QJnrnfU ICaui ^rljnnl ICibrary I University Library ivr irO.J52 1852 The new clerk's assistant .or, Book of 3 1924 022 834 802 W \4 Cornell University VB 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/cu31924022834802 SEVENTEENTH THOUSAND THE NEW. CLEKK'S ASSISTANT, OR BOOK OF PEACTICAL FORMS; GONTAINING NUMEROUS PRECEDENTS AND FORMS FOR ORDINARY BURINESS TRANSACTIONS, WITH REFERENCES TO THE VARIOUS STATUTES, AND LATEST JUDICIAL DECISIONS; DESIGNKD FOR THE USE OF COUNTY AND TOWN OFFICERS, MERCHANTS, MECHANICS, FARMERS, AND PROFESSIONAL MEN. TO WHICH IS ADDED AN APPENDIX, OONTAININO THE NEW CONSTITUTION OF THE STATE OP NEW YORK. BY JOHN S. J_ENKINS, GOUNSBLLOR AT LAW. FOURTH EDITION, REVISED AND ENLARGED. AUBURN: DERBY AND MILLER. 1852. Entered according to Act of Congress, in the year 1 850, by DERB,Y AND MILLER, In the CJerk'B Office for the Northern District of New York. JEWETT, THOMAS & 00., STEREOTYPBRSf BUFFALO, N. T. PEEFACE TO THE FOURTH EDITION, The object originally had in view, in the preparation of this work, was, to provide a practical form book for business men, — one that should be full and complete, and yet simple and clear in its arrange- ment, and easily imderstood. It has already passed through three large editions, and the publishers have been at length compelled to stereotype it, in order to enable them to supply the demand. It is but reasonable, therefore, to infer, that the public approve of the plan of the work and of its execution. To County and Town Officers of every g-rade, — ^to business men of all classes, — to the farmer, the mechanic, and the merchant, — ^this book is believed to be a useful and reliable guide and director, as well in the discharge of the public duties that may devolve on them,- as in the management of their own private affairs. The Chapters on Auctions, Banks and Corporations, Fees of Officers, Homestead Ex- emption, Mechanics' and Laborers' Lien, Plank Roads, Supervisors, Taxes, Town Auditors and Town Houses, — and the references to the Statutes and legal decisions, — are new features in a work of this cha- racter. A considerable amount of information, and a great number of forms, are also contained in each one of the different divisions, which are not to be found in any other work or publication. No more changes have been made in this edition than were abso IV PEBrAos. lately necessary. It has been the constant aim of the author and publishers, to hare the book conform, in all respects, to the Laws of the State as existing at the time of the publication of each edition. This has been a leading and peculiar feature of the work. It is pos- sible that some might deem it still more valuable, if it could remain permanent; but a moment's reflection wiU serve to convince them, that its highest and greatest usefulness must depend on its keeping up with the modifications and changes that may, from time to time, be made. New Chapters, — on the Exemption of the Homestead of a family from sale on execution. Plank Roads, and the Duties of Supervi- sors, — have been inserted in this edition. The third edition of the Revised Statutes having now come into general use, the references herein contained apply to the paging and section numbers of that edition, It may be proper further to state, lest any one not familiar with the plan of the work may be led iato error, that the words in the forms, in Italic letter, contained in brackets, are designed to be merely directory, and those in Ro- man are alone to be inserted, where any variation is proper or ne- cessary. Auburn, September 1, 1850. GENERAL CONTENTS. CHAPTER I. p^ Acknowledgment and Proof of Deeds, Mortgages, and other In- struments. — Certificates of Discharge and Satisfaction, .... 9 CHAPTER n. Agreements and Contracts, 28 CHAPTER HI. Apprentices and Servants, 46 CHAPTER IV. Arbitration and Award, 63 CHAPTER V. Assignments, 72 CHAPTER VI. Auctions, 80 CHAPTER VIL Banks and Corporations, 98 CHAPTER VIIL Bills of Exchange and Promissory Notes, 102 CHAPTER IX. Bills of Sale and Chattel Mortgages, 118 CHAPTER X. Bonds 121 Vi GENERAL CONTENTS. CHAPTEE XL Clerks and Criers, 132 CHAPTER XIL Conveyances by Deed and Mortgage, 149 CHAPTER Xin. Coroners 188 CHAPTER XIV. Covenants 198 CHAPTER XV. Debtor and Creditor 203 CHAPTER XVL Dower, 222 CHAPTER XVII. Excise, 230 CHAPTER XVHL Fees of Officers, 236 CHAPTER XIX Fence Viewe] On this first day of May, &c., before me personally came A. B., and Mary his wife, to me known to be the individuals described in, and who executed the within conveyance, and acknowledged that they executed the same ; and the said Mary acknowledged, on a private examination by me made, apart from her husband, that she executed the said conveyance freely, and without any fear or com- pulsion of him. C. D., Commissioner of Deeds in and for said county. § 4. By Husband and Wife — proven to the Officer. County, ss : On this first day of May, &c., before me personally came A. B., and Mary his wife, both proven to me satisfactorily to be the same persons described in, and who executed the within conveyance, by 1 If a conveyance or instrument is proved or acknowledged in ihis State, but to be Uf^ed or recorded in anntlier State, the name of the State should be inserted in the heading of the certificate, as well as that of the county. 2 If the person by whose oath the identity is established, is not a subscribing witness, the words in italic, in the above and subse- quent forms must, be omitted. ACKNOWLEDGMENTS, ETC. 13 the oath of John Smitli, subscribing witness thereto, who beincr 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 A. B., and Mary his wife ; that he knew them to be the same persons described in, and who executed the within conveyance : and, there- upon, they severally acknowledged before me that they executed the same; and the said Mary, &c., [as in § 3, to the end] E. F., Justice, &c.' § 5. By Husband and Wife — Husband known, and Wife proven to the Officer. County, ss: On this first day of May, &c., before me personally came A. B., and Mary his wife ; the said A. B. being known to me to be the same person described in, and who executed the within conveyance ; and the said Mary being proven to me satisfactorily to be the same per- son described in, and who 'executed the within conveyance, by the oath of John Smith, subscribing witness 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 vrife of the said A. B., and that he knew her to be the same person described in, and who executed the said conveyance ; and, thereupon, the said A. B., and the said Mary his wife, severally acknowledged that they executed the same ; and the said Mary, &c., [as in § 3 to the end^ E. F., Justice, &c. § 6. By two Husbands and their Wives. County, ss: On this first day of May, &c., before me personally came A. B., and Mary his wife, and 0. D., and Lucy his wife, known to me to be the individuals described in, and who executed the within convey- ance, and severally acknowledged that they executed the same ; and the said Mary and Lucy, severally, each for herself, acknowledged, on a private examination by me made, apart from her husband, that she executed the same freely, without any fear or compulsion of liim. E. R, Justice, &c. § 7. By Wife in separate Certificate. County, ss: On this first day of May, &c., before me personally came M. B., wife of A. B., described in the within conveyance, the said M. B. being known to me to be the individual described in, and who 1 The official title of the officer should always be written in full, and not abbreviated. 14 NEW clbek's assistant. executed tlie said conveyance ; and she acknowledges in a privats examination by me made, apart from her husband, that she executed the same freely, without any fear or comoulsion of him. E. F., Justice, &c. § 8. By two or more Parties. County, ss: On this first day of May, &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. E. F., Justice, &c. % 9. By five persons — three known and two identified. County, ss: On this first day of May, &c., before ine personally came A. B., C. D., and E. R, to me known to be three of the individuals described in, and who executed the within conveyance; and also came G. H. and I. J., satisfactorily proven to me to be two of the individuals described in, and who executed the within conveyance, by the oath of M. M., subscribing witness thereto, wlio beinr 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 G. H. and I. J., and that he knew them to be the two individuals described in, and who executed the within conveyance : and, thereupon, the said A. B., C. D., E. F., G. H., and I. J., severally acknowledged before me that they executed the same, for the purposes therein mentioned. 0. P., Justice, (fee. § 10. By one of several Parties. County, ss: On this first day of May, &c., before me personally came A. B., to me known to be one of the individuals described in, and who exe- cuted the within conveyance, and acknowledged that he executed the same. E. F., Justice, &c. § 11. By an Attorney. County, ss: On this first day of Maj', &c., before me personally came A. B., known to me to be the same person 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 :.I«aWWLEDaUBNTS, ETC. 15 6< «Stomey*duly executed by tlie said C. D., bearing date the day of , in the year , and recorded in the office of the Clerk of the county of Onondaga, in book A of Powers of Attorney, page 39, on the day of , in the year . E. F., Justice, &c. § 12. By Attorney known to the Officer. County, ss: On this first day of May, [ . County of , j ' i Salem, May 1, 1847. Then personally appeared before me, the within [or, above named A. B., and acknowledged [or, and C. B. his wife, and seve- rally acknowledged] the foregoing instrument to be his [or, their] free act and deed. E. F., Justice, &c. § 29. Achnowledgment in Pennsylvania. State of Pennsylvania, ) . Mercer County, j The first day of May, &c., before me, one of the Justices of the Peace, [or, one of the Judges of the Court of Common Pleas] in and for said county, personally appeared the above, named A. B., and acknowledged [or, and C. B. his wife, and severally acknowledged] the foregoing written indenture to be his [or, their] act and deed, to the end that the same might be recorded according to law. [If necessary, add: And she, the said Caroline, being of lawful age, and being examined by me separate and apart from her husband, and the contents of said indenture being fuUy made known to her, did declare, that she did voluntarily, and of her own free will and accord, seal, and as her act and deed dehver, the same, without any coercion or compulsion of her said husband whatever.] Witness my hand and seal. E. F., Justice, &c. [l. s.]' § 30. Acknowledgment by Hushand and Wife in Michigan. ■State of Michigan, ) Wayne County, ) Be it remembered, that on this first day of May, &c., before me, a Justice of the Peace in and for the county aforesaid, appeared A. B., and Mary his wife, and severally acknowledged that they had severally executed the within instrument, for the uses and purposes 'therein mentioned: And the said Mary, on a private examination apart from her husband, acknowledged that she executed the within instrument freely, and without fear or compulsion from any one.* And I further certify, that the persons who made said acknowledg- ment are known to me to be the individuals described in, and who executed the within instrument. E. F., Jiistice, &o. 1 The acknowledgment may Ije before a dudge of a Supreme or Circuit Court, Notary 'Public, Mayor of a city, Commissioner appomted in anotlier State, or a foreign Mift> ister or Consul of the United States. 3 A simple scroll, made with a pen, is suf- ficient to constitute a seal in Pennsylvania. ACKNOWLEDGMENTS, ETC. 21 § 31. The same, in Ohio. State of Ohio, ) g. Hamilton County, j Be it remembered, &&, [as in 30, to the *.] E. R, Justice, Ac. § 32. The same, in Illinois. State of Illinois, ) Cook County, j " Bo it remembered, that on the first day of May, &c., before me, the subscriber, one of the Justices of the Peace in and for said county, personally appeared A. B., and Mary his wife, to me person- ally liiiown to be the individuals described in, and who executed tiie within deed, and severally acknowledged that they had executed the same :* And the said Mary, after I had made her acquainted witibi and explained to her the contents of the said deed, on an examina- tion separate and apart from her said husband, acknowledged the same to be her act and deed, and that she executed the same volun- tarily and freely, and without compulsion of her said husband, and that she does not wish to retract. E. F., Justice, &c. § 33. The same, in Indiana. State of Indiana, ) Jackson County, j Be it remembered, &c., \as in § 32 to the *, and then add:'[ And the said Mary, on a private examination, separate and apart from, and out of the hearing of her husband, acknowledged that she executed such deed of her own free will and accord, without any coercion or compulsion of her husband. E. F., Justice, &c. § 34. The same, in Alabama.^ State of Alabama, ) Lowndes County, j This day, before me, G. H., Esq., Judge, &c., personally appeared A. B., and acknowledged, [or, and M. B. his wife, and severally acknowledged] that he [or, they] signed, sealed, and delivered the foregoing deed rfi C. D., on the day and year therein mentioned, as his [or, their] voluntary act and deed. [If necessary, add: And the said M. B., on a private examination, apart from her husband, acknowledged that she signed, sealed, and delivered the said deed^ as her voluntary act, freely, and without any fear, threats, or com- pulsion of her husband.] Given under my hand and seal, this day of , in the yeajr eighteen hundred and . G. H. [l. s.] * 1 The acknowledgment may be taken I missioner for Alabama. _ As in Fennaylvaniai before a .Judge of any Supreme Court, Clerk a scroll of the pen constitutes a seal, of a Circuit Court, Notary Public, or Com- I S2 HEW clerk's assistant. § 35. Satisfaction of Mortgage and Acknowledgment, hy individual known to the Officer. I, A. B., of the town of in the county of and Stat* of , do hereby certifyj 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 second part, and recorded in the office of the Clerk of the County of , in book 27 of mortgages, at pages 250 and 251, on the first day of May, A. D., 1845, [z/ the mortgage has been assigned, insert the name 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 mortgage was duly assigned to me by the said A. B., the mortgagee 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 20 of mortgages, at page 9, on the tenth day of June, A. D., 1845,] is fully paid, satisfied and discharged. Dated the first day of July, 1846. A. B. In presence of G. H. County, ss : On this day of , in the year one thousand eight hundred and forty-five, before me came A. B., known to me to be the individual described in, and who executed, the above certificate, and acknowledged that he executed the same. E. F., Justice, &c. § 36 Certificate of Satisfaction to be written on the Mortgage. I, A. B., the mortgagee within named, [or, the assignee of the within named mortgagee,] do hereby certify that the within named oiortgage is fully paid, satisfied and discharg&d. Dated the day of , A. D., 18 . A B. [Add achnowledgment, as in § 35.] § Si. Satisfaction by an Executor, Administratbr or Trustee. I, A. B., executor of the last will and testament of C. D., deceased, [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 trustee as aforesaid,] bearing date, &c. [Follow the preceding forms, as the case may require^ In presence of A. B G H. ACKNOWLEDGMBNTS, KTO. 23 § 38. AcJtnowledffment of Satisfaction hy Individual proven to the Officer. County, ss : On this first day of May, &c., before me personally came A. B., satisfactorily proven to me to be the same person described in, and who executed the above certificate, by the oath of C. D., to me known, 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 A. B. ; and that he knew him to be the same person described in, and who executed, the above certificate, which is to me satisfactory evidence thereof : and, thereupon, the said A. B. acknowledged before me, that he executed the said certificate. E. F., Justice, &c. § 39. Proof of Execution of Certificate, hy Subscribing Wit- ness known to the Officer. County, ss : On this first day of May, &c., before me personally came C. D., subscribing witness to the above certificate, to me known, 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 A. B. ; that he knew him to be the same pereon described in, and who executed the above certificate ; that he saw him sign the same : that the said A. B. acknowledged the execution thereof in his presence ; and that he subscribed his name as a witness thereto. E. R, Justice, &c. § 40. The same, by Subscribing Witness proven to the Officer. County, ss: On this first day of May, &c., before me personally came L. M., to me known, and C. D. ; and the said L. M. 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 C. D., and that he knew him to be the same person who is the subscribing witness to the above certificate, which is to me satisfactory evidence of his identity ; and the said C. D., being by me duly sworn, did depose and say, that he resided in the town of in the county of ; that he was acquainted with A. B. [as in §39, to the end.J E. F., Justice, &c. § 41. Certificate of Satisfaction by a Corporate Company, with Proof of Execution. I, J. S. S., President of the Bank of Auburn, do hereby certify, that a certain mortgage bearing date the first day of June, one thou- sand eight hundred and forty-one, made and executed by C. D., and E. his wife, to F. G., and by the said F, G. assig-ned to the said 84 NEW clerk's assistant. Bank of Auburn, by assignment dated the tenth day of July, one thousand eight hundred and forty-three, and recorded in the office of the Clerk of the county of Cayuga, in book No. 34 of mortgages, page 99 ; and which said mortgage was recorded in the office of the Clerk of the county of Cayuga aforesaid, in book No. 30 of mort- gages, pages 10 and 11, on the second day of June, A. D. 1841, is fully paid, satisfied, and discharged. In witness whereof, the said Bank of Auburn has caused its cor- porate seal to be hereunto affixed, the first day of May, in the year one thousand eight hundred and forty-five. [l. s.] J. S. S., President In presence of C. H. M. Cayuga County, ss: On this first day of May, &c., before me personally came J. S. S., in the above certificate mentioned. President of the Bank of Auburn aforesaid, to me known ; and the said J. S. S., being by me duly sworn, did depose and say, that he resided in the town of , in the said county : that the seal affixed to the above certificate was the corporate seal of the said Bank of Auburn, and was affixed there- to by the order of the Board of Directors of said Bank ; and that he subscribed his name thereto by the like order. E. F., Justice, (fee. § 42. Satisfaction of Judgment in a Justice's Ccnirt, where a Transcript is filed in the County Clerk's Office} County Clerk's Office. A. B. ^ Judg-ment rendered in favor of the plaintiff against against j- defendant, before E. E., Esq., a Justice of the Peace m C. D. ) and for said county, for dollars and cents, damages and costs. Transcript filed and Judgment docketed, the day of , in the year 1845. Satisfaction of the above mentioned judg-ment is hereby acknow- ledged. A. B. Subscribed and acknowledged before me, the day of , in the year 1845, by A. B., known to me to be the plaintifl^ above named, [or, made known to me by the oath of E. F., to be, &c. ; or, known to me to be one of the plaintiffs, &c.] E. F., Justice, &c ■SR, S. (3d ed.)344, §129. ACKNOWLEDGMENTS, ETQ. 26 § 43. ^satisfaction of Judgment in a Court of Record} Supreme Court, \or. County Court,] A. B. 1 Of the day of Januar}', one thousand eight against \ hundred and forty-seven. C. D. ) Satisfaction for $ Satisfaction is acknowledged between A. B., plaintiff, and C. D., 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 plaintiff.] Subscribed and acknowledged before me, the day of , 1847, by A. B., known to me [or, made known to me,] to be the plfuntiff in the above entitled cause, [or, the Attorney for the plain- tiff in the above entitled cause.] E. F., Justice, &c. § 44. Application for a Subpoena to compel a Sithscribing Witness to attend before an officer, to prove the Exe- cution of a Conveyance. To G. H. Esq., County Judge of county: I, A. B., do hereby make apphcation to you to issue a subpoena, requiring E. R, who resides in the town of in said county, to appear and testify before you, touching the execution of a certain conveyance of real estate, made and executed by I. J., to me, the said A. B., [or, if the application is made by the heir, or personal representative of the grantee, name such grantee^ and to which the said E. F. is a subscribing witness ; the said E. F. having refused, upon my request, to appear and testify touching the execution of the said conveyance ; and the same not having been proved or acknowl- edged, cannot be so proved or acknowledged without the evidence of the said E. F. Dated the first day of July, 1847. A. B. County, ss: A. B. the applicant above named, being duly sworn, says that the facts stated and set forth ih the above application are true. Sworn to before me, ) this first day of July, 1847. [ G. H., County Judge. 