
 Venire, 
 
 civil, 
 
 when to be issued 282, 290 
 
 Id actions between towns 282 
 
 how executed 283, 284 
 
 costs on 284 
 
 when jury disagree 304 
 
 costs on, abide event 465 
 
 criminal, 
 
 contents of 640 
 
 form of. ' 640 
 
 service of. 641 
 
 special, 
 
 disturbance of religious meetings 750 
 
 draining swamps 758 
 
 habitual drunkards 788 
 
 re-assessment of highway damages 800 
 removal of encroachments from 
 
 highways 805 
 
 removal of a tenant 824 
 
 [See Jurors, and Jury.} 
 
 T^PWUE 
 
 [See Place of Trial.} 
 Verdict, 
 
 when conclusive 222 
 
 for amount tendered 231 
 
 justices, to enter in docket 304 
 
 may be received on Sunday 305 
 
 when final 305 
 
 how delivered 305 
 
 examples of various ■ 306 
 
 judgment to be rendered after. . . . 455 
 of fact, of habitual drunkenness, is 
 
 presumptive evidence * 789 
 
 [See Highways and Roads.} 
 
912 
 
 INDEX, 
 
 Page ' 
 
 Vernon, 
 
 jurors in town of 285 
 
 Villages, 
 
 certificate of incorporation of .... 407 
 
 leases for unpaid taxes, in 407 
 
 oortifioates by clcrlta of 407 
 
 Vindictive Damages, 
 
 [See Dainages.'\ 
 
 Violating Graves, 
 
 punishment for 622 
 
 Voluntary Payment, 
 
 actions not maintainable for 62 
 
 "WARRANT OF COMMITMENT, 
 
 [See Commitments, and War- 
 rants. 1 
 Warrants, 
 civil, 
 
 to issue to county of justice 3i 
 
 to detain canal boats, when to issne 124 
 actions commenced by arrest un- 
 der 156 
 
 defendant may be sued by ficti- 
 tious name , 158 
 
 to be filled up 159 
 
 need not be sealed 159 
 
 to be signed by justice 159 
 
 to be in name of people 159 
 
 to be in English 159 
 
 when to be issued 160 
 
 affidavit for 161 
 
 security, when to be given for.... 162 
 
 to whom directed 162 
 
 contents of 162 
 
 actions, when continued by 163 
 
 void, when summons is the regular 
 
 process 163 
 
 wben to be made returnable 164 
 
 service of < . . . . 174 
 
 officer need not show 175 
 
 but should state substance 175 
 
 special deputy must show 175 
 
 exemptions from arrest under, 
 
 176 to 178 
 
 is mesne process 178 
 
 civil, 
 
 constable to make return on 181 
 
 return on 181 
 
 proceedings on return of... 207 to 209 
 
 adjournment on, by Justice 248 
 
 adjournment on, by plaintiff 249 
 
 adjournment on, by defendant . .. 250 
 to commit witness refusing to tes- 
 tify ' 297 
 
 criminal, 
 
 command of justice, when good as, 525 
 
 of arrest for contempt 527 
 
 of commitment for contempt ..... 629 
 
 when to bo issued 556 
 
 remarks an to contents of 556 
 
 how to be made returnable, 558 to 561 
 
 to whom to be directed 561 
 
 forms of 561, 562 
 
 service of 563 
 
 backing 567 
 
 to whom to bo delivered after arrest 670 
 of commitment for further exami- 
 nation ^73 I 
 