1 Satisfactinn of Jutlgments in CoiivIr ofl wilhin two years afler filing the record. Recoril, may be acknowledged by the ACiorney, | 2 R. S., C3d ed.) 459, § 35. 20 NEW CLERK'S ASSISTANT. § 45. Form of the Subpoena} County, ss: To E. F., of the town of in said county ; In the name of the People of the State of New York, you are hereby commanded to appear before me, at my office, \or, dwelling house,] in the town of , in said county, on the day of July, instant, at ten o'clock in the forenoon, then and there to testify, touching the execution of a conveyance of real estate, from I. J. to A. B., to which you are a subscribing witness, as appears by the application of the said A. B. to me made under oath. Hereof fail not at your peril. Given under my hand, this first day of July, 1847. G. H., County Judge. 46. Affidavit to ohtain Warrant, to he endorsed on the original Subpoena. County, ss: A. B., of , being duly sworn, says, that on the first day of May, instant, at the town of , in said county, he served the within subpoena on E. F., therein named, personally, by then and there showing him the same, and deHvering to him a true copy there- of, and by paying [or, tendering] to him the sum of for liis fees for travelling ^o the place specified in the said subpoena, and for his attendance in pursuance thereof A. B. Sworn to before me, ) this day of , &c. j G. H. County Judge. § 47. Warrant. County, ss: To the Sheriff of said county, greeting : In the name of the People of the State of New York, you are hereby commanded forthwith to apprehend E. F., in your county, and bring him before me, G. H., Esq., County Judge of said county, at my office in the town of , in said county, to testify touching the execution of a conveyance of real estate, from I. J. to A. B., to which the said E. F. is a subscribing witness, as is said ; the said E. F. having been duly subpoenaed to appear before me, to testify touch- ing the execution of the said conveyance, and having, without reasonable cause, neglected [or, refused] to attend in pursuance 1 This Subpcena is to be served by showing the original, under the hand of the officer, to the witness, and at the same time delivering to him a copy thereof, and paying or tender- ing him the legal fees for one day's attend- ance, which are fifty cents for attendance ; and if the witness resides more than three miles from the place of aiiendanoe, travelling fees, at the rate of four cents per mile going and retummg. 2 R. S. (3d ed.; 4f7, §54; Laws of 1840, Chap. 385, If the witness refu- ses to appear after the service of the Sub- poena, without good cau'^e, the officer issuing the aame has power to compel his attendance, by warrant directed to the Sheriftof llie coun- ty. 2 R. S. (3d ed.) 4ilS, § '« And if he still persists in refusing to testify, or to an- swer a legal question, without reasonable cause, he may be committed to the common jail oi the county, Id,. §57, ACKNOWLEDGMENTS, ETC. 27 thereof Given under my hand and seal, the day of July, 1847. G. H. [l. b.] § 48. Commitment for Refusal to Testify. By G. H., County Judge of county, to A. P., Sheriff of the said county, greeting : E. F., having this day been brought before me on a warrant by me issued, to compel his attendance to testify \where the witness appears in pursuance of the suhpcena, say: having this day appeared before me, in pursuance of a subpoena by me issued, requiring him to appear and testify] touching the execution of a conveyance of real estate, from I. J. to A. B., to which the said E. F. is a subscrib- ing- witness, as is said; and the said E. F., although required by me, having refused to answer upon oath \if the commitment is made on accomit of the refusal of the witness to answer a particular ques- tion, deemed pertinent by the officer, insert here: the following question, &c., specifying it particularly'] touching the execution of the said conveyance. I do, therefore, in the name of the people of the State of New York, command you forthwith to convey the said E. F. to the jad of the said county, and there commit him to close custody in such jail, without bail, and without the liberties of the jail, until he shall submit to answer on oath as aforesaid, \or, the question aforesaid,] or be discharged according to law. Given under my hand and seal, the day of July, 1847. G. H. [l. s.] 8 49. Oath to he administered to a Subscribing 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 presence of the ever-living God, that, &c., as above, omitting the words: So help you God: or. You do solemnlj', sincerely, and truly affirm and declare, that, &c., as above, omitting the words as aforesaid^ § 50. 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, touching the identity of the parties or, the subscribing witness] to this conveyance. So help you God. If necessary, vary as in the foregoing form.] § 51. 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 above when necessary.] 1 For the prorisions of the Statute ia relation to the administration of oailu, vide 2 E. S. (3d ed.) 504-5. CHAPTER II. AGREEMENTS AND CONTRACTS, PRACTICAL REMARKS. 1. In the following oases, every agreement is void, unless such agreement, or some note or memorandum thereof, expressing the consideration, 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 miscar- riage of another person;' 3. Every agreement, promise, or undertaking, made upon considera- tion of marriage, except mutual promises to marry.* 2. Every contract for the sale of any goods, chattels, or things, for the price of fifty dollars, or more, is void, unless : 1. A note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or 2. Unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or 3. Unless the buyer shall, at the time, pay some part of the purchase money.' 3. 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 memorandum thereof, expres- ing the consideration, be in writing, and be subscribed by the part) by whom the lease or sale is to be made. An agreement to sell growing trees, with the right to enter and remove, is such an inte- rest in lands as to require a contract in writing.' 4. In contracts for the sale of land, where the vendee gives notice 1 2 R. S. (3d ed.) 195, § 2. 2 10 Wendell, 426 ; 13 Id., 308; 15 Id., 345 ; S Hill, 128 ; 6 Id., 200 ; 2 Baiboui-'s Ch. Rep. 221. 3 4 Wendell, 657 ; 9 Id., 273; 19 Id., 557; 24 Id., 35, 256; 2 Hill, 663; 3 Id., 128, 534; 4 td., 178 ; S Id., 145, 160, 483 ; 2 Benio, 45. 4 10 Wendell, 461. 6 2 R. S. (3d ed.) 195, § 3 ; 3 Wendell, 112: 13 Id., 54; 17 Id., 333; 20 Id., 43); 23 Id.. 270 ; 24 Id., 323 ; 26 Id., 341 ; 5 Hill, gpi j 1 Denio, 51 ; 1 Comslock, 261 ; 2 Id., 258. » 2 R. S. (3d ed.) 194, § 8 ; 2 Hill, 485 ; 1 Denio, 550. AGREEMENTS AND CONTRACTS. 29 of a refusal to perform tlio contract, no tender of a deed by the ven- dor is necessary in order to compel a specific performance.' 5. In every action upon a sealed instrument, and vs^here a set-off is founded upon a sealed instrument, the seal thereof is only pre- sumptive evidence of a sufficient consideration.^ 6. In PennsylvEinia, Virginia, Alabama and Georgia, a scroll of ink made mth a pen constitutes a seal ; but in New York and other States, wax, or some tenacious substance, is necessary, except it be the seal of a court, public officer, or corporation.* 7. A party signing an instrument purporting to be executed by him, with his initials only, is bound.^ 8. The term ' agree,' does not of itself import a consideration.' 9. Where one party puts an end to an executory contract by a refusal to fulfil, the other party is entitled to an equivalent in dam- ages, for the dii-ect gains and profits which he would have reahzed from performance, though not for the collateral gains or profits, or remote damages. And where a person is employed at a salary and discharged before the expiration of the term of_ service, the damages will be reduced, if he subsequently obtained employment." 10. Where an agreement to lease or sell lands, or a sealed instru- ment, is executed by one acting as an attorney, it must distinctly and clearly appear to be the act and deed of the principal ; it must be executed in his name, and pui-port to be sealed with his seal.' 11. In all ordinary cases, where the consideration is expressed, there is no diffiirence be+ween an agreement under seal, and one not under seal, except that the former can be more easily proved, and is therefore to be preferred. 12. Written contracts, capable of a sensible construction, must be determined by the language itself, and not by parol proof; although courts may resort to extrinsic cuxumstances to discover the intentions of the parties.' 13. Misrepresentations of material facts, though not intended to deceive, will entitle a party to rescind a contract." 14. Written contracts may be waived by paroL" 1 2 Comstock, 60. " 2 R. S. (3a ed.) S04, § 96 ; 11 Wendell, lOr i 15 Id., 529 ; 21 Id., 626 ; 25 Id., 107 ; 5 Hill, 63. a 2 Hill, 227; 3 Id., 493. ' < 1 Demo, 3, 471. s 1 Denio, 226. » 7 Hill, 61 ; 1 Denio, 317; 2 Id., 609. ' 4 Hill, 351, and autnoi-ities there cited. B 1 Barbour's S. C. Rep., 4C4, 635. • 1 Barbour's S. C. Rep., 471. to 1 Barbour's S. C. Rep., 114, 326 NEW clerk's assistant. FOKMS. § 52. General form of Agreement — Damnges fixed. Tliis agreement made the day of , one thousand eight hundred and , by and between A. B., of the town of , in the county of , of the first part, and 0. D., of , of the second part, witnesseth : The said party of the second pai-t covenants and agrees, to and with the party of the first part, to \state the subject matter of the agreement.'] And the said party of the first part covenants and agrees to pay unto the said f)arty of the second part, for the same, the sum of dollars, awful money of the United States, as follows : the sum of dollars, on the day of , 18 , and the sum of dollars on the day of , 18 , with the interest on the amount due, payable at the time of each payment. And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to these presents bind themselves, each unto the other, in the penal sum of dollars, as fixed and settled damages, to be paid by tlie failing party. In witness whereof, the parties to these presents have hereunto set their hands and seals, the day and year first above written. Signed, sealed, and delivered in the [ A. B. [l. s.l presence of G. H. j C. D. [l. s.l § 53. Agreement on the Sale and Purchase of Personal Property. This agreement, by and between A. B., of, &c., and C. D., of, (fee, made the day of, cfec, witnesseth: That the said C. D., in consideration of the agreement hereinafter contained, to be performed by A. B., agrees to deliver to the said A. B., at his storehouse, in the village of , three hundred bushels of wheat, [or, two hundred barrels of pork, as the case may be,] of good merchantable quality, on or before the day of , 18 . And the said A B,, in consideration thereof, agrees to pay to the said C. D. the sum of one dollar for each and every bushel of the said wheat, immediately upon the completion of the dehvery thereof. In witness, &c., [as in § 62.] § 54. Agreement for Building a Honse. This agreement for building, made the day of , one thousand eight hundred; and , by and between A. B., of, (fee, of the first part, and Cf. D., of, &c., of the second part, wit- nesseth : That the said party of the second part, covenants and agrees, to and with the said party of the firet part, to make, AGREEMENTS AND CONTRACTS. 31 erect, build and finish, in a good, substantial, and workmanlike manner, on the vacant lot of the said party of the first part, sit- uate on street, in the village of , a dwelling-house, agreeable to the draft, plan, and explanation, hereto annexed, of good substantial materials, [7j^ the materials are to he furnished by the party of the first part, say: of such materials as the said party of the first part shall find or provide for the same,] by the day of next And the said party of the first part covenants and agrees to »)ay unto the party of the second part, for the same, the sum dollars, lawful money of the United States, as follows: the sum of dollars in thirty days from the date hereof, and the remaining sum of dollars, when the said dwelling- house shall be completely finished. \_If necessary, add: And also, that he wiU furnish and procure the necessary materials for the said work, in such reasonable quantities, and at such reasonable time or times, as the said party of the second part shall or may require.] And for the true and faithful performance of aU and every of the covenants and agreements above mentioned, the parties to these presents bind themselves, each unto the other, in the penal sum of dollars, as fixed and settled damages, to be paid by the failing party. In witness, &c., [its in § 52.] § 55. Agreement for Re-huUding Mills. This agreement, made the day of, &o., between A. B., of, i&c, of the first part, and C. D., of, &c., of the second part, wit- nesseth : That the party of the first part, for the consideration here- inafter mentioned, doth promise and agree, to and with the party of the second part, that he will, on or before the day of next, well and sufficiently re-build, or cause to be re-built, the mills of the said party of the second part, situate on the outlet of the lake, in the town of in the county of , with such materials [7/" the worTcmen are employed by the party of the second part, insert: and workmen to be employed under him] as the said party of the second part shall find and provide for the same; and that he, the said party of the first part, shall not absent himself, or depart from the work and re-building aforesaid, without leave of the said party of the second part; and that if he shall absent himself without leave, he will pay to the said party of the second part, the sum of dollars for every day of such absence, to be stopped and deducted from the wages becoming due to the said party of the first part, as hereinafter provided. And the said party of the second part, in consideration of the 82 KEW clerk's assistant. premises, doth promise and agree, to and with the party of the first part, to pay to the said party of tlie first part, the sum of dollars, [or, for all such time as he shall be employed in the work of re-building aforesaid, weekly, and every week, the sum of dollars, and so in proportion for a less time than a week; and, in addition thereto, the sum of - dol- lars,] on the completion of the work and re-building aforesaid. In witness, &c., [as in § 52.] § 56. Agreement for making Flour Barrels. , This agreement, made the day of, &c., between A. B., of, &c., of the first part, and 0. D., of, &c., of the second part, witnesseth: That the said A. B., for the consideration hereinafter mentioned, agrees to make, or cause to be made, for the said C. D., at the cooper-shop of the said 0. D., in the town of , two thousand good, hard, well seasoned flour barrels; the staves and heading to be of white oak timber, and the hoops of black ash, either round or square, as the said C. D. shall direct The materials are to be furnished by the said A. B., at his own pro- per cost and charge, and he is to have the free and uninterrupted use of the tools in the shop of the said C. D., as aforesaid, with- out paying any thing for the same. In consideration whereof, the said C. D. agrees to pay to the said A. B. the sum of thirty cents, for each and every of the said two thousand barrels; such payment to be made as often as the said A. B. shall, have completed one hundred barrels, in the pro- per proportion for the same. In witness, &o., [as in § 52.] § SY. Agreement to Sell and Deliver Cord- Wood, or Stone. Tliis agreement, made the day of, &c., between A. B., of, &c., and C. D., of, &c., witnesseth: That the said A. B., for the consideration hereinafter mentioned, agrees to sell to the said C. D., five hundred cords of seasoned maple and beech cord-wood,' and to deliver, and securely pile the same, on the bei-m bank of the Erie Canal, immediately east of bridge, in the town of , [or, one thousand perches of good quarry stone suit- able for building, and to deliver and cord thfe same, on the soutL side of the vacant lot of the said C. D., situate on street, in the village of ,] on or before the day of next In consideration whereof, the said C. D., agrees to pay to the said A. B. the sum of for each and every cord of wood, [or, perch of stone,] as aforesaid, upon the final and complete delivery thereof. In witness, &c., [as in § 62.] AGREEMENTS AND CONTRACTS. 38 § 58. Agreement to sell Stoch in Grocery Store. This agreement, made the day of , in the year 1845, between A. B., of, &c., and C. D., of, &c., witnesseth: That the said A. B., for the consideration hereinafter specified, agrees to sell to the said C. D., and the said C. D. agrees to buy of the said A. B., all the stock of goods and groceries, wares and merchandise, belonging to the Said A. B., and now being in the grocery store occupied by him at the corner of street, in the village of , together with the furniture and fixtures thereunto appertaining, and also all the oats, hams, cheese, pota- toes and produce, of every name and nature, bought or contracted for by- the said A. B., and intended for sale in the said gTOcery store. The stock of goods and groceries, wares and merchandise, is to be inventoried to the said C. D. at the original cost, with- out including transportation expenses ; and deduction is to be made for any depreciation in value on account of damage, wear or tear: the furniture and fixtures lare to be inventoried at their fair cash value, and if the above parties cannot agree as to such valuation, and as to such deduction as aforesaid, the same shall be deter- mined according to the appraisal of E. R, G. H., and I. J., of , aforesaid, or a majority of them: the oats, hams, cheese, potatoes and produce, are to be inventoried at their original cost Said inventory is to be completed within ten days from the date hereof and the propeily above specified delivered over to the said C. D. immediately thereupon. In consideration of the premises, the said C. D. agrees to execute and deliver to the said A. B., as and for the purchase money of the above mentioned property, and in full payment therefor, his pro- missory note, or notes, in such several sums as the said A. B. shall direct, payable at six months after date, at the Bank, with interest [Jff^ necessary, add: and endorsed by L. M., of , aforesaid.] And the said A B. further covenants and agrees, to and with the said C. D., that he wiU not, at any time hereafter, engage, directly or indirectly, or concern himself, in carrying on or conducting the grocery busiaess' within one mUe of the premises now occupied by him as aforesaid for such purpose. And it is expressly understood that the stipulations aforesaid are to apply to, and to bind, the heirs, executors, and administrators of the respective parties, and in case of faQure, the parties bind them- selves, each unto the other, in the sum of dollars, as fixed and settled damages, to be paid by the failing party. In witness, &c., [as in § 52.] J If it ia desired to bind ttie party not to I the worda, " either as principal or agent," engage in the business, even as an agent, | should be inserted here. 84 NEW clerk's assistant. § 69. Agreement to Engrave Maps. This agreement, made tlie day of, &c., between A. B., of, (fee, and C. D., of, &c., witnesseth : That the said A. B.. for the consideration hereinafter specified, covenants and agrees, to and with the said C. D., that he will provide good and proper steel plates, and will engrave thereon, separately, the map of each and every State and Territory in the United States, according to the plans, specifi- cations and drawings, heremito annexed ; and that he ■svill finish and complete the same in a workmanlike manner, and deliver them to the said C. D., on or before the day of next. In consideration whereof, the said C. D. covenants and agrees to pay to the said A. B., upon the delivery of each and every of the said engraved plates, the sum of dollars, in fuU payment and satisfaction therefor. In witness, &c., [as in § 52.] § 60. Agreement to Freight Sloop, or Canal Boat. This agreement, made the day of, (fee, between L. S. & Co., factors and commission merchants, of the city of , of the first part, and C. D., owner and master of the sloop [or, canal boat] Empire, of the second part, witnesseth : That the said party of the first part covenant and agree, to and with the said party of the second part, that they will lade and freight the aforesaid sloop [or, canal boat] Empire, for and during the ensuing season of naviga- tion, to commence on the 20th day of ihstant, when the said sloop [or, canal boat] is to be in readiness to receive her first lading, at the dock of the said party of the first part, [or, at Pier No. ,] in the city of , aforesaid, as well on her upward trips from the said city of to the city of , and the interme- diate ports, as on her return trips from to ; and that they wUl pay to the said party of the second part for carrying the same, on the delivery of each and every cargo in a safe and sound condition, as hereinafter mentioned, at and after the following rates of compensation, viz : FOK UP FREIGHT. Saltj - - cents per bushel Merchandise, ■ - - do hundred. Household Furniture, - - - do do Coal, - - ... dollars per ton. (fee. (fee. FOR DOWN FREIGHT. Flour, - - - - - . . cents per barrel Pork, do do Hay, - ... . . dollars per ton. Wheat and Com, cents per bushel Butter, ... do firkin. Staves and Heading, do thousand. In an agreement, or Eubaoription, of this kind, according to the recent decisions of the New Yoi-lt Courts, it is necessaiy that there Blrould be a request to the Trustees, Com- missioners, or Committee of Citizens, if one be selected to perform tlie worlc, or to carry the object for which tiie money is raised into effect ; otherwise, ihe agreement will be void tor want of consideration. See, 2 Denio, 403 ; 1 Comstock, 584. AQKEBMENT3 AND CONTRACTS. 43 he will complete the said work on or before the day of next And the said A. B., in consideration of the premises, agrees to furnish and provide good and sirfiScient materials for the said work, at such time or times as the said C. D. may request; and to pay the said C. D. for all such work as shall be performed by him or his servants in and about the said new dwelling house, ornamental work excepted, on the completion of the same, at and after the rate of per yard of three feet square, and the sum of dollars for all the ornamental work done or performed in and about the said dwelling house, — it being expressly understood and agreed, that no extra charge is to be demanded or allowed, for comers, arches, jams, joints, fire places, or any other kind of work not strictly ornamental, but all the work is to be measured as plain, except the ornamental work to be paid for, as aforesaid, in gross. In witness) &c., [as in § 52.] § 73. Agreement to Sell Land. This agreement, made and entered into the day of, 2R. S. (3d ed.) 219, 5 33. 48 NEW clerk's assistant. 18. In cases where money has been paid, or agreed to be paid, mxy Justice of the Peace of the county, or any Mayor, Eecorder, or Alderman of the city, in which the apprentice resides, has the po^yer of inquiring into all disputes in relation thereto, and of making such order and direction as the equity of the Where the raasi-er cnmplaina against the | vior, forma § 102, etc., will require but Uttla tpprentice, for any misdemeanor, or iU beha- 1 alteration to meet the case. CHAPTER IV. AUBITEATION AISD AWAED, PRACTICAL REMARKS. 1. All persons, except infants and married women, and persouo of unsound mind, may, by an instrument in writing, submit to the decision of one or more arbitrators, any controversy existing between them which might be the subject of an action at law, or of a suit in equity ; any claim to an interest for a term of years, or for one year, or less, in real estate ; or any controversy respecting the partition of lands between joint tenants, or tenants in common, or concerning the boundai'ies of lands, or the admeasurement of dower. No claim to real estate, in fee or for life, can be thus submitted. The parties to any such admission may agree, that a judgment of any court of law and of record, to be designated in such instrument in writing, as aforesaid, shall be rendered upon the award made in pursuance thereof.' 2. The arbitrators must appoint a place and time for the hearing, otherwise their award will be void; and they have the power to adjourn from time to time, or, for good cause shown, to postpone the hearing to any time not extending beyond the day fixed for render- ing their award. Before proceeding to take testimony, they must take the prescribed oath. Such oath may be a4ministered by any Judge, of any Court of Record, or by any Justice of the Peace, or by any Commissioner of Deeds. The attendance of witnesses may be compelled by subpoena, to be issued by any Justice of the Peace. The oaths to witnesses and other persons examined before arbitra- tors, may be administered by such arbitrators, or any, or either of them.' . , , , 3. All the arbitrators must meet together, and hear all the proofs and allegations of the parties; but an award by a majority will be 1 2 R.S. (3rl ed.) 6^ 55 1, 2: 1 Hill, 44. | chap. 187; 1 Hill, 489; 3 Barbour'. S. O » a B. S. (3il ed.) 629, 55 3-6 ; Laws of 1843, | Kcp., 275. •• ur . a. u u NEW clerk's assistant. valid, unless the concurrence of all be expressly required in the submission. The award must be in writing, subscribed by the arbi- trators, and attested by a subscribing witness.' 4. An award made without notice to the parties of the hearing, and without their being present, or having an opportunity to be heard, is absojutely void.'' 5. Upon proving the submission and the aw«rd, by the affidavit of the subscribing witness, or by the affidavit of the arbitrators, within one year after making such award, the court designated in such submission shall, by rule, in open court, confirm the award made in pursuance thereof, unless the same be vacated or modified, or a decision thereon be postponed.' 6. Any party complaining of such award, may move the court de- signated in the submission, to vacate the same, upon the ground that it was produced by fraud or corruption ; or that the arbitrators were guilty of misconduct in refusing to postpone the hearing, or reject- ing proper testimony ; or that they exceeded their powers.* 7. Such award may be modified or corrected, in Kke manner, where there is an evident miscalculation of figures ; where the arbi- trators have decided some matter not submitted to them; or where the award is imperfect. All applications to vacate, or modify an award, must be made at the next term of the court after the publication of such award.' 8.' Judgments entered up, in pursuance of any award and confirm- ation thereof, may be set aside, in the same manner as judgments in other cases, and are subject to the same provisions of law.° 9. Whenever a party revokes the submission to arbitration before the publication of the award, he will be Hable to the adverse party for all the costs, expenses, aild damages, the latter may have incur- red. If the submission so revoked be contained in the condition of the bond, suit may be commenced thereon by the obligee (the revo- cation being assigned as the breach thereof,) who vrill be entitled to recover the costs, expenses, and damages he may have incurred.' 10. Where a judgment, entered in pursuance of any award, as aforesaid, requires a party to perform some act, other than the pay- ment of money, and he refuses to do the same, he may be proceeded against, as in other cases of contempt' 11. A submission to arbitrators, of the subject matter of a pend- ing suit, and an award thereon, puts an end to the suit ; and the plaintiff's remedy is on the award.' 1 2 R. S. (3d ed.) 629, §5 7, 8 ; 2 Hill, 75 ; i Barbour's S. C. Rep., 250. ' 3 Barljour'a S. C. Rep., 276. 3 2 R. S. (3d ed.) 629, f 9 j 6 Wendell, 102 ; 6 Id., 520 ; i Hill, 551 i 6 Id., 303. 1 2 R. S. (3d ed.) 629, § 10 ; 17 Johnson, 405; 10 Wendell, 689 : 17 Id., 412; 1 Hill, 319. 489. • 2 a. S. (3d ed.) 629, 630, 5§ 11, 12 ; 6 Wen- dell, 520; 10 Id., 689; 17 Id., 412 ; 1 Paige, »'2 R. S. (3d ed.) 630, 5§ 13-17. ' 2 R. S. (3d ed.) 631, §§ 23, 24 ; 16 John- son, 206; 5 Paige, 578. » 2 R. S. (3d ed.) 631, § 18. 12 Wendell, 503; lHiU,69; 2Id.,387;« Id., 610 ; 3 Barbour's S. C. Rep., 275. ARBITRATION AND AWARD. 65 12. If the arbitration bond requires the award to be in writing, ready for delivery to the parties on or before a given day, the avmrd is a nullity, unless a coun^rpart of the award delivered to the pre- vailing party is prepared for the other party.' 13. If an agent enter into a submission in his own name, or if a person on behalf of himself and others, but without authority, enter into such submission, he will be personally bound to perform the award." 14. A submission to arbitrators is valid, though by parol ; but the award made in pursuance thereof cannot be enforced in the manner prescribed by the statute.' 15. Where the submission to arbitrators contains an express con- dition, the award must comply with it strictly.* 1 6. It is immaterial what the form of a submission may be, pro- vided the intention of the parties appears.' 17. The award must be confined to the submission." 18. Where a submission is verbal, and there is no agreement that the award shall be in writing, it may be by parol.' 19. Where the submission is made to two arbitrators, with the power of choosing an umpire in case of disagTcement, the award of the umpire, when made, is final and conclusive.' 20. The power of arbitrators is confined to the pai-ties submitted, and if they exceed that hmit, their award will, in general, be void." 21. Oral testimony may be given, either in law or equity, to invalidate an award, even though the submission and award be in writing, and under seal." 22. An agreement to pay a certain sum, in case of not abiding by an award, is a penalty, and the opposite party can only recover the sum awarded." 23. No provision is made in the statute for the compensation of ai'bitrators, but suit may be maintained by them separately, for a reasonable sum in payment for their services." 24. Arbitrators are not obhged to deliver their award till their fees are paid." 25. By the amended constitution of New York, tribunals of con- ciliation are authorized to be established. No definite action has yet been had in the Legislature on the subject; but should such tribunals be established, they will be found to differ very slightly in character from our present courts of arbitration, and the forms used in the one can readily be adapted to the other." 1 1 Hill, 321. 2 6 Hill, 419. s 2 Hill, 471. • 3 Barbour's S. C. Rep., 56. » 1 Barbour's S. C. Rep., 684. • 1 Barbour's S. C. Rep., 326, T 2 Barbour's Ch. Rep., 430. • 17 Johnson, 405 ; 1 Hill, 489. 7 Hill, 329. 10 7 Hill, 329. " 1 Denio, 464. " 1 Denio, 183. " 3 Barbour's S. C. Rep., 276. 1* Amended Constitution, (IS46,) Art. n., 86 DEW clerk's assistant. FORMS. § 106. Special Submission to Arbitrators. Whereas a controversy is now existing and pending, between A. B., of, &c., and C. D., of, &c., in relation to an exchange of horses, made by and between the said parties, at the town of , aforesaid, on the day of last past : Now, therefore, we, the under- signed A. B. and C. D., aforesaid, do hereby submit the said contro- versy to the arbitrament of E. F., L. M., and S. T., of, &c., or any two of them ; and we do mutually covenant and agree, to and with each other, * that the award to be made by the said arbitrators, or any two of them, shall, in all things, by us, and each of us, be well and faithfully kept and observed ; provided, however, that the said award be made in writing, under the hands of the said E. F., L. M., and S. T., or any two of them, and ready to be delivered to the said parties in difference, or such of them as shall desire the same, on the day of next. Witness our hands and seals, this day of , A. D. 1 8 . In presence of ) A. B. [l. s.] G. H. \ C. D.[l.s.] § 107. General Submission. Whereas differences have for a long time existed, and are now existing and pending, between A. B., of, &o., and C. D., of, &c., in relation to divers subjects of controversy and dispute: Now, there- fore, we, the undersigned A. B. and C. D., aforesaid, do hereby mutually covenant and agree, to and with each other, that E. F., L. M., and S. T., of, &c., or any two of them, shall arbitrate, award, order, judge, and determine, of and concerning all and all manner of actions, cause and causes of actions, suits, controversies, claims, and demands whatsoever, now pending, existing, or held, by and between us, the said parties : and we do further mutually covenant and agree, to and with each other, [as in § 106, from the * to the end.} § 108. Short Form of General Submission. We, the undersigned, hereby mutually agree to submit all our matters in difference, of every name or nature, to the award and determination of E. F., L. M., and S. T., for them to hear and deter- mine the same, and ;cQake their award in writing, on or before the day of next Witness our hands, this day of ,18 . In presence of ) A. R G. H. f CD ARBITRATION AND AWARD. fl7 § 109. Agreement for Judgment, to he inserted in the Submission, if necessary. And it is hereby further agreed between the said parties, that judgment ia the Supreme Court of the State of New York [or. County Court of county,] may be rendered upon the award to be made pursuant to this submission, to tlie end that all matters in controversy between them \if the submission be special, insert here, in that behalf,] shall be finally concluded. § 110. Arbitration Bond} Know all men by these presents : That I, A. B., of the town of , in the county of , am held and firmly bounS unto C. D., of the town of , in the county of , in the sum of five hundred dollars, lawful money of the United States, to be paid to the said C. D., or to his certain attorney, executors, administrators, or assigns ; for which payment, to be well and faithfully made, I bind myself, my heirs, executors, and administrators, firmly by these presents. Sealed with my seal; dated the day of , A. D., 18 . The condition of this obligation is such : That if the above boun- den A. B., shall well and truly submit to the decision and award of E. F., L. M., and S. T., named, selected, and chosen arbitrators, as well by and on the part and behalf of the said A. B., as of the said C. D., to arbitrate, award, order, judge, and determine, of and con- cerning all and all manner of actions, cause and causes of actions, suits, controversies, claims and demands, whatsoever, now depending, existing, or held, by and between the said A. B. and the said C. D.; so that the said award be made in. writing, under the hands of the said E. F., L. M., and S. T., or any two of them, and ready to be delivered to the said parties, or such of them as shall desire the same, on or before the day of , 18 ; then this obligation to be void, or else to remain in full force. [ Where there is no submis- sion in writing, separate from the bond, the following clause mag be inserted here; And the above bounden A. B. hereby consents and agrees, that judgment in the Supreme Court of the State of New York [or, County Court of county] shall be rendered upon the award to be made, as aforesaid, to the end that all matters in contro- versy between the said parties [or, the above mentioned matter in controversy] may be finally concluded.] Signed and sealed 1 A. B. [l. s.] in presence of >• G. H. ) I Each party should hare a bond. The obligor in one will be the obligeo in the other. 68 NEW clerk's assistant. §111. Condition of Bond on a Special Submission. The condition of' the above obligation is such : That if the above bounden A. B. shall well and truly submit to the decision of E. R, L. M., and S. T., named, selected, and chosen arbitrators, as well by and on the part and behalf of the said A. B., as of the said C. D., between whom a controversy exists, to hear all the proofs and allega- tions of the parties, of and concerning a certain exchange of horses, made by and between them, at the town of , aforesaid, on the day of, &c., and all matters relating thereto ; so that the award of the said arbitrators be made, &c., [as in § 110.] § 112. Notice to Arbitrators of their Appointment. To E. R, L. M., and S. T., Esquires: You are hereby notified, that you have been nominated and chosen arbitrators, as well on the part and behalf of the undersigned A. B., of, &c., as of C. D., of, &c., also undersigned, to arbitrate, award, &c., [as in the submission or bond, specifying the time within which the award must be made;"] and you are requested to meet the said parties at the house of 0. K, in the town of , aforesaid, on the day of, &c., at ten o'clock in the forenoon of that day, for the purpose of fixing upon a time and place when and where the proofe and allegations of the said parties shall be heard. Dated the day o^ &c. A. B. Yours, &c., C. D. § 113. Arbitrator's Oath. We, the undersigned, arbitrators, appointed by and between A. B. and C. D., do swear that we, respectively, will faithfully and fairly hear and examine the matters in controversy between the parties above named, and will make a just award therein, according to the best of our imderstanding. Sworn to, this day of , ) E. F. 18 , before me. j L. M. G. H., Justice of the Peace. S. T. § 114. Notice of Hearing for opposite Party, if necessary. In the matter of an arbitration, of and ^ concerning certain matters in diflfer- I ence between A. B., of the one part, [ and C. D., of the other part. J Sir : You will please take notice that a hearing in the matter above specified, will be had before the arbitrators, at the house of 0. E., in the town of, &c., on the day, of &c. Dated the day of, &c. . Yours, &c., A. B. To C. D. ARBITRATION AND AWARD. 69 § 115. Oath on Application to a Justice of the Peace for a Subpoenal You do swear that you will true answers make to all such ques- tions as I shall put to you, touching the necessity and propriety of my issuing a subpoena upon your present application for the same. § 116. Subpmna to appear before Arbitrators. Town of ,) g. County, j The People of the State of New York, to N. P., R S., and J. 0., Greeting : We command you, and each of you, personally to appear and at- tend at the house of O. K, in the town of , in said county, on the day of instant, at ten o'clock in the forenoon of that day, before E. F., L. M., and S. T., arbitrators chosen to determine a controversy, [or, certain matters in controversy,] between A. B. and C. D., then and there to testify in relation thereto, before said arbi- trators, on the part of the said A. B. Hereof fail not at your peril. Given imder my hand, this day of , 18 . G. H., Justice of the Peace. § 111. Oath of Witness before Arbitrators. You do solemnly sweai-, that the evidence you shall give to the arbitrators here present, on a controversy, [or, on certain matters in controversy,] between A. B. and C. D., shall be the truth, the whole truth, and nothing but the truth : So help you God. [ The oath may be varied according to form § 49, if required.^ § 118. Revocation, To E. F., L. M., and S. T., Esquires: Take notice, that I do hereby revoke your powers as arbitrators under the submission made to you by C. D. and myself, in writing [or as the case may J«,] on the day of 18 . A. B.' § 119. Notice of Revocation. To C. R: You are hereby notified that I have this day revoked the powers of E. F., L. M., and S. T., arbitrators chosen to settle the matters in 1 The statute doea not in terms rentier it necessary for a Justice of tlie Peace to require a party to an arbitration, applying for a sub- pcBna, to be sworn, but it is always best to administer the oath. 3 If the submission is under seal, th* instrument revoking it should likewise b« under seal. iO ' NEW clerk's assistant. controversy between us; and that the following is a copy of such reTOcatiou : \Jnsert the Hevocation.]