 Page 
 Warbants, 
 
 of commitment of witness 580 
 
 to liberate prisoner 628 
 
 of commitment of prisoner, to 
 
 await trial 636 
 
 of commitment from special ses- 
 sions > 648 
 
 special, 
 
 to arrest apprentice 707 
 
 to apprehend reputed father of a 
 
 bastard 716 
 
 to commit a putative father 725 
 
 to commit mother refusing to dis- 
 close name of father 726 
 
 to commit mother who has property 
 
 in her own right 729 
 
 to discharge putative father * . . . . 731 
 to seize property of absconding 
 
 father 733 
 
 to commit a beggar or a vagrant. . 738 
 
 to arrest a person in disguise 739 
 
 to commit a child to the county 
 
 poorbouse 739 
 
 to arrest a disorderly person ...... 741 
 
 to commit a disorderly person 743, 744 
 of arrest, for disturbance of reli- 
 gious meetings 746 
 
 of commitment, for the same .... 751 
 to seize goods exposed for sale on 
 
 Sunday 753 
 
 of arrest, for profanity 754 
 
 of commitment, for the same .... 755 
 to commit a fugitive from justice, 781 
 to commit a hawker or peJler re- 
 fusing to pay penalty, Ac 793 
 
 to collect penalty from a hawker or 
 
 pedler 794 
 
 to collect a highway fine 799 
 
 to collect costs of proceedings upon 
 
 an encroachment.... 80S 
 
 to put landlord in possession. .821, 822 
 
 to confine a lunatic 833 
 
 to seize goods of an absconding 
 
 parent or husband 839 
 
 to arrest persons engaged in racing 849 
 [See Commitments and Search 
 Wan'ttnts."] 
 Warranty, 
 
 implied, of title to chattels 55 
 
 of quality 66 
 
 not implied, as to latent defects.* 56 
 
 actions for breach of 56 
 
 that residue is like si^mple 66 
 
 of wholesomoness of provisions... 67 
 
 when to be made 67 
 
 language constituting 67 
 
 '*not afraid to warrant" 57 
 
 by agents 100 
 
 no set-off in actions for breach of, 238 
 
 damages for breach of 446 
 
 Water Courses, 
 
 penalty for obstructing 803 
 
 Watertown, 
 
 special sessions in « 661 
 
 Watervliet, 
 
 special sessions in 662 
 
 Westchester County, 
 
 mechanics' lieus in ; , , 123 
 
INDEX. 
 
 913 
 
 Page' 
 WniiAT. 
 
 may be sold by parol 1 28 
 
 Wife, 
 
 [See Husband and Wi/e,and Mar- \ 
 Hed Women.'] 
 WiLFDii Thespass, , 
 
 . what is a 63 
 
 WlLLIAMSBURGII, 
 
 four justices in 4 
 
 special sessions in 66'3 
 
 Ti^iLi.s', 
 
 originals, record^, and exemplifi- 
 cations of, evidence ' ZST, 407 
 
 Witnesses, 
 ciml, 
 subscribitig, to endorsement of note 6fi 
 
 exempted from arrest 177 
 
 justices cannot be, before them- 
 selves 203 
 
 justices, for defendants 208 
 
 justices, for ]^laintiffs 208 
 
 plaintiffs, in demands bought for 
 
 suit 220 
 
 refusing to testify or be sworn .... 251 
 examination of, by commission 
 
 261 to 270 
 when to produce books and papers 271 
 
 service of subpa?na on 272 
 
 fees of 271 
 
 attachments against 272 
 
 duty of, as to obeying subpoena. . . 276 
 damages recoverable from default- 
 ing 277 
 
 punishment of, for non-attend- 
 
 anoe, &c 275 to 279 
 
 oath to, on trials of challenges. .. 292 
 evidence of death, 'or absence of. . 294 
 incompetency of, how determined, 294 
 
 in jail, how brought out 294 
 
 swearing 295 
 
 punishment of, refusing to testify, 296 
 
 oath to materiality of 297 
 
 examination of plaihtiff'B, when . . 298 
 examination of defendant's, when 300 
 
 testimony of deceased 340 
 
 attorneys, cannot be, against client 352 
 
 when Infants competent as 360 
 
 examination of parties as 367 
 
 examination of assignor as 372 
 
 justices in adjoining States, to 
 
 prove docket 387 
 
 to prove uSury in notes 432 
 
 feesdf 470 
 
 criminal, 
 not exempt from arrest for crimes, 537 
 
 oath to, on complaint 639 
 
 testimony of, to be in writing 673, 577 
 of prisoner, to be sworn and ex- 
 amined. 677 
 