^ Dated the day of , 18 . Yours, &o., A. B. § 120. Award. To all to whom these presents shall come, or' may concern: Send greeting, E. ¥., L. M., and S. T., to whom were submitted, as arbitrators, the matters in controversy existing between A. B., o^ &c., and C. D., of, &c., as by their submission in writing [or, by the condition of their respective bonds of submission, executed by the said parties, respectively, each to the other,] and bearing date the day of , A. D. 18 , more fully appears: Now, therefore, know ye, that we, the arbitrators mentioned in the said submission, [or, bonds,] having been first duly sworn according to law, and hav- mg heard the proofs and allegations of the parties, and examined the matters in controversy by them submitted, do make this award in writing ; that is to say : The said C. D. shall make, execute, and deliver, to the said A. B., on or before the day of instant, a good and suflScient assignment of a certain bond and mortgage, executed, &c., to the said C. D., &c. ; and the said A. B. shall pay, or cause to be paid, to the said C. D., the sum of dollars, 1'mmediately upon the execution and delivery of the said assignment; or: The said C. D. shall pay, or cause to be paid, to the said A. B., the sum of dollars, within ten days from the date hereof in full payment, discharge, and satisfaction, of and for all moneys, debts and demands, due, or owing from him, the said C. D., to the said A. B.; or: The said C. D. shall henceforth forever cease to prosecute a certain suit commenced by him, against the said A. B, in the Supreme Court of the State of New York, now pending and undetermined in the said court; and the said A. B. shall pay, or cause to be paid, to the said C. D., on or before the day of, &c., the sum of dollars, in full satisfaction of the costs, charges and expenses, incurred by the said C. D., in and about the prosecu- tion of his suit, as aforesaid.] And we do further award, adjudge and decree, that the said A. B. and C. D. shall, and do, within ten days next ensuing the date hereof, seal and execute unto each other, mutual and general releases, of all actions, cause and causes of action, suits, controversies, claims and demands whatsoever, for, or by reason of, any matter, cause, or thing, from the beginning of the world down to the date of the said bonds of arbitration, [or, the said submission.] In witness whereof, we have hereunto subscribed these presents, this day of , one thousand eight hundred and In the presence of ) E. F. G. H. I L. M. S. T. ARBlTRATIOSr AND AWARD. IJl § 121. Release to be executed by Parti/ to an Arbitration, when required in the Award. Know all men by these presents : That I, A. B., of the of , for and in consideration of the sum of one dollar to me in hand paid by C. D., of , and in pursuance of an award made by E. R, L. M., and S. T., arbitrators between us, the said A. B. and C. D., and bearing date the day of , one thousand eight hundred and , do hereby release, and forever discharge, the said C. D., his heirs, executors, and administrators, of and from aU actions, cause and causes of action, suits, controversies, claims and demands whatsoever, for, or by reason of, any matter, cause, or thing, from the beginning of the world down to the day of , one thousand eight hundred and . [^Insert the date of the bonds of arbitration, or of the stibmission.^ In witness whereof, I have hereunto put my hand and seal, this day of , one thousand eight hundred and In presence of ) A. B. [l. s.l G. H. f § 122. Affidavit of the Execution of the Arbitration Bond. County, ss: G. H., of said county, being duly sworn, deposes and says: that he was present, and saw A. B. sign, seal, and, as his act and deed, deliver the bond hereunto annexed; that the name A. B., subscribed to the said bond, is the proper and genuine signature of the said A. B. ; and that this deponent set his name as a subscribing witness to the same, at the time of its execution and delivery by the said A. B, as aforesaid : and further says not ' G. H. Sworn to, &c., \as in § 113.] § 123. Affidavit of the Execution of the Award. County, ss: G. H., of said county, being duly sworn, deposes and says : that he was present, and saw E. V., L. M., and S. T., sign, publish, and declare, their final award and arbitration in writing, between A. B., of, &c., and C. D., of, &c., bearing date the day of, &c., and hereunto annexed; that the names E. F., L. M., and S. T., sub- scribed to the said award, are the proper and genuine signatures of the said E. F., L. M., and S. T. ; and that this deponent set liis name as a subscribing witness to the said award, at the time of its execu- tion and publication, as aforesaid : and further says not G. H. Sworn to, &c., [as in § 113.] CHAPTER V. ASSIGNMENTS. PRACTICAL REMARKS. 1. In order to render an assignment valid, when made in good faith, it is only necessary that it should contain sufficient words to convey all the right, title and interest, of the assigTior, to the assignee, and assure to the latter the full and entire possession and enjoyment thereof 2. AH transfers, or assignments, of goods, chattels, or things in action, made in trust, for the use of the person making the same, are void as against the creditors, existing or subsequent, of such person.' 3. Every assignment of any estate, or interest, in lands, or in goods or things in action, or of any rents or profits issuing therefrom, made with the intent to hinder, delay, or defraud, creditors or other per- sons, is void." 4. An insolvent debtor may give a preference to one creditor, to the exclusion of all others, provided it be done in good faith ; and this, even after suit commenced against him by another creditor.' 5. If the assignor reserve to himself the power to revoke the con- veyance ; or to change the trusts, by giving a preference to other creditors at a future time ; or if he direct the surplus, after paying the preferred creditors, to be returned to him ; the conveyance wiU be void. The doctrine is well established, that the debtor must make an unconditional surrender of his eifects, for the benefit of those to whom they rightfully belong.* 6. An assignment, made by an insolvent debtor, of all his property, in trust to pay certain specified creditors, and then, without making provision for the remaining creditors, in trust to re-convey or re- assign the residue to the debtor, is void on its face as to the creditors 1 2 R. S. (3a ed.) 195, §1:6 Hill, 438. I * 14 Johnson, 458 ; 5 Cowen, 547 ; 11 Wett- a 2 R. S. (3tl ed.) 197, §§ 1-3. dell, 187 ; 6 Hill, 438 • S Johnson, 355 ; 6 Cowen, 287. | ASSIGNMENTS. 73 not provided for; and proof that there would be no surplus will not make it good/ 7. General assignments by an insolvent debtor, giving preferences to certain creditors, are upheld reluctantly by our courts, and they must be executed in perfect good faith, and an entire and absolute surrender of the debtor's property must be made for the payment of his debts." 8. An assignment by an insolvent debtor, in trust to pay preferred creditors, should not authorize the trustees named therein to sell property on credit.' 9. An assignment for the benefit of creditors, authorizing the assignee, in his discretion, to change the order of preference of the creditors, is fraudulent and void.' 10. Assignments of the property or effects of a limited partner- ship, made by such partnership when insolvent, or in contemplation of insolvency, and giving a preference to creditors, are void." 11. Where an assignment is made for the benefit of creditors, it must be accompanied by immediate delivery, either actual or implied." 1 2. Voluntary conveyances in trust for creditors are regarded with jealous}', but the question of fraudulent intent is always one of fact, and not one of law." 13. No higher rates of compensation should be given to trustees or assignees, by an assignment, than those allowed to executors, administrators, and guardians, for similar services.' 14. An action brought by an assignee of a chose in action, will be without prejudice to any set-ofiF, or other defence, existing at the time of, or before notice of the assignment." 15. Every assignment of any interest in land must be in writing." Assignments of mortgages should be acknowledged and recorded, in the same manner as direct conveyances of real estate. 16. An assignment of a mortgage by an individual, or by a corpo- ration, without a seal, is a valid transfer of the mortgage debt, though not' of the mortgase itself" 17. An assignment of a poHcy of insurance should always receive the assent of the insurers ; to be sigTiified in writing, if a company, by the President or Secretary. 1 8. The assignee of an insurance policy cannot recover for any loss in his own name, unless there be an express promise on the part of the company to be responsible ; even though the assignment be made with their consent." J 4 Barbour's S. C. Rep., 456 : 2 Comstock, 365. ' a 6 Hill, 438 ; 10 Paige, 229. s 9 Fnige, 405 ; 2 Comstock, 363. ■> 4 Barbour's S.,C. Rep., 546. 6 2 R. S. (3d ed.) 51, § 20. 1 Barbour's S. C. Rep., 210. ' 2 R. S. C3d ed.) 198, §4:8 Cowen, 406 ; 1 Wendell, 303 ; 7 Id., 438 ; 8 Id., 376 ; 11 Id., 251 ; 12 Id., 297 : 15 Id.. 212, 628 ; 16 Id., 520; 17 Id., 54, 492: 19 Id., 183, 614, 524; 20 Id., 118, 607 ; 23 Id., 653 : 24 Id., li?: 2^ Id., 396, 615; 26 Id., 511 ; 1 Hill, 317, 438 467 ; 4 Id., 271 ; 6 Id., 433, 438 : 3 Paige, 657 2 Barbour's S. C. Rep., 9. 8 2 Comstock. 365. » Laws of 1849, part II., title iii., 5 112. 10 2 R. S. (3d. ed.) 47, § 44 : Id., 194, S & ■1 I Denio, 620. 1' 3 Hill, 88. 74: KEYT clerk's assistant. FOEMS. § 1 24. Assignment to be JSndorsed on an Instrument. In consideration of the sum of dollars, to me in hand paid, by C. D., of, &c., the receipt whereof is hereby acknowledged, I do hereby transfer, assign and set over, to the said C. D., his heirs and assigns, all my right, title and interest, in and to the within instru- ment ; and I do hereby constitute the said C. D., my attorney, in my name, or otherwise, but at his own cost and charge, to take all legal measures which may be proper or necessary, for the complete recovery and enjoyment of the assigned premises. Witness my hand and seal, this day of , 18 . In presence of ) A. B. [l. s.] G. H. j § 125. Assignment hy a Firm, for the Benefit of Creditors. This indenture, made the day of , in the year , between A. B. and C. D., copartners, iinder the name, style, or firm, of B. & D., of the first part, and E. F., of, &c., of the second part : Whereas the said copartnership is justly indebted in sundry con- siderable sums of money, and has become unable to pay and dis-, charge the same with punctuality, or in full ; and the said parties of the first part are now desirous of making a fair and equitable distribu- tion of their property and effects among their creditors : Now, there- fore, this indenture witnesseth, that the said parties of the first part, in consideration of the premises, and of the sum of one dollar to them in hand paid, by the party of the second part, the receipt whereof is hereby acknowledged, have granted, bargained and sold, released, assigned, transferred and set over, and by these presents do grant, bargain and sell, release, assign, transfer and set over, unto the said party of the second part, and to his heirs and assigns, forever, aU and singular, the lands, tenements and hereditaments, situate, lying and being within the State of New York, and all the goods, chat- tels, merchandise, bills, bonds, notes, book accounts, claims, demands, choses in action, judgments, evidences of debt and property, of every name and nature whatsoever, of the said parties of the first part, more particularly enumerated and described in the schedule hereto annexed, marked " Schedule A" ; to have and to hold the same, and every part and parcel thereof, with the appurtenances, to the said party of the second part, his heirs, executors, administrators and assigns: In trust, nevertheless, and to and for the following uses, intents and purposes ; that is to say : that the said party of the second part shall take possession of all and singular the lands, tenements and ASSIGNMENTS. 75 hereditaments, property and effects, hereby assigned, and sell and dispose of the-^-sana«r"ttpeB-att• C. D. [l. s.] G. H. § 126. General Assignment. Know all men by these presents : That I, A. B., of, &c., for value received, have sold, and by these presents do grant, assign, and con- vey, unto C. D., of, &o., all the notes, accounts, dues, debts, and demands, specified in the schedule hereunto annexed, marked " Sche- dule A," to have and to hold the same unto the said C. D., and his executors, administrators, and assigns, forever, to and for the use of the said C. D. ; hereby constituting and appointing the said C. D. my true and lawful attorney, irrevocable, in my name, place, and stead, for the purpose aforesaid, to ask, demand, sue for, attach, levy, re- cover and receive, all such sum and sums of money which now are, or may hereafter become due, owing and payable, for, or on account of, all or any of the notes, accounts, dues, debts and demands, above assigned; giving and granting unto my said attorney, full power an.- luthority, to do and perform all and every act and thing whatsoever, requisite and necessary, as fully, to all intents and purposes, as I might or could do, if personally present, with full power of substitu- tion and revocation ; hereby ratifying and confirming all that the said 1 The above form may be readily varied, If the assignment is intended to be made for ihe general benefit of creditors, without preference; or if there are to be two or more classes of preferred debts. In order to save trouble and expense, in passing the title of real estate, deeds regularly acknow- ledged and executed, ought to accompany an assignment embracing real property. ASSIGNMENTS. 77 attorney, or his substitute, shall lawfully do, or cause to be done, by virtue hereof. In witness whereof, I have hereunto set my hand and seal, the day of , one thousand eight hundred and Signed, sealed, and delivered, ) in the presence of > E. F. ) A. B. [l. 8.] § 127. Assignment of Bond. Know all men by these presents :" That I, A. B., of, &c., of the first part, for and in consideration of the sum of dollars, lawful money of the United States of America, to me in hand paid by C. D., of, (fee, of the second part, the receipt whereof is hereby acknowledged, have bargained, sold, and assigned, and by these presents do bargain, sell, and assign, unto the said party of the second part, his executors, administrators, and assigns, a certain written bond or obligation, and the condition thereof, bearing date the day of , one thousand eight hundred and , executed by E. F. to the said A. B., and all sum and sums of money, due, or to gTOW due thereon : And I do hereby covenant mth the said party of the second part, that there is now due on the said bond or obligation, according to the condition thereof, for principal and interest, the sum of dollars ; and I hereby authorize the said party of the second part, in my name, to ask, demand, sue for, recover, and receive, the money due, and that may grow due thereon, as afore- said. In witness, (fee, [as in § 126.] § 128. Assignment of Judgment. This indenture, made the day of , one thousand eight hundred and , between A. B., of, (fee, of the first part, and C. D., of, (fee, of the second part: Whereas the said party of the first part, on the day of July, one thousand eight hundred and , recovered by judgment, in the Supreme Court of the State of New York, against E. F., of, (fee, the B\un. of dollars and cents, damageg-.and costs, [or, yv;^; dollars of debt, and dollars for-^inages and costs :] IjpK there- fore, this indenture witnesseth, thatthfi said party of the first part, in consideration of dollars,gto hiifl duly paid, hath sold, and by these presents doth assign, transfer, arid sfet over, unto the said party of the second part, and his assigns, the said judgment, and all sum and sums of money that may be had, or obtained, by means ^hereoi, or any proceedings to be had thereupon. And the said party of the first part doth .hereby: .constitute and appoint the said party of the second part, and his assies, his true and lawful attorney, and attor- 78 NEW clerk's assistant. neys, irrevocable, with power of substitution and revocation, for the use, and at the proper cost and charge of the said party of the second part, to ask, demand, and receive, and to sue out executions, and take all lawful ways for the recovery of the money due, or to become due, on the said judgment; and on payment, to acknowledge satisfaction, or discharge the same ; hereby ratifying and confirming all that his said attorney or attorneys shall lawfully do, or cause to be done, in the premises. And the said party of the first part doth covenant, that there is now due on the said judgment the sum of dollars, and that he will not collect or receive the same, or any part thereof, nor release or discharge the said judgment, but will own and allow all lawful proceedings therein ; the said party of the second part saving the said party of the first part harmless, of and from any costs and charges in the premises. In witness whereof, the party of the first part hath hereunto set his hand and seal, the day and year first above written. Sealed and delivered in the ) presence of > G. H. ) A. B. [l. s.] § 129. The Same, in a Shorter Form. Supreme Court: A. B. ) Judgment for $1000 on a bond, dated first May, against > 1845. Conditioned for the payment of $500 and E. F. ) interest-7-costs taxed at $21,50. Judgment docketed August 2, 1845, in County Clerk's Office. In consideration of dollars, to me paid, I do hereby sell, assign, and transfer, to C. D., the judgment above mentioned, for his use and benefit; hereby authorizing him to collect and enforce pay- ment thereof, in my name, or otherwise, but at his own costs and charges ; and covenanting that the sum of dollars, with the interest from the day of , in the year , besides the costs, is due thereon. In witness, &c., [as in § 126.] § 130. The Same, in Another Form. County Court: , A. B. 1 Judgment docketed 31st July, 1847, for $210, against > 27, damages and costs. E. F. ) For value received, I do hereby assign, transfer and set over, the above mentioned judgment, to C. D., for his use, and at his risk, costs and charges, in all respects. Dated the day of , 18 . A. B. ASSIGNMENTS. 79 ^ 131. Assignment of Bond and Mortgage: Know all men by these presents : That I, A. B., of, &c., of the first part, in consideration of the sum of dollars, lawful money of the United States, to me in hand paid by C. D., of, (fee, of the second part, the receipt whereof is hereby acknowledged, have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, transfer and set over, unto the said party of the second part, a certain indenture of mort- gage, bearing date the day of ; one thousand eight hundred and , made and executed by E. F., and M. his wife, of, &c., to the said party of the first part, together with the bond or obligation therein described, and the money due or to grow due thereon, with the interest: to have and to hold the same, unto the said party of the second part, his executors, administrators, and assigns, for their use and benefit; subject only to the pi-oviso in the said indenture of mortgage mentioned : And I do hereby make, con- stitute and appoint, the said party of the second part, my true and lawful attorney, irrevocable, in my name, or otherwise, but at his own proper costs and charges, to have, use, and take, aU lawful ways and means, for the recovery of the said money and interest; and, in case of payment, to discharge the same, as fully as I might, or could do, if these presents were not made : And I do hereby covenant, to and with the said party of the second part, that there is now due and owing upon the said bond and mortgage, the sum of dollars, with interest from the day of , 18 ; and that I have good right to sell, transfer and assign, the same, as aforesaid. In witness, &c., [as in § 126.] •• § 132. The Same, in a Shorter Form. E. R, and M., his wife, ) Mortgage dated the day of, vs. y &c., executed by E. F., and M., his wife, A. B. ) to A. B., on certain premises described therein, being part of lot No. , in the town of , in the county of ; recorded in County Clerk's office, in book No. of Mortgages, pages , &c. Bond bearing date the day aforesaid, executed by E. F., to A. B., aforesaid, in the penal sum of dollars, conditioned for the payment of doUars, secured by the above mortgage, on the day of , 18 , with interest In consideration of dollars, to me paid, by C. D., o^ &c., I do hereby assign, transfer and set over, unto the said C. D., the mortgage above described, and the bond accompanying the same, as aforesaid, for his use and benefit; hereby authorizing him to collect and enforce payment thereof, in ray name, or otherwise, but at his own costs, and charges. And I do hereby covenant that the sum of dollars, with mterest from the day of last 80 NEW clerk's assistant. past, is now due and owing on the said bond and mortgage ; and that I have good right to sell and assign the same. In witness, &c., [as m § 126.] § 133. The Same, Endorsed on Mortgage. In consideratidn of dollars, to me in hand paid, by C. D., of, &c., I do hereby sell, assign, transfer, and set over, unto the said C. D., the within indenture of mortgage, together with the bond aocompanjang the same, for his use and benefit; hereby authorizing him [as in § 132, to the end.J § 134! Assignment of Bond and Mortgage, as Collateral Security. This indenture, &e., [or, In consideration of, &c., as in either of the forms immediately preceding, and then add :'\ But this inden- ture [or, this assignment] is, nevertheless, made upon this express condition, that if the said A. B., his heirs, executors or administrators, shall well and truly pay, or cause to be paid, unto the said C. D., his heirs, executors, administrators, or assigns, the sum of dollars, on or before the day of ,18, with interest from the date hereof, this indenture [or, this assignment] shall be void and of no effect ; it being made for the purpose of securing the payment of the said sum of dollars, with interest, as aforesaid, and for no other purpose whatever : And in case the said C. D., his heirs, executors, administrators, or assigns, shall collect and receive' the money due on said mortgage hereby assigned, he, or they, shall, after retaining the sum of dollars, with the interest thereon, and his, or their, reasonable costs and charges in that behalf expended, pay the surplus, if any there be, to the said A. B., his heirs, executors, administrators, or assigns. In witness whereof, the said parties have hereto set their respective hands and seals, the day and year first above written, [or, the day of , 18 .] Signed, sealed and delivered, ) A. B. [l. s.] in presence of ) C. D. [l. s.] G. H. § 135. Assignment of Lease. Know all men by these presents : That I, A. B., o^ &c., for and in consideration of the sum o£ dollars, lawful money of the United States, to me paid, by C. D., of, &c., have sold, and by these presents do grant, convey, assign, transfer and set over, unto the said C. D., a certain indenture of lease, bearing date the day of , in the year one thousand eight hundred and , made by L. M., of, &c., to me, the said A. B., of a certain dwelling- ASSIGNMENTS. $X house and lot, situate in, &c., with all and singular the premises therein mentioned and described, and the buildings thereon, together with the appurtenances ; to have and to hold the same imto the said 0. D., his heirs, executors, administrators, and assigns, from tha day of next, for and during all the res^ residue, and remainder, of the term of years mentioned in the said in- denture of lease; subject, nevertheless, to the rents, covenants, conditions, and provisions, therein also mentioned : And I do hereby covenant and agree, to and with the said C. D., that the said assigned premises now are free and clear, of and from all former and other gifts, grants, bargains, sales, leases, judgments, executions, ba«k rents^ taxes, assessments and incumbrances, whatsoever. In witness, &c., [as in § 126.] § 136. The same, hy Endorsement. In consideration of the sum of dollars, to me in hand paid, by C. D., of, &c., the receipt whereof I hereby acknowledge, I have bargained, sold, assigned and set over, and by these presents do bar- gain, sell, assign and set over, unto the said C. D., his heirs and assigns, the within written indenture of lease, and all my estate, right, title, interest, claim, property and demand, of, in and to, the lands, tenements, hereditaments and premises, therein mentioned, which I now have, by means of the said indenture, or otherwise; subject, nevertheless, to the rents and covenants in the said inden- ture contained- In witness, &c., [as in § 126.] § 137. Assignment of Contract for the Sale of Meal JEstate. Know all men by these presents: That I, A. B., of, &c., for and in consideration of the sum of dollars, lawful money of the United States, to me paid, by C. D., of, &c., have sold, and by thesfr presents do sell, transfer, assign and set over, unto the said C. D., a contract for the sale of certain real estate, being part of lot No. in the town of , in the county of , aforesaid, \or, situate in, (fee, and described as follows: giving the description infidl;} which said contract was made and executed by E. R, of, &c., to the said A. B., and bears date the day of ,18 : to have and to hold the same unto the said C. D., his heirs, executors, adminis- trators and assigns, for his and their use and benefit, forever; subject^ nevertheless, to the covenants, condition and payments, therein men- tioned:' And I hereby fully authorize and empower the said C. D., upon his performance of the said covenants and conditions, to demand and receive of the said E. F. the deed covenanted to be given in the said contract, in the same manner, to ail intents and purposes, as I myself might, or could do, were these presents not executed In witness, &c., [as in § 126.] g 82 NEW clerk's assistant. § 138. The Same, by Endorsement. In consideration of the sum of dollars, to me in hand paid, by C. D., of, &c., the receipt whereof I hereby acknowledge, I have bargiiined, sold, assigned and set over, and by these presents do bar- gain, sell, assign and set over, unto the said C. D., his heirs and assigns, the within contract, and all my estate, right, title, interest, claim, property and demand, of, in and to, the same, and the promi- ses therein described; subject, nevertheless, &c., [as m§ 137, to the end.^ § 139. Assignment of Bail Bond. Know all men by these presents : That I, A. P., the Sheriff within named, do assign and set over, to A. B., the plaintiff therein named, at his request, the within bail bond, or obligation, pursuant to the Btatute in such case made and provided. Dated , this day of , 18 . Signed, sealed and delivered, ) in the presence of f A. P., Sheriff, [l. s.l G. H. § 140. Assignment of Partnership Property by one Partner to another, to Close the Concern. Whereas, a copartnership has heretofore existed, between A. B. and C. D., both of the town of , in the county of , under the firm name of B. & D., which said copartnership is hereby dis- solved and determined: Now, therefore, this indenture, made this day of , in the year , by and between the said A. B. of the one part, and the said C. D. of the other pari, witnesseth : Tliat the said A. B. doth hereby sell, transfer, assign and set over, unto the said C. D., his moiety of all the stock in trade, goods, merchandise, effects and property, of every description, belonging to, or owned by, the said copartnership, wherever the same may be ; together with all debts, choses in action, and sums of money, due and owing to the said firm, from any and all persons whomsoever, to hold the same to the said C. D., and his assigns, forever, in trust, for the following purposes, namely : That the said C. D. shall sell and dispose of all the goods, propert}', and effects, belonging to the said firm, at such time and in such manner as he may think prudent; and shall, with reasonable diligence, collect all the debts and sums of money due and owing to the said firm ; and shall, out of the proceeds of the said sales, and with the moneys thus collected, pay and discharge all the debts and sums of money now due and owing from the said firm, as far as the proceeds of said sales, and the sums of money collected, will go ; and ASSIGNMENTS. Q3 after fully satisfying all demands against the said firm, if there be any surplus, shall pay over one moiety thereof to the said A. B., or his representatives. And the said A. B. doth hereby constitute and appoint the said C. D., his attorney, irrevocable, in his, the said C. D.'s, own name, or in the name of the said firm, to demand, collect, sue for and receive, any and all debts and sums of money due and owing to the said firm; to institute and prosecute suits for the recovery of the said debts, or to compound the same, as he may judge most expedient; to defend any and all suits against the said firm; to execute all such discharges, releases and acquittances, as may be necessary; aiid, generally, to do all such acts and things as may be necessary or proper, for the full and complete settlement of all business and concerns of the said copartnership. And the said C. D., for himself, and his heirs, executors and administrators, hereby covenants, to and with the said A. B., and his representatives, that he will sell and dispose of all the part- nership property and effects, to the best advantage; that he will use his best diligence and endeavors to collect all debts and sums of money due and owing to the said firm; and that he will truly and faithfully apply the proceeds of said sale, and the moneys collected, to the payment, discharge and satisfaction, of all debts and demands against the said firm, as far as the same will go; and after discharging all such debts, will pay over to the said A. B., or his representatives, one moiety of any surplus that may remain; and further, that he will keep a full and accurate account of all moneys received by him, for goods sold, or debts collected, as well as of all moneys paid out, and will render a just» true, and fidl account thereof, to the said A. B., or his representatives. And the said A. B., for himself, his heirs, executors and adminis- trators, covenants to and with the said C. D., his heirs, &c., that if it shall be found that the debts due and owing from the said firm exceed the amount of moneys received from the sale of the said partnership property and effects, and the debts collected, he ■will pay unto the said C. D., or liis assigns, one moiety of any balance that may then be found due and owing from the said firm In witness, &c., [as in § 134.] § 141. Assignment by a Sheriff, to Ms Successor in Office. This indenture, made this day of, &c., between G. H. C^ Esq., former Sheriff of the county of ' , of the first part, and A. P., Esq., the present Sheriff thereof, of the second part, wit- nesseth: That the said G. H. C, the said former Sheriff, doth, by and with these presents, deliver to the said A. P., his said successor, the jail of the said county, with its appurtenances, with the pro- perty of the said county therein, all the prisoners confined thero u KEw clerk's assistant. in, all process, orders, rules, commitments, and all otter papers and documents, in the custody of the said Gr. H. C, as former Sheriff, as aforesaid, authorizing or relating to the confinement of such prisoners, and each and every of them: and in those cases where any such process shall have been returned, a statement in ■writing of the contents thereof, and when returned ; all writs, sum- monses, and complaints, to be served, and all mesne process, and all precepts and other documents for summoning of a gTand or petit jury, now in the hands of the said G. H. C, Esq., and which have not yet been fully executed by him; all executions, attach- ments, and final process, now in the hands of the said G. H. 0, except such as he has executed, or has begun to execute, by the collection of money thereon, or by a levy on property, in pursu- ance thereof The delivery is made under and in pursuance of the Revised Statutes in that behalf enacted; and the said Q. H. C. doth also herein and hereby recite and certify the property, process, documents and prisoners, delivered, specifying herein the process, or other authority, by which each of those prisoners was committed and is detained, and whether the same be returned or delivered to the said A. P., the said present Sheriff, (who hath on the duplicate hereof, acknowledged in writing, the receipt of such property, process, documents and prisoners, herein specified;) that is to say: 1. The property herewith delivered is as follows: \iinder each head give the particulars and details, dates, names of parties, des- cription of process, courts, accounts, tfcc] 2. The process herewith delivered is as follows: 3. The documents herewith delivered are as follows: 4. The prisoners herewith delivered are as follows : [name them, with the dates of commitment, offences, d;c.^ In witness whereof, as well the said former, as the said pre- sent Sheriff, have hereunto interchangeably set their hands and Seals, the day and year first above written.' Sealed and delivered ) in presence of J C. D E. F G. H, A. P, . C. [l. s.] '. [l. s.] §. 142. Assignment of a Debt, or Wages. Know all men by these presents : That I, A. B., of, &c., for and in consideration of the sum of dollars, to me paid, by C. D., of, &c., the receipt whereof is hereby acknowledged, have sold, and by these presents do sell, assign, transfer and set over, unto the said >The receipt endorsed on the duplicate, may be as follows: " I hereby aclmowleilge that I have received of G. H. C, late Sheriff, of, &c., the property, process, documents and prisoners, specified in the within instru- ment. Dated, &c. A. P., Sheriff of the county of ." See, 2 R. S. (3d ed.) 534, § 87. ASSIGNMENTS. g5 C. D., a certain debt due me from E. F., amounting to the sum of dollars, for goods sold and delivered, [or, work, labor and services,] with full power to sue for, collect and discharge, or sell and assign the same, in my name, but at his own costs and charges: And I do hereby covenant, that the said sum of dollars, is justly due as aforesaid, and that I have not done, and will not do^ any act to hinder, or prevent, the collection of the same by the said C. D. In witness, &c., [as in § 126.] § 143. Assignment of Policy of Inmrance. Know all men by these presents : That I, A. B., of, Amended Constitution of New York, Art. viii., 55 4, 6, 8. BANKS AND CORPORATIONS. 93 6. After the first day of January 1860, the stockholders in every corporation, or association for banking purposes, issuing bank notes, or paper credits, to circulate as money, will be individually liable, to the amount of their respective shares of stock, for all debts and liabi- lities contracted subsequent to that day.' 7. The General Banking Law is contained in chap. 260, Laws of 1838; amended in chap. 363, Laws of 1840; chap. 46, Laws of 1841; chap. 160, Laws of 1847; Id., chap. 419; and chap. 340, Laws of 1848. In the volume of Session Laws for 1841, at page 351, the original law may be found, as amended by subsequent enactments, together with other statutes affecting associations formed under it. Associations formed under this law are liable to taxation.' 8. The provisions of law applicable to religious incorporations, are contained in volume III. of the Eevised Statutes, (3d ed.,) p. 244, et seq. The treasurer of every religious corporation singly, or the trustees or persons entrusted with the care and management of the temporalities of a church, congregation, or religious society, already incorporated, in the cities of New York, Albany, or Schenectady, or a majority of them, are required by the act of 1813, (section 10,) to exhibit trienniaUy to one of the Justices of the Supreme Court, or a Judge of the Coui-t of Common Pleas, or County Judge of the county in which the church, congregation, or society is situated, an account and inventory of all the corporate estate, and of the annual revenue arising therefrom ; and if this duty be neglected for the space of six years, and if the account and inventory are not then exhibited, and tlie certificate of the officer, to whom the same is presented, endorsed thereupon, that the real and personal estate of the corporation does not, or has not, for the preceding six years, exceeded the sum which it is entitled by law to receive, the trustees, or persons entrusted as aforesaid, cease to be a body corporate. 9. County Courts have the power to permit the mortgage or sale of the real property of a religious corporation, situated within the county, on the application of such corporation, and to authorize the appropriation of the proceeds thereof.' 10. The general law providing for the incorporation of bridge companies, may be found at chap. 259, Laws of 1848. 11. The act to authorize the formation of corporations for manu- facturing, mining, mechanical or chemical purposes, is contained in the Session Laws of 1848, chap. 40. 12. Chap. 319, Laws of 1848, authorizes the incorporation of benevolent, charitable, scientific and missionary societies. 13. Under the new Constitution of this State, no corporation ex- 1 Amended Constitution of New Yoric, Art, viii., §7. a a Wenddl, 9; 23 Id., 103; 1 Hill, 616; 2 Id., 241 ; 3 Id., 389 j 4 Id., 442 ; 7 Id., 604 ; 1 Denio, 9 ; 2 Id., 380. s Laws of 1849, (Code of Practice,) chap. 438, J 30, sub. 8. 94 NEW clerk's assistant. cept for municipal purposes, can be created by special act, where the objects of the corporation can be attained under a general law. Hereafter corporations may sue or be sued, like natural persons.' 14. After the dissolution of a corporation, the stock cannot be transferred so as to pass the title." 15. Certificates of the incorporation of religious societies may be proved, or acknowledged, before anj' officer authorized to take acknowledgments, or proofs of conveyances of real estate." 16. Whenever any church, congTCgation, or reUgious society, shall omit to choose officers, the old officers may hold over until others are chosen, provided an election, to supply such omission, be held within one year after its occurrence.* 17. A "call" from a Presbyterian congregation, drawn in the manner prescribed by the discipline of that church, and signed by three elders and a trustee, does not bind them to pay the salary, but is the act of the cono-reo-ation.' 18. The-seal of a corporation maybe affixed, or impressed, directly on paper, vrithout the use of wa.x or a wafer." 19. It is not necessary that the proceedings of a corporation, at a corporate meeting, should be authenticated by seal' FORMS. § 153. Transfer of Stock in a Bank, Company/, or Corporation. Know all men by these presents : That I, A. B., of, &c., for value received, have bargained, sold, assigned and transferred, and by these presents do bargain, sell, assign and transfer, unto C. D., of, 8| «§ 1, 2. < I.iiwsiir IRIl, Chan. I3.S. 5 3. ' li riill, r,3i). • Laws of 1848, chap. 197. ' 1 Barbour's S. C. Rep., 681 BANKS AND CORPORATIONS. 95 § 154. Power to Transfer. Know all men by these presents : That I, A. B., of, &c., do here- by constitute and appoint E. F., ofj &c., my true, and. lawful attor- ney, for me, and in my name and behalf, to sell, assign and trans- fer to C. D., of, &c., the -whole, "or any part of, one hundred shares of capital stock, standing in my name, on the books of the Bank, [or, Company,] and for that purpose to make and execute all necessary acts of assignment and transfer. In witness, &c., [as in § 153.] § 155. Proxy. Know all men by these presents : That I, A. B., of, &c., do here- by constitute and appoint E. F., of, cfec, my attorney and agent, for me, and in my name, place and stead, to vote as my proxy, at any election of directors of the Bank, [or, Company,] accord- ing to the number of votes I should be entitled to vote, if then per- sonally present. In witness, &c., [as in § 153.] § 156. Affidavit of Stockholder, to he made before any Officer authorized to administer Oaths, and attached to the Proxy. I, A. B., do solemnly and sincerely sVvear, [or, affirm,] that the shares on which my attorney and agent, in the above proxy, is au- thorized to vote, do not belong, and are not hypothecated to, the [name the corporation for which the election is to be held;^ and that they are not hypothecated, or pledged to, any other corporation, or person, whatever; that such shares have not been transferred to me, for the purpose of enabling me to vote thereon at the ensuing elec- tion, and that I have not contracted to sell or transfer them, upon any condition, agreement, or understanding, in relation to my man- ner of voting at the said election. Sworn to, this day of , [ A. B. 18 , before me, j G. H. Commissioner of Deeds, (fee. § 15V. Inspector's Oath. I do solemnly swear [or, affirm] that I Avill execute the duties of an Inspector of the election now to be held, with strict impartiality, and according to the best of my ability. Taken and subscribed before me, ) L. M. this day of ,18 ,) G. H., Justice of the Peaca 96 NEW clerk's assistant. § 168. Oath of StocMiolder when Challenged, to he admin- istered by an Inspector. You do swear, [or, affirm,] that the shares on which you now offer to Tote, do not belong, and are not hypothecated to, the [name the corporation for which the election is held;'\ and that they are not hypothecated, or pledged to, any other corporation, or person, what- ever; that such shares have not been transferred to you, for the purpose of enabling you to vote thereon, at this election ; and that you have not contracted to sell or transfer them, upon any condition, agreement, or understanding, in relation to the manner of voting at this election. § 159. Oath of Proxy when Challenged, to he administered as in § 158, You do swear, [or, affirm,] that the facts stated in the affidavit annexed to the proxy, upon wMch you now offer to vote, are true, according to your belief; and that you have made no contract or agreement, whatever, for the purchase or transfer of the shares, or any portion of the shares, mentioned in such proxy. § 160. Affidavit of President, or Cashier, to Statement of un- claimed Dividends or Deposits. State of New York, ) County, ) J. F. S., of said county, being duly sworn, deposes and says, that he is the cashier [or, president] of the Bank, and that the above [or, annexed] statement of dividends [or, deposits] re- maining unclaimed in the said' bank for the space of two years next preceding the first day of September instant, is in all respects just and true, according to the best of the knowledge and belief of this deponent. J. K S. Sworn to, &c., [as in § 156.] § 161. Power to Receive Dividend. Know all men by these presents: That I, A. B., of, &c., do authorize, constitute, and appoint, E. R, of, &c., my attorney, to receive from the Bank, [or, company,] the dividend now due on all stock standing in my name on the books of the said bank, [or, company,] and receipt for the same ; hereby ratifying and confirming all that may lawfully be done in the premises, by virtue hereof. Witness my hand and seal, this day of , 18 . Signed, sealed, and delivered, ") in presence of J- G. H. J A. B. [l. s.] BANKS AND OORPOBATIONS. fff § 162. Certificate of Association Formed wider the General Banking Law. StateofNewYork, ) g. County, j We, whose names are hereunto annexed, do hereby certify : That we have associated together, for the purpose of establishing an office of discount, deposit, and circulation ; that the name assumed to dis- tinguish such association, and to be used in its dealings, is " The ;" that the operations of discount and deposit, of such association, are to be carried on at the village of , in the said county ; that the amount of the capital stock of the same is two hundred thousand dollars, and is divided into two thousand shares; and that the following are the names and places of residence of the shareholders, and the number of shares held by each of them, respec- tively: A. B., of , one hundred shares, C. D., of , one hundred shares ; E. R, of , one hundred shares ; &o. &c. : And we do further certify, that such association will commence its operations on the first day of May next, and that it wUl terminate on the first day of May, in the year 1 8 . Witness our hands and seals, this day of 18 . Signed and sealed in ) A. B. [l. b. the presence of j C. D. [l. s. S. T. E. F. [l. s. &c., &e. § 163. Proof of the Execution of the foregoing Certificate. County ss : On this day of , IS , personally appeared before me- S. T., to me known, 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 A B., 0. D., E. F., &c., (fee, and knew them to be the persons who executed the above certificate; that he was. present and saw them, and each of them, sign, seal, and execute the same, and that they, each and every of them, acknowledged the execution thereof to him: whereupon he became the subscribing* witness thereto. 