 should be kept separate 577 
 
 may be bound over 579 
 
 infants and married women may be 
 
 bound over as 679 
 
 and when in default, may be com- 
 mitted 679 
 
 form of recognizance by 682 
 
 not entitled to fees '. . • 642 
 
 oath to. ••• 6*3 
 
 58 
 
 Page 
 Witnesses, 
 special, 
 
 in cases of bastardy , 71 9 
 
 fees of, in such cases i 736 
 
 fees tff, in proceedings against 
 
 beggars imd vagrant.^ ..,....,.. 740 
 fees of, in pnieeodings against 
 
 disorderly persons, 745 
 
 in ijictions to recover property 
 pawned, Ac, for liquol".^. . .... 776 
 
 on trials' of habitual drunkai'ds. . . 789 
 
 oath to, in such cases 789 
 
 fees of, in such cases 792 
 
 oath to, on re -assessment of high- 
 way damages 801 
 
 oath to, when encroaehment is 
 
 denied 806 
 
 fees of, in proceedings against 
 
 lunaties 834 
 
 justices, may compel, to attend 
 
 before arbitrators 845 
 
 special, 
 
 may be compelled to give deposi- 
 tions to be used in other States, 845 
 
 fees of, for such depositions 846 
 
 persons excluded as, by statute, SfC, 
 
 idiots, lunatics, and madmen 360 
 
 infants, when 360 
 
 persons intoxicated 360 
 
 persons convicted of perjury and 
 
 felony 360 
 
 husbands and wives 361 
 
 persons insensible to the obliga- 
 tions of an oath 362 
 
 persons rendered competent as, by 
 special statute, 
 
 corporators 363 
 
 Indians, for themselves 364 
 
 owners of lost baggage 364 
 
 plaintiff, where defence is usury.. 364 
 plaintiff, where demand was bought 
 
 for suit 365 
 
 parties to actions '. 365 
 
 parties in interest. ,'■, 366 
 
 mode of examining, 
 
 privilege of witnesses - . 372 
 
 direct examination, 
 
 cannot be asked leading questions 374 
 
 exceptions to this rule 375 
 
 refreshing memory of 375 
 
 cannot be asked opinion 376 
 
 exceptions to this rule 376 
 
 cannot bo impeached by party 
 
 calling 377 
 
 nor discredited by him, by evi- 
 dence of different statements. . . 377 
 cross-examination , 
 
 great latitude allowed on 378 
 
 when not allowed 378 
 
 questions not to be asked on 378 
 
 foundation to be laid on, for im- 
 peaching 378 
 
 leading questions permitted 379 
 
 as to contents of letters 379 
 
 when memory of, has been re- 
 freshed 379 
 
 impeaehment, 
 
 by evidence of general character. 380 
 
914 
 
 INDEX. 
 
 Page 
 Witnesses, 
 
 proper qacBtions to be asked 380 
 
 by evidence of different statements 381 
 attention of witness must bave 
 been called to former statement, 
 
 379, 381 
 re-direct examination^ 
 
 object of 381 
 
 sustaining impeached, 
 
 by evidence of general character. 382 
 
 proper questions to be asked 383 
 
 Wbitten Insteumbhts, 
 
 [See Instruments.'] 
 
 Page 
 Wkosbs, 
 
 liability of husband for, committed 
 
 by wife ®0 
 
 liability of infant for 84 
 
 actions for, by personal represen- 
 tatives 04 
 
 set-off, in actions for 238 
 
 damages, in actions for 443 
 
 YEAE, 
 
 computation of 524 
 
 YONKEBS, 
 
 recovery of penalties 121 
 
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