7 G. H., Justice of the Peace. \ 08 KEW clerk's assistant. § 164. Certificate of tlie Formation of a Manufacturing Corpora- Hon, to he Made, Signed, and Acknowledged, before any Officer competent to take the Acknowledgment of Deeds} State of New York, ) g. County, j We, whose names are hereunto annexed, do hereby certify, that we have associated together as a manufacturing corporation, to con- tinue in existence till the day of ,18 , [not to exceed fifty years^ for the purpose of carrying on, and conducting, the manufac- ture of glass, \or, cotton and finen goods, &c., &c. :] that the corpo- rate name of the said company is " The ;" that the amount of the capital stock thereof is one hundred thousand dollars, and is divided into one thousand shares ; that the number of trustees of the said company is nine ; and that the following are the names of the trustees who will manage its concerns for the first year, to wit : A. B., C. D., E. F., &c., &c. And we do further certify, that the manu- facturing operations of the said company will be carried on at the city [or, town] of , in the county of , aforesaid. Dated this day of , 18 . Signed and acknowledged before ~] A. B. me, by the gaid A. B., C. D., C. D. E. F., &c., &c., each and every y E. F. of them, this day of 18 G. H., County Judge of ' county. &c., ho. § 165. Certificate of Incorporation of an Episcopal Church. To all whom these presents may concern : We, whose names and seals are affixed to this instrument, do hereby certify, that on the day of , in the year 18 , the male persons of full age worsluping in the school house of school district number , in the town of , in the county of , and State of New York, [or, in their house of public worship, in the town of , in the county of , called St John's Church ; or, as the fact may Je,] in which congregation divine worship is celebra- 'ted, according to tlie rites of the Protestant Episcopal Church in the State of New York, and wliich is not already incorporated, met at their place of worship, aforesaid, for the purpose of incorporating themselves as a religious society, under the acts of the Legislature of the State of New York, and in pursuance of notice duly given to the said congTCgation, in the time of morning service, on two Sundays previous to such meeting, that the male persons of full age belonging to said congregation, would meet at the time and place aforesaid, for the purpose of incorporating themselves, and of electing two Church 1 The original musl be filed in the Clerk's I he carried on, and a duplicate in the office of office of the county la which the business is to 1 the Secretary of State. BANKS AND COnPOEATIONS. gj Wardens and eight Vestrymen: And we further certify, that the Reverend A. B., being Rector of said Church, presided at the said meeting, [or, if there be no Rector, say: there being no Rector of the said congregation, or church, the undersig-ned, L. M., was, by a mar jority of the said persons so met, called to the chair, and presided at the said meeting :] And we further certify, that at the said meeting, C. D. and E. F. were duly elected Church Wardens of the said coiv gregation and church, and 0. P., S. T., cfec, [name eight persons^ were duly elected Vestrymen ; that Tuesday in Easter Week, \or, as the case may 6e,] was, by the said meeting, fixed on as the day on which the said offices of Church Wardens and Vestry- men should annually thereafter cease, and their successors in office be chosen ; and that the said meeting determined and declared that the said church and congregation should be known in the law by the name of " The Rector, Church Wardens, and Vestrymen of St John's Church, in the town of , in the county of ." In testimony whereof, we, the said A. B., Rector, [or, L. M.,] who presided at the said election of Wardens and Vestrymen, and R F. and S. T., who were present and witnessed the progeeding-s aforesaid, have hereunto subscribed our names, and affixed our seals, this day of , in the year of our Lord one thousand eight himdred and } Signed and sealed ) A. B., Rector, [l. s." in presence of J R. F. [l. s. G. H. S. T. [l. s.' M.N. § 166. Certificate of Incorporation of other Religious Societies. State of New York, ) County, J We, the undersigned, two of the elders, [or, two of the members,] of the church [or, congregation; or, rehgious society] hereafter mentioned, do hereby certify, that on the day of instant, the male persons of full age, belonging to a church [or, con- gregation ; or, religious society] in which divine worship is celebra- ted, according to the rites of the church, and not already incorporated, met at the place of public worship heretofore occupied by the said church, [or, as aforesaid,'] in the town of , in said county, for the purpose of incoi-porating themselves, and did then and there elect, by plurality of voices, A. B., C. D., and E. F., [not less than three, nor more than nine,] as trustees of the said church, [or, as aforesaid;] and the said persons did then and there also de- termine by the like plurality of voices, that the said trustees and 1 The certificate mu^t be acknowledged, or | worsliip is situated. For the forma, see cha]^ proved, before a. Justice ot'liieSuiu'eiiie Court, ter I., and § ItiJ, ante. or Judge of the cou.jiy in wtiicii the place ol^ [ Mo HBW clerk's assistant. (sheir successors should forever hereafter be called and known by the iame, Or title, of " The Trustees of the ." Witness our hands and seals, this day of , 18 .' Signed and sealed in the ) L- M. [l. s.^ presence of ^ tt r_ _ 8. T. 1 seals, this day oi ,1° • : ) L. M. [i.. s.] C G. H. [l. s.] § 167. Triennial Meport of a Religious Corporation. To tJie Hon. J. W. E., one of the Judges of the Supreme Court of the State of New York: The undersigned, the Kector, Church Wardens, and Vestrymen of St Mark's Church, [or, the Trustees of the First Baptist Society of ,] a religious corporation, situate in the city of , in the State of New York, respectfully report, that the following is a faithful, true, and correct account and inventory of all the estate, both real and personal, belonging to said church [or, congregation; or, tooiety,] at the time of the eSubition of this report, to wit : One ohurch edifice, and lot on which the same is situate, known by the street numbers 67 and 69, on street, in said city of , and valued at dollars. One parsonage and lot, known as No. 50 street in said city of , and valued at dollars. [Fnaert here all the parcels and items of the real and personal estaie.'\ And the undersigned further report that the following is a just and correct account of the annual revenue arising from the real and personal estate aforesaid, from the day of , 1847, to the day of ,1850, to wit: [Insert here the reve- nue for each year separately.^ Dated at , the day of , 1850. C. S. R, Rector. J T}"' [• Churchwardens. B.J.,' } a. T., |- Vestrymen. &c. &c. ) < State of New York, ) . City and County of New York, j 0. S. R, R R, &c., &c., being duly sworn, depose and say, and each for himself deposeth and saith, that he has read [or, heard read] the foregoing report by him signed, and that the same is in aU.respecta faithful, just and true, to the best of his knowledge and belief! Sworn [or, aflSrmed] to, this — day ) C. S. R, •f ,18, before me, j &c. (fee. J. W. E., Judge of the Supreme Court ■ Far Torm of a certificate of acknowledgment, see chapter L, and § 163, ante. BANKS AND CORPORATIONS. 101 § 168. Application for permission to Mortgage or Sell the Real Estate of a Religious Corporation. To the County Court of County : The undersigned, trustees of the Society of the town of , in said county, \or, as the style or name of the corporation may 5e,] respectfully represent, that \here state concisely the reasons for making the application, and the manner in which the proceeds are intended to be appropriated^ Wherefore, the undersigned request that an order may be made and entered by this honorable court, authorizing them to mortgage [or, sell] the property aforesaid, upon the terms and in the manner aforesaid, and that the proceeds of such mortgage \or, sale] may be appropriated as above specified. Dated at , the day of , 1850. p -p.'' f Trustees of the Society . » of the town of State of New York, ) g^. County, j A. B., C. D., &c., &c., being duly swom, depose and say, and eaoli for himself deposeth and saith, that he has read [or, heard read] the foregoing application by him signed, and that the facts and circun»- stances thereia stated and set forth are just and true, to the best of his knowledge, information and belief Sworn \or, affirmed] to, this day ) A. B. of 1850, before me, [ C. D. J. P. H., County Judge. &c. 1 Coiii9i.ock, 413. » 7 Hill, 444. ' The usual form of accepting, is to writa the word *' Accepted," with the name of the acceptor, across the face, or on, the back of the bill or draft. 106 KEW olere's assistant. § 171. A Set of Bills. No. 139. — Ex. £250 stg. New Yoke, May 1, 1845. Thirty days after sight of this, my first of exchange, (second and third unpaid,) pay to Messrs. G. W. & Co., or order, two hundred and fifty pounds sterling, value received, and charge the same to account of A. B. To Messrs. T. W. & Co., London. No. 139. — Ex. £250 stg. New Tokk, May 1, 1845. Thirty days after sight of this, my second of exchange, (first and third unpaid,) pay to Messrs. G. W. & Co., or order, two hundred and fifty pounds sterling, value received, and charge the same to account of A. B. To Messrs. T. W. & Co., London. No. 139. — Ex. £250 stg. New York, May 1, 1845. Thirty days after sight of this, my third of exchange, (first and second unpaid,) pay to Messrs. G. W. & Co., or order, two hundred and fifty pounds sterling, value received, and charge the same to account of A. B. To Messrs. T. W. & Co., London. § 172. Promissory JSTote, Negotiahle} $100. Thirty days after date, I promise to pay C. D., or bearer, [or, order,] one hundred dollars, for value received. Albany, May 1, 1847. A B. § 173. The Same, Joint and Several $200. Ninety days from date, for value received, we, or either of us, promise to pay C. D., or bearer, [or, order,] two hundred dollars. A. B. Albany, May 1, 1847. E. R § 174. JVote, not Negotiable. $50. Three months after date, I promise to pay C. D. fifty dol- lai's, for value received. A B. Albany, May 1, 1847. » Where a note ia to be on interest, the words, | interest, where none is mentioned, is, that "with inlerest," may be added to this and the notes on time draw interest after due, and following forms. The rule of law in regard to 1 notes on demand, after the demand be mado BILLS AND NOTES. 107 § 175. Note, Payahle on Demand. $50. On demand, I promise to pay C. D., or bearer, \or, order,"] fifty dollars, for value received. A.B. Albany, May 1, 1847. § 176. Note, Payable at Bank $500. Sixty days after date, for value received, I promise to pay C. D., or order, five hundred dollars, at the Mechanics' and Farm- ers' Bank. Albany, May 1, 1847. A. B. § 177. Note, Payahle hy Instalments. $500. For value received, I promise to pay C. D., or bearer, \or, order,] five hundred dollars, in the following manner: one hundred dollars in three months, one hundred dollars in six months, one hun- dred dollars in one year, and two hundred dollars in two years from date, with interest on the several sums, as they become due, [or, with annual interest] . A. B. Albany, May 1, 1847. § 178. Note,. Payable in Specific Articles. $50. One year after date, for value received, I promise to pay C. D., or bearer, \or, order,] fifty dollars, in second quality pine lum- ber, at the ciu-rent price. A. B. Albany, May 1, 1847. § 179. Memorandum Note for Money Lent. $100. Borrowed of C. D., one hundred dollars, payable on. de- mand. A.B. Albany, May 1, 1847. § 180. Note, with Surety. $100. One year from date, I promise to pay E. F., or bearer, for, order,] one hundred dollars, for value received. A. B. C. D., Surety. Albany, May 1, 1847 108 NEW clerk's assistant. § 181. Due BUI, Payable in Goods. Due C. D., or bearer, ten dollars in goods, for value received, payable on demand. Albany, May 1, 1847 § 182. Order for Goods. Mr. A. B. : Please pay E. R, or bearer, ten doUai-s in mercban- dise, and cbarsre the same to tbe account of ^ C. D. Albany, "May 1, 1847. § 183. The Same, in another Form. Mr. A. B. : Please deliver to E. F., such goods as he may want^ amount not to exceed twenty dollars, and charge the same to the account of CD. Albany, May 1, 1847. § 184. Order for Money. Mr. A. B. : Please pay E. P., or bearer, fifty dollars, and charge the same to the account of Albany, May 1, 1847. C. D. § 185. Guaranty of Payment, to he Endorsed on Note. Pay to the bearer, and, \the foregoing words are necessary, only when the note is payable to order^ for value received, I guaranty the payment of the within note. CD. May 1, 1845. § 186. Guaranty of Collection. For value received, I guaranty the collection of the within not& CD. May 1, 1845. § 187. Protest of Bill for Nonr Acceptance. United States of America, ) State of New York, p^" On the ' day of , 18 , at the request of A. B., [in- sert the name of the holder, or endorser, or endorsee,"] I, J. N. S., a Notary Public, duly admitted and sworn, dwelling in the city of BILLS ANl) NOTES. 109 Auburn, in the State aforesaid, did present the origmal bill of ex- change, hereunto annexed, to E. F., the drawee therein named, for acceptance, who refused to accept the same : Whereupon I, the said Notary, at the request aforesaid, did protest, and by these presents do publicly and solemnly protest, as well against the drawee, [add, and endorsers, if necessary,] of the said bill, as against all others whom it doth or may concern, for exchange, re- exchange, and all costs, damages, and interest, already incm-red, and to be hereafter incuiTed, for want of acceptance of the same. [ Vari/ as in the fol- lowing form, if necessary.] Thus done and protested, in the city of Auburn aforesaid. In testimonium veritatis, [l. s.] J. N. 8., Notary Public. § 188. Protest of Bill, or Note, for Non-Payment. United States of America, ) State of New York, p^ = On the day of , 1 8 , at the request of A. B., [m- *sert the naine of the holder, endorser, endorsee, or cashier,] I, J. N. S., a Notary Public, duly admitted and sworn, dwelling in the of , in the State aforesaid, did present the original bill of exchange, [or, note,] hereunto annexed, to E. R, the acceptor [or, maker] of the said bill, [or, note,] and demanded payment, who refused to pay the same: [or, did present the original note [or, check,] hereunto annexed, at the Bank, where the same is made payable, [or, at the place of business of E. R, the acceptor [or, ma- ker] of the said bill, [or, note,] he being absent therefrom, [or, at the dwelling-house of E. F., &c., his place of business being closed, and he being absent from his said dwelling-house,] and demanded pay- ment of the same, which was refused:] [or, did make diligent inquiry for the said E. F., and his place of business, or dwelling-house, in the said of , where the said bill [or, note] was made payable, [or, purported to be drawn,] but was unable to find the said E. R, or his place of bxisiness, or dwelling-house, in said , in order to demand payment of the said bUl [or, note :] Whereupon I, the said Notary Piiblio, at the request aforesaid, did protest, and by these presents do solemnly and pubhcly protest, as well against the drawer and endorsers of the said bill, [or, note ; or, check,] as against all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages, and interest, already incurred, and to be hereafter incurred, for want of payment of the same. Thus done and protested in the of , aforesaid. In testimonium veritatiB, [l. s.] J. N. S., Notary Publia 110 NEW clerk's assistant. § 189. Notice of Protest for JVon-Acceptance. Mr A. B.: Sir— You will take notice, that 3'our biU for $2,000, at thirty days from sight, dated May 1, 1847, drawn on C. D., has this day been protested for non-acceptance. Dated Auburn, May S, 1847. Yours, &c. J. N. S., Notary Public. § 190. Notice of Protest for Non-Payment. Mr A. B. : Sir— You will take notice, that your bill for $2,000, at thirty days from sight, dated May 1, 1847, drawn on and accepted by C. D;, has this day been protested for non-payment : \or, that the bill of A. B. for $2,000, at thirty days from sight, dated May 1, 1847, endorsed by you, \or, by A. B., E. F., &c., &c.,] and drawn on and accepted by C. D., has, &c., as above; or, that the note of A. B. for 11,000, dated May 1, 1847, payable at the Bank, sixty days after date, and endorsed by E. F. and G. H., has, &c., as ahove^ Dated , July 3, 1847. Yours, (fee, J. N. S., Notary Public § 191. Certificate of Service of Notice. United States of America, ) State of New York, [ ®®- I, C. H. M., a Notary Public, duly admitted and sworn, dwelling in the of , do hereby certify, that on the day of ,18 , notice of the protest of the before mentioned bill, [or, note ; or, check,] was served upon C. D., the drawer of the said bill, \or, G. H., S. T., and L. M., the several endorsers of the said note,} personally, \or, by letters, respectively addressed to them at their reputed plades of residence, and the post offices nearest thereto, and deposited in the post office in the of , aforesaid.] In testimonium veritatis, [l. s.] C. H. M., Notary Public § 192. General Form of a Notarial Certificate. United States of America, ) State of New York, ]^'- By this public instrument be it known, to all whom the same doth or may in any wise concern : That I, A. B., a Public Notaiy in and for the State of New York, by letters patent, under the great seal of BILLS AND NOTES. Ill said State, duly commissioned and sworn, dwelling in the city of New York, do hereby certify, that [state the subject matter of the certif,catei\ In testimony whereof, I have subscribed my name, and [l. s.] caused my notarial seal of office to be hereunto affixed, the day of , A.D., 18 . A. B., Notary Publia CHAPTER IX. BILLS OP SALE MD CHATTEL MORTGAGES. PRACTICAL REMARKS. 1. A bill of sale is a written contract, or agreement, transferring and assigning the ownership of personal property, or any interest in the same. If fraudulent, as against third persons, it is void. 2. Every sale made by a vendor, of goods and chattels in his pos- session, 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 deli- very, and be followed by an actual and continued change of possess- ion, of the things sold, mortgaged, or assigned, is presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent pur- chasers in good faith; and will be conclusive evidence of fraud, unless it shall be made to appear, on the part of the person claim- ing imder such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers. The term " creditors," as herein used, is to be construed so as to include all the creditors of the vendor, or assignor, at any time whilst such goods and chattels remain in Ms possession, or under his control.' 3. Continued possession in the vendor, or assignor, is not conclu- sive evidence of fraud, where the use of the goods and chattels sold, or assigned, or mortgaged, is necessary to such vendor, or assignor, m order to enable him to provide for himself or family, or obtain the means for the payment and satisfaction of his debts. The. question of good faith in the transaction, arising from continued possession, is 1 2 R. S. (3d ed.) 195, 196, 55 5,6; SWen-l Id., 118, 607: 23 Id.. 663; 24 Id., 117; 25 Id., dell, 375 ; 12 Id., 297; lo Id., 212, 628 ; 16 Id., 396, 615; 26 Id., 611 ; 1 HiU, 347, 438, 467 j 4 «20 J 17 Id., 54, 492 ; 19 Id., 183, 514, 624 ; 21) Id., 271 ; 6 Id., 433, 438. BILLS or BALK AND CHATTEL MOETGABES. US one for a jury to determine ; and they have the right, in theb discre- tion, to excuse possession in the vendor, or mortgagor.' 4. Proof of a valuable consideration, or a true debt, is essential to show good faith ; and if such proof be not made, the case wiU not be given to the jury." < 5. Every mortgage, or conveyance intended to operate as a mort- gage, of goods and chattels, which shall not be accompanied by an immediate delivery and continued change of possession of the things mortgaged, is absolutely void as against the creditors of the mort- gagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, be filed in the town or city where the mortgagor therein, if a resident of this State, resides at the time of the execution thereof; and if not a resident, then in the city or town where the property so mortgaged may be, at the time of such execution. In the city of New York, such instruments are to be filed in the office of the Register ; in the other cities and county towns of this State, in the office of the County Clerk ; and in all other towns, in the office of the Town Clerk thereof The actual and continued change of possession above men- tioned, must be literal, and not a mere legal, or fictitious change, in order to comply with the statute.' 6. Clerks of towns and counties, in whose offices chattel mort- gages are required to be filed by law, must enter the names of the mortgagors and mortgagees in eveiy such instrument, in booka to be provided by them for the purpose, at the expense of their respective towns or counties, under the head of mortgagors and mortgagees, in each of such books respectively. It is also the duty of the said clerks to number every mortgage or copy so filed, by endorsing the number on the back thereof and to enter such number in a separate column in the books in which such mortgages are entered, opposite to the name of every party thereto, also the date, the amount secured thereby, when due, and the date of the fihng." ' 7. Every mortgage, filed according to the foregoing requisitions, ceases to be valid, as against the creditors of the person making the same, or subsequent purchasers or mortgagees in good faith, after the exphation of one year from the fihng thereof; unless, within thirty days next preceding the expiration of the said term of one year, a true copy of such mortgage, together with a statement exhibiting the interest of the mortgagee in the property thereby claimed by him, by virtue thereof, be again filed in the office of the Clerk, or Register, aforesaid, of the town or city where the mortga- gor then resides. A copy of such instrument, or any statement therein made, certified by the Clerk, or Register, as aforesaid, is only 1 23 Wendell, 653 ; 26 Id., 611 ; 1 Hill, 438, *73 ; 4 Id., 271 : 1 Comstock, 496. "1 Hill, 438; 4 Id., 271. • 2 R. S. (3d ed.) 196, 51 9, 10 ; 17 Wendell, 492: 19 Id., 614, 624: 23 Id., 653; 2 Hill 628 1 4 Id., 271 ; 1 Dcnio, 580 ; 10 Paige, 127 « Laws of 1849, chap. 69. o 114 NEW CLERK'S ASSISTAITT. CTidence of tlie time of feceinng and filing the same, as specified in tlie indorsement of such Clerk, or Register.' 8. The words "Belted and renewed," with the date and signature of the Clerk, enidarsed on a chattel mortgage, are not sufficient to continue it as Against th^^ tlaims of creditors. The interest claimed by the mortgsg-ec must be distinctly stated.'' 9. In Slassiichusetts, a chattel mortgage must be recorded by the Clerk of the town where the mortgagor resides, and also by the Clerk of tlie town where he transacts his business. The right of the mortgagor, or his assigns, to the property, is not forfeited, until sixty days after the mortgagee, or his assigns, gives written notice to the person holding the property, of the intention to foreclose, and files a copy of. the notice in the Clerk's office where the ntortgage is recorded. In Maine, a chattel mortgage must be recorded by the Cleik of the town where the mortgagor residos, and the mortgaged property must be delivered to the mortgagee, and retained in his possession. 10. After default in the payment of a chattel mortgage, the mort- gagee's title to the property mortgaged becomes absolute at law, and he is entitled to the immediate possession; and he does not wfive such right of possession, by filing a copy of the mortgage, with a statement exhibiting the interest claimed by him by vhtue thereof, subsequent to such default. Where a chattel mortgage contains a provision that, in case of default, the mortgagee may sell the pro- perty at public or private sale, and out of the proceeds satisfy the debt, and return the surplus, the title of the mortgagee becomes com- plete, on default, without any sale being made. For the protection of the mortgagor, therefore, a clause of this character, if inserted at aU, should be imperative on the mortgagee.' 11. Until forfeiture by non-performance of the conditions of a chattel mortgage, the interest of the mortgagor in the property mort- gaged may be levied on, and sold, under an execution.* 12. A chattel mortgage, cannot, perhaps, be given on growing trees, fruit, or grass, whUe parcels of the real estatp,f-or on produce not actually in existence ; yet growing grass may baHi^ansferred in this manner, provided it actually bej^gs to the mortgagor, — as in the case of a tenant occupying a farm.' 1 2 R. S., (3tl ed.) 196, §§ 11, 12 ; 20 Wen- dell, 18. 2 1 Ueriio, 163.. 3 23 Wendell, 667; 1 Hill, 473 ; 2 Denio, 170. 4 1 Harbour's S. O. l?cp.. H2. 5 1 Denio, 500; 1 Baibuur's S. C. Rep., 542; 1 Comstock, 90. BILLS OF SALE AND CHATTEL MOETSAGES. 115 FORMS. § 193. CommoJi Bill of Sale. Know all men by tliese presents: That I, A. B., of the town of , in the county of , and State of New York, of the first pLirt, for and in consideration of the sum of dollars, lawful money of the United States, to me paid by C. D., of, &c., of the second part, the receipt whereof is hereby aoluiowledged, have bar- gained and sold, and by these presents do grant and convey, unto the said parly of the second part, his executors, administrators and assigns, the one equal, undivided half, of six acres of wheat, now growing on the farm of E. F., in the town of , aforesaid one chestnut horse, and twenty sheep belonging to me, and now in my possession, at the place last aforesaid :' to have and to hold the same unto the said party of the second part. Ids executors, administrators and assigns, forever. And I do, for myself, my heirs, executors and administrators, covenant and agree, to and with the said party of the second p.ut, his executors, administrators and assigns, to warrant and defend the sale of the said property, goods and chattels, hereby made, unto the said party of the second part, his executors, administrators and assigns, against all and every person and persons -whomsoever.* In witness whereof, I have hereunto set my hand and seal, this day of , one thousand eight hundred and Signed, scaled and delivered, ) A. B. [l. s.] in presence of j - r G.H. § 194. Bill of Sale in coiuideraiion of Maintenance. This indenture, made on the day of, &c., between A. B., of &c., of the first part, and C. B., of the same place, of the Second part, -witnesseth : That the party of the first parf^ in consideration oif the covenants hereinafter contained, to be performed by the party of the second part, and of the sum of one doUar, to him in hand paid, by the said party of the secoiid part, the receipt vi^hereof is hereby acknowledged, has bargained and sold, and by these presents does grant and convey, (fee, [as in the preceding form to the *, changing the several pronouns to the third person, and substituting; And the said party of the first part does, for And I do, and then addi] ilf the properly conveyed consists of a great number of articles, it is as well to refer to them, in tiie bill of sale, as " all the goods, wares and merchandise, chattels and etfecis, mentioned and described in the schedule hereto annexed, 'marked schedule A;'" — and they should then be particularly enu- anerated* in the schedule. The delivery is es- sential, where it can be made, in order to make a bill of sale valid; and the subscrib- ing witness should be able to testify positive- ly, as well in relation to that, as to the con- sideration of the sale. A bill of sale of a ship at sea, or iri a foreign port, is good with- out delivery ; but the purchaser must take possession as soon as practit^^ljr^ 116 WBW clkrk's assistant. And in consideration of the premises, the party of the second part doth hereby covenant and agree, to and with the party of the first part, his executors, and administrators, that he ml] support and main- tain, and comfortably and sufficiently clothe, the party of the first part, and in all respects care and provide for him, for and during the rest, residue and remainder, of his natural life ; and that he, the said party of the second part, -will pay unto the said party of the first part, the sum of dollars, on the first day of January, in each and every year during the said time: provided, however, that the said party of the second part shall be forever released and discharged from the covenants above contained, on his part to be performed, if the said party of the first part shall refuse to reside in the county of , aforesaid, except such refusal be occasioned by inability to obtain comfortable and sufficient board, lodging and maintenance, in the said county. In witness whereof, the said parties have hereunto set their hands and seals, the day and year first above written. Signed, sealed and delivered, ) A. B. [l. s.1 in presence of j C. D. [l. s.1 G. H. § 195. Mil of Sale of Begistered or Enrolled Vessel. Know all men by these presents : That I, A B., o^ &c., owner of the brig, or vessel, called the " Isabella," of the burden of tons, or thereabouts, now lying at the port of , for and in con- sideration of the sum of dollars, lawful money of the United States, to me paid, by C. D., of the place aforesaid, the receipt wherof I hereby acknowledge, have bargained and sold, and by these presents do bargain and sell, unto the said C. D., his executors, administi-ators and assigns, all the huU or body of said brig, or ves- sel,' together with the masts, bowsprit, sails, boats, anchors, cables, spars, and all other necessaries thereunto appertaining and belonging ; l£e certificate of the registry of which said brig, or vessel, is as fol- lows, to wit ; [copy certificate of registry .■] To have "agoA to hold the said brig or vessel, and appurtenances thereunto belonging, unto the said G. D., his executors administrators and assigns, to his and their pro- per use, benefit and behoof, forever. And I do, for myself, my heirs, executors and administrators, covenant and agree, to and with the said 0. D., his executors, administrators and assigns, to warrant and defend the said brig, or vessel, and all the before mentioned appur- tenances, against all and every person and persons whomsoever. In witness, &c., [as in § 193.] , § 196. Bill of Sale and Chattel Mortgage. Know all men by these presents : That I, A. B., of, Laws of 1817, chap. 429. | ' Laws of 184S, chap. 202. 134 NEW olbrk's assistant. § 228. For Imposing Fines. Hear ye, hear ye, hear ye : The court have imposed a fine of dollars, upon each of the following persons, for non-attendance as grand jurors, [or, petit jurors; or, constables,] at this court, to 'wit: A. B., of , &c. &o. § 229. For Persons to Appear on Recognizances. Hear ye, hear ye, hear ye : All manner of persons who are bound by recognizances to prosecute, or prefer, any -bill of indictment, against any prisoner or other person, let them come forth and prose- Cute, or they will forfeit their recognizances. § 230. For Persons Bound to Answer. Hear ye, hear ye, hear ye : A. B., come forth and answer to your name, and save yourself and bail, or you wiU forfeit your recognizance. § 231. For Bail to Produce Principal. Hear ye, hear ye, hear ye: C. D. and E. F., bring forth A. B., jour principal, whom you have midertaken to have here this day, or you will forfeit your recognizance. §^ 232. For Discharge of Persons against whom no Bills are found. Hear ye, hear ye, hear ye : If any man can show cause why A. B. should stand longer bound, \or, imprisoned,] let him come forth, and he shall be heard, for he stands upon his discharge. § 233. Discharge. Hear ye, hear ye, hear ye : No cause being shown why A. B. should longer remain in custody of the Sheriflf of the county of , te is discharged. § 234. For Jury in a Civil Cause, Hear ye, hear ye, hear ye : You, good men, who are here empan- neUed and returned, to try this issue, joined between A. B., plaintiflF, and C. D., defendant, answer to your names as you are called, and saye your fines. § 235. For Defendant on an Inquest. C. D., come forth and make your challenges, or you will lose your challenges, and inquest will be taken against you by default flTERKS AND CRIERS. 13g § 236. For Plaintiff to Anpear and Prosecute. A. B., appear and prosecute v or action, or your default will be entered. § 237. For Adjournment. Hear ye, hear ye, hear ye : All manner of persons who have any further business to do at this Circuit Court, and Court of Oyer and Terminer, may depart hence, and appear here again to-morrow morn- ing, at o'clock, to which time these courts are adjourned. § 238. For Opening Court after Adjournment. Hear ye, hear ye, hear ye : All manner of persons who have been adjourned over to this hour, and have any further business to do at this Circuit Court, and Court of Oyer and Terminer, may draw near, and give their attendance, and they shall be heard. § 239. Calling a Witness to answer on a Subpoena. D. M., come forward and testify in this issue, joined between A. R plaintifF, and C. D., defendant, according to the command of a sub- poena therein served on you, or your default will be entered. § 240. Oath of a Witness to give Evidence. You do swear, that the evidence you shall give in t|iis matter in difference, between A. B., plaintifF, and C. D., defendant, shall ba the truth, the whole truth, and nothing but the truth. So help you God.' § 241. The Same, by the Uplifted hand. You do swear, in the presence of the ever-living God, that, ur foreman has taken on his part, you [and each of you] will, &c." a This and the succeeding forms should be varied, if necessary, ip the manner pointed out In the note to § 243. CLfiRKS AND CMBlRS. 13^ § 249. Of Interpreter. You stall truly interpret between the court, the jury, the counsel, and the witness, in this issue joined between A. B., plaintiff, and C. D., defendant So help you God. 8 250. Of Interpreter to a Deaf and Dumb Witness. You shall well and truly interpret between the court, the jury, the counsel, and the witness, E. F., here produced in behalf of A.' B., in this issue joined between A. B., plaintiff, and C. D., defendant So help you God. § 251. Voire Dire. You shall true answers make to such questions as shall be put to you, touching your interest in the event of this cause. So help you God. 8 252. Oath of Party, or Interested Witness, to Admit .Evidence of the Contents of a Paper not Produced. You shall true answers make to such questions as shall be put to you, touching the power or control you have over any paper, [or, the loss or destruction of any paper,] which would be proper evidence in this cause. So help you Qod. § 253. Of a Party, or Interested Witness, Preliminary to Proving the Sand Writing of a Subscribing Witness. You shall true answers make to such questions as shall be put to you, touching your [or, the plaintiff's; or, defendant's] ability to procure the attendance of G. H., a subscribing witness to this paper, [or, the paper in question.] So help you God. § 254. Of Constables, on Retiring with a Jury, or Jurors, on leave. You shall retire with such jurors as have leave of absence from this court; you shall not speak to them yourself in relation to this trial, nor suffer any person to speak to them : and you shall return with them without delay. So help you God. § 265. Of Constables, to Keep Jury on an Adjournment. You shall retire with the jury to some convenient room, to be fur- nished by the Sheriff ; you shall not suffer any person to speak to 138 NEW clkrk's assistant. them, nor speak to them yourself ia relation to this trial, and return ■with them at the order of the court So help you Grod, § 256. Of Constable who Attends the Jury, when they retire to consider of the Verdict in Civil and Criminal Cases. You shall well and truly keep every person sworn on this jury, in some private and convenient place, without meat or drink, water ex- cepted ; you shall not suffer any person to speak to them, or speak to them yourself, without leave of the court, except it be to ask them whether they have agreed on their verdict, until they liave agreed on their verdict So help you God. § 257. Oath on Application to Excuse, or Discharge, a Juror or Constable. You shall true answers make to such questions as shall be put to you, touching your application [or, the application for and in behalf of E. F.,] to be discharged \or, excused] from attendance as a juror \or, constable] at this court. So help you God. § 258. On Application of Juror, or Constable, for a Re- mission of Fine. You shall true answers make to such questions as shall be put to you, touching your application [or, the application for and in behalf of E. F.] for the remission of your [or, his] fine, for default in attend- ing as a juror, [or, constable,] at this [or, the last] term of this court So help you God. § 259. Oath of Poor Witness, on Application for Expenses. You shall true answers make to such questions as shall be put to you, touching your application for the expenses of your attendance at this court, as a witness in behalf of the people of this State. So help you God. § 260. Of Applicant for Pension. You shall true answers make to such questions as shall be put to you, touching your application for a pension. So help you God. § 261. Of Witness, on Application for a Pension. You shall tiTie answers make to such questions as shall be put to you, in the matter of the application of R S., for a pension. So help you God. CLERKS AND CRIERS. 139 § 262. Of Witness on the Trial of a Justice, on Charges. The evidence you shall give between the people of the State of New York and G. H., on charges made against him as a Justice of the Peace, shall be the truth, the whole truth, and nothing but the truth. So help you God. § 263. Proclamation of Arraignment for Felony. All persons are strictly charged and commanded, to keep silence, while the court proceed to arraign the prisoners on indictments for felony. § 264. Proclamation for Petit Jury on the same. You, good men, who are here returned to inquire between the people of the State of New York, and A. B., the prisoner at the bar, answer to your names as you are called, and save your fines. § 265. Clerk's Address to the Prisoner, before calling the Jury. A. B. : These good men that you shall now hear called, are the jurors who are to pass between the people of the State of New York and you; {or, if a capital case, to pass upon your life and death;] i^ therefore, you will challenge them as they come to the book to be sworn, and before they are sworn, you shall be heard. \^The crier then calls the jurors, one at a time, as they are drawn by the Cleric; and when the juror comes to the stand, and is ready to be sworn, the Clerk says: Jui-or,look upon the prisoner — Prisoner, look upon the Juror.] § 266. Juror's Oath on a Trial for Felony. You shall well and truly try, and true deliverance make, between the people of the State of New York, and A. B., the prisoner at the bar, whom you shall have in charge, and a true verdict give, accord- ing to the evidence. So help you God. § 267. Trier's Oath on a Challenge to the Favor., You shall well and truly tiy and find, whether C. D., the jm-or challenged, stands indifferent between the people of the State of New York and the prisoner at the bar. So help you God. § 268. Finding of the Triers. The finding is; that he stands indifferent, \or, not indifferent] m NEW CLERK'S ASSISTANT. ^ 269. Oath of a Witness he/ore the Triers. You shall trtie answers make to sucli questions as shall be put to ydxt, toucliing the challenge of E. R, as a juror. So help you God § 270. Proclamation Requiring a Witness vndef Recognizance, to Appear and Testify. Hear ye, hear ye, hear ye : G. H., who is bound by recognizance to give evidence against A. B., the prisofier at the bar, come forth, answer to your naine, and give evidence, ot you will forfeit your re- cognizance. § 271. Oath of a fViiness on a Trial for Felony. The evidence you shall give between the people of the State of New York, and A. B., the prisoner at the bar, shall be the truth, the whole truth, and nothing but the truth. So help you God. § 272. Proclamation before Sentence Pronoimced. Hear ye, hear ye, hear ye : AU manner of persons are commanded to keep silence, while judgment is given against the prisoner at the bar, upon pain of imprisonment § 273. Proclamation hefore calling Jury on a Misdemeanor. You, good men, who are here returned to try this issue of traverse, between the people of the State of New York, and A. B., the defend- antj answer to your names as you are called, and save your fines. § 274. Juror's Oath, on a Trial for a Misdemeanor. You shall well and . truly try this issue of traverse between the people of the State of New York, and A. B., the defendant, and a true verdict give therein, according to the evidence. So help yoii God. § 275. Oath of a Witness on a Trial for a Misdemeanor. The evidence you shall give in this issue of traverse, between the people of the State of New York, and A. B., the defendant, shall be the truth, the whole truth, and nothing but th^ truth. So help you God. § 276. Clerh's Address on Tahing Recognizance of Prisoner. You, and each of you, acknowledge yourselves to be indebted to the people of the State of New York, to wit: You, A. B., in the OLBBKS AND CRlEEg. 141 sum of one hundred dollars : and you, C. D., in the sum of one hun- dred dollars, to be levied of your, and each of your goods and chat- tels, lands and tenements, to the use of the said people, if default shall be made in the condition following, to wit : The condition of this recognizance is such, that if A. B. shall appear at the next court [or, from day to day during the sitting of this court,] of [state the court,] to be held in and for the county of , then and there* to answer and stand trial upon a certain indictment against him for fel- ony, [or, whatever may be the offence ;"] not to depart the court without leave, and to abide its order and decision, then this recognizance to be void ; otherwise to remain in full force and virtue. Are you and each of you content? § 277. The Same, on Recognisance of Witness. You, &c., [ CM in § 276, to the *, and then add:] to testify on the trial of a certain indictment against E. F., for felony, [or, whatever may he the offence;] not to depart the court without leave, &c., [as in § 276.] § 278. The Same on Recognisance to Keep the Peace, or for Good Behavior. You, (fee, [as in § 276, to the *, and then add:] to answer and stand trial upon a certain indictment against him, for [state the offence;] and shall also in the meanwhile keep the peace towards 8. T., and all the other good people of this State, [or, and shall also in the meanwhile be of good behavior,] then, &c., [a.s in § 276.] § 279. Commencement of Address where there is no Surety. You acknowledge yourself to be indebted to the people of the State of New York, in the sum of one hundred dollars, to be levied of your goods, vice of a subpoena on E. F., to appear here this day A. B. ) as a witness on the trial of this indictment, and he being called and not appearing, on motion of E. W. A., Esq., Dis- trict Attorney, it is ordered that an attachment issue against the said E. F. 142 NEW clerk's assistant. § 282. Arraignment of a Parti/ indicted, after reading Indictment. Do you demand a trial on this indictment ? § 283. Talcing Verdict on a Trial for Felnny, or Murder. Gentlemen of the jury : Please answer to your names. [ Call them one by o«e.] Have you agreed upon your verdict ? [After the answer, say:\ Jurors, look upon the Prisoner. Who shall say for you? [The foreman rises.'\ How say you; do you find the prisoner at the bar guilty of the felony [and murder, if necessary,^ ■whereof he stands indicted ; or not guilty? [The foreman answers: guilty; or, not guilty. Then the Clerk adds:'\ Hearken to your verdict, gentlemen, as the court has recorded it: You say, you find the prisoner at the bar guilty [or, not guilty] of the felony [and murder, if necessary^ whereof he stands indicted ; and so you say alL § 284. Polling Jury in the Same. [When the polling of the jyiry is demanded, the Cleric will begin with the first name on the panel:^ A. B., how do you find the priso- ner at the bar ; guilty or not guilty ? [ When the foreman has an- swered, call the next juror as follows :] C. D., is that your verdict? [Then proceed in the same manner, through the whole panel, and when all have answered, say:] Then, gentlemen of the jui-y, hearken to your verdict as the court ihas recorded it You say you find the prisoner at the bar* guilty of the felony [and murder, if necessary,^ whereof he stands indicted, and so you say all §285. Taking Verdict in other Criminal Cases. Gentlemen of the jury: Please answer to your names. [Call them one by one.] Have you agreed upon your verdict? [After the answer, or affirmative assent, is given, say .•] Who shall say for you? [The foreman rises.] How say you; do you find the priso- ner at the bar guilty of the misdemeanor [or, assault and battery, and riot; or, riot; or, oflFenoe; or, crime] whereof he stands indicted; or not guilty? [The foreman answers: guilty; or, not guilty. Then the Clerk~adds:] Hearken to your verdict, gentlemen, as the court has recorded it You say you find the prisoner at tlie bar guilty [or, not gTiiity] of the misdemeanor [or, assault and battery, and riot; or, riot; or, offence; or, crime] whereof he stands indicted; and so you say alL CLERKS AND CRIERS. 143 § 286. Polling Jury in the Same. [Proceed as in § 284 to the *, and then add:] guilty of the mis- demeanor [or, assault and battery, and riot; or, riot; or, offence; or, crime] whereof he stands indicted; and so you say alL § 287. Taking Verdict in a Civil Cause. Gentlemen of the jury: Please answer to your names. [Call them one by one.] Have you agreed upon your verdict? * How do you find ? [The foreman states the finding of the jury; the Clerk then enters the verdict, and coittinves :] Gentlemen, listen to your verdict as it stands recorded. You say you find, &c., [as the finding may i«;] and so you say all. § 288. Entry of Verdict. Supreme Court, A. B. ) County of . At a Circuit Court held against > held in and for said county, on the day C. D. ) of , 18 , before J. M., Esquire, Justice. JURORS. [Insert names.] WITNESSES. [Tiwert names.] Verdict for defendant, [or, verdict for plaintiflF, damages I ; or, verdict for plaintiff against defendant, C. D., damages I , and verdict for the defendant E. F. ; [or, if it be a special verdict, insert the same at le^igth.]* E. B. C, Clerk. § 289. Entry of Verdict, with Assessment of Value of Personal Property. Supreme Court, A. B. J County of, (fee, [as in the preceding form, to against > the *, and then add:] and the jury assess the C. D. ) value of the said [mention the property in ques- tion] at dollars : [If necessary, add: and they further assess the damages of the said defendant by occasion of the delivery and detention of the said property, at dollars.] E. B. C, Clerk. § 290. Entry of Judgment. Supreme Court, A. B. ) Judgment, against >■ January 1, 1849. C. D. ) This cause being at issue upon the facts, and a trial by jury having been had, on which a verdict was found for the 144 KEW CLERK'S ASSISTANT. plaintiff, that, , August ,18 , at A. M. CD.) R. R, Attorney. State of New York, County, ) Clerk's Office, August ,18 . j I certify, that the preceding is a true copy of the docket of bb original record of judgment remaining on the files of this office. L. M., Clerk J48 KBW oleek's assistant. § 306. Certificate to Copy of a Record, or Paper, on FUe in the Clerk's Office. State of New York, County, J . Clerk's Office, May , 18 . P^' I do hereby certify, that I have compared the foregoing copy of a [name the instrument,'] and of the endorsements thereupon, with the original records of the same remaining in this office, \or, with the originals now remaining on file in this office,] and that the same are correct transcripts therefrom, and of the whole of said original re- cords, [or, originals.] [l. sT] In testimony whereof, &c., [as in § 303.] § 307. ClerVs Certificate on Transcript of Judgment before Justice of the Peace. State of New York, ) County, j I, L. M., Clerk of the said county, do certify, that G. H., the per- son subscribing the within [or, annexed] transcript, was, at the date of the judgment therein mentioned, viz : on the day of , 18 , a Justice of the Peace of the said county, and that I am well acquainted, &c., [as in § 303, suistitutinc/ transcript for ceiiificate.] CHAPTER XII. COMEYMCES BY DEED MD MOETGAGE. PRACTICAL REMARK S. 1. All instruments under seal are deeds; but the term 'deed,' is generally understood as applying to conveyances of land. 2. Every person capable of bolding lands, (except idiots, persons of unsound minds, and infants,) seized of, or entitled to, any estate or interest in lands, may alien such estate or interest, at pleasure, sub- ject to the restrictions and regulations provided by law.' 3. No purchase, or contract, for the sale of lands, in this State, made since the fourteenth day of October, 1775, with the Indians residing in the State, is valid, unless made imder the authority and with the consent of the Legislature." 4. Every grant in fee, or of a freehold estate, in New York, must be subscribed and sealed by the person from whom the estate or in- terest conveyed is intended to pass, or his lawful agent; if not duly acknowledged before its delivery, its execution and delivery must be attested by at least one witness ; and if not so attested, it will not take effect as against a purchaser, or incumbrancer, until so acknow- ledged. A grant will not take effect, so as to vest the estate or inte- rest intended to be conveyed, except from the time of its delivery. Almost any act of the party executing a deed, importing an intention to deliver it, will be sufficient; or it may be delivered as an escrow, on conditions, and will take effect, on the performance of such condi- tions, from the time of the delivery.' 5. No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust, or power, over or concermng lands, or in any manner relating thereto, can be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed, or conveyance in writing, subscribed by the party creating. 1 2 R. S. (3d ed.) 3, § 10. I eon, 28S; 11 Wendell, 240j 2 Hill, 659; 1 Bai- a 2 R. S. (3d ed.) 3, § 11. bour'B S. C. Rep., 500. s 2 R. S. (3d ed.) 22, 8§ 137, 138; 13 John- ISO NEW clerk's assistant. granting, assigning, surrendering, or declaring, the same, or by hia lawful agent thereunto authorized by writing.' 6. A contract for the sale of growing trees, with the right to enter and remove them, must be reduced to writing, in order to be valid.' 7. The term ' heirs,' or other words of inheritance, are not requi- site to create or convey an estate in fee ; and every grant of real estate, or any interest .therein, will pass aU the estate or interest of the grantor, unless the intent to pass a less estate or interest appears, by express terms, or is nece-ssarily implied in the terms of the grant.' 8. No covenant can be unphed in any conveyance of real estate, whether such conveyance contain special covenants or not. Deeds of bargain and sale, and of lease and release, may continue to be used, and wiH be deemed grants, and, as such, subject to the provi- sions of law concerning gTants.* 9. No gTeater estate or interest will be construed to pass by any conveyance, than the grantor himself possessed at the dehvery of the deed, or could then lawfully convey, except that every grant is con- . elusive as against the grantor, and his heirs, claiming from him by descent ; and also, as against subsequent purchasers from such grantor, or from his heirs, claiming as such, except a subsequent purchaser in good faith, and for a valuable consideration.' 10. Every grant of lands will be absolutely void, if at the 'time of the delivery thereof, such lands be in the actual possession of a per- son claiming under a title adverse to that of the gTantor ; except as against the grantor and his heirs. But every person having a just title to lands, of which there is an adverse possession, may execute a mortgage on such lands ; and such mortgage, if duly recorded, wiU bind the lands from the time the possession thereof may be recovered, by the mortgagor or his representatives, and will have preference over subsequent mortgages, judgments, or other instruments.' 11. Where the grantor in a deed has no title to the premises con- Teyed, the covenants of seizure and power to convey, if inserted in the deed, are broken immediately upon its execution.' 12. A deed should be founded on a sufficient consideration, and executed by persons able to contract and be contracted with ; the subject matter must be set forth in sufficient words to describe the agreement, and bind the parties ; and it should be read by or to the grantor, previous to the execution, unless the reading is expressly waived. The consideration of a deed may be either good or valua- ble : it must not partake of any thing immoral, iUegal, or fraudulent > 2 R. S. (3d ed.) 194, 5 6; 6 Wendell, 461; laid., 436; 13 Id., 481; 16 Id., 25, 28; 2 Hill, 486. ' 1 Denlo. 650. •2 K. S. (3ded.)33, §1. ♦ 2 R. S. (3d ed.) 22, 55 140, 142; 14 Wen- Mi, 38; SFaige, 69S. » 2 R. S. (3d ed.) 23, §5 143, 144. " 2 R. S. (3d ed.) 23, §§ 147, 148; 7 Wen- dell, 377; 9Id., 516; 15 Id., 164; 21 Id., 98; 2 Hill,626. ' ' 2 Barbour's S. C. Rep., 300. CONVETANCBS BT DEED AND MORTOAGB. 151 Every deed, or contract, is void, when made for any fraudulent pur- pose, or in violation of law. A good consideration is founded upon natural love and affection between near relations by blood : a valua- ble consideration is founded on something deemed valuable, as money, goods, services, or marriage. An equitable liability is sufficient to uphqjd an express covenant or promise.' 13. Where the consideration is expressed in a deed, any averment to the contrary cannot be made, although it may be inquired into, for all purposes, except to impeach the deed as between the parties ; nor will the validity of a deed depend on the amount of the conside- ration." 14. The rule in relation to the description of premises conveyed by metes and bounds is, that known and fixed monuments control courses and distances ; and the certainty of metes and bounds will include all the lands within them, though they vary from the quan- tity expressed in the deed. Where natural and fixed objects are wanting, and the com-se and distance cannot be reconciled, the one or the other may be preferred, according to circumstances.' 15. In the construction of every instrument granting or convey- ing, or authorizing the creation or conveyance of, any estate or interest in lands, it is the duty of courts of justice to carry into effect the intent of the parties, so far as such intent can be collected from the whole instrument, and is consistent with the rules of law. Mate- rial erasures or interlineations in a deed, should always be noted before the execution.* 16. A quit-claim deed, purporting to convey one's " right of expec- tancy," or possibility of inheritance, will not affect the grantor's title as heir, subsequently acquired.* 17. When a deed is executed by an attorney, for several principals, one seal is suflBcient, provided it appear that the seal affixed waa intended to be adopted as the seal of all." 18. An action will lie for fraudulent representations as to the terri- torial extent of right in real estate conveyed or leased.' 1 9. Where land is conveyed by metes and bounds, if the descrip- tion contains positive language as to quantity, it is to be regarded as descriptive only, and not as a covenant of quantity." 20. If a grantor has no title, his covenant of seizin is broken im- mediately on the execution of his deed; but where there are cove- nants of warranty and quiet enjoyment only, there must be an eviction, before a recovery can be had.' 1 4 Kent's Commentaries, (2d ed.) 464; 2 R. S. C3d ed.) 193, « 1, 2: 2Hill, 659: 7 Id., 253; 1 Denio, 620. 3 1 Johnson, 139; 4 Id., 23; 16 Id. 47; 4 Cow- en, 430; 9 Id., 69; 9Wendell,611;16Id.,460; 1 Denio, 226; 2 Barbour's Ch. Rep., 232. 3 4 Kent's Commentaries (2d ed.) 466; 3 Barbour's S. C. Rep., 215. < 2 R. S. (3d ed.) 33, 6 2; 2 Barbour's S. Rep. W9: I Comstock, 96. 6 2 Hill, 641. 4 Hill, 351. T 1 Oomslock, 305. 8 3 Barbour's S. C. Rep., 353. , 1 Comstock, 609. 152 NEW clerk's assistant. 21. No mortgage will be construed as implying a corenant for the pajTnent of the sum mtended to be secured; and where there is no eicpress covenant for such payment contained in the mortgage, and no bond or other separate instrument given, the remedifes of the mortgagee will be confined to the lands mentioned in the mortgage.' 22. The wite of a grantor, or mortgagor, must unite with her husband in a conveyance, in order to release her right of dower, except in the case of a mortgage for the purchase money. A deed conveying any interest of a married woman in lands, except her separate estate, or unless under her power, must be executed by herself and husband : but a married woman who is an infant, can- not bind herself by deed so as to bai* her right of dower." 23. Where, upon the sale and purchase of land, a deed is executed by the vendor, and a mortgage given by the purchaser, and both are acknowledged 'and recordefl. at the same time, it wiU be presxuned that the mortgage was given to secure the purchase money, though the same be executed to a third person, instead of the vendor, by direction of the latter.^ 24. Where it is evidently the intention of the parties to a paper that the same shall be regarded as a mortgage, no form of words wiU defeat such intention.* 25. A mortgage is a lien, or security for a debt, but does not give title in, or to, real estate; and the interest of the mortgagee is a mere chattel interest.' 26. A mortgage conditioned for support and maintenance is good." 27. If a deed be given, and the purchaser execute a mortgage, the presumption will be that they were executed at the same time, and the vendee will acquire only the equity of redemption.' 28. Where lands are mortgaged, and a part thereof subsequently sold by the mortgagee, the part remaining unsold is the primary fund for the payment of the debt, and if different parcels are sold, they are to be charged with the debt in the inverse order of aliena- tion.* 29. A release of a part of mortgaged premises does not impair or destroy the lien as to the residue between the original parties.' 30. The mere recording of an assignment of a mortgage is not such a notice to the mortgagor as will invalidate a payment made by him, subsequent to the assignment, to the assignor.'" 31. A mortgage discharged of record, without actual satisfaction, in consequence of fraudulent representations by the mortgagor, may be revived.'^ ' 2 R. S. (3a ed.,) 22, 5 139. a 1 Barbour's S. C. Rap., 399 ; 4 Id., 407; Id., 546. " 1 Barbour'a S. C. Rop., 399. « 2 Barbour's S. 0. Rep., 28. « 3 Denio, 232; 2 Barbour'a Ch. Eep., 119; 3 Barbour's S. C. Bep., 305. 8 2 Oomstock, 360. ' 3 Barbour's S. C. Rep., IK. s 2 Comstock, 289. 9 3 Barbour'a S. C. Rep., 128. i» 2 Barbour'a Oh. Rep., 88. " 1 Barbour's S. C. Rep., 892; CONVEYANCES BY DKBD AND MORTGAGE. 153 32. A certificate of the sale of real estate on an execution, must contain : a particular description of the premises sold ; the price bid for each distinct lot, or parcel; the whole consideration money paid; and the time when such sale will become absolute, and the purchaser be entitled to a conveyance, pursuant to law. The deed is to be executed by the officer making the sale.' 33. Two witnesses are required at the execution of a deed, in New Hampshire, Vermont, Rhode Island, Connecticut, Pennsylvania, Georgia, Ohio, Indiana, Illinois, Michigan, and Wisconsin. In Dela- ware, Tennessee, and North Carolina, two witnesses are required where a deed is to be proved by witnesses. In the other States, one witness is sufficient to render a deed valid, as between the parties. In this State, proof of the execution of a deed by one witness, or its acknowledgment before the proper officer, will entitle it to be recorded. 34. Mortgages of real estate may be foreclosed by advertisement, by the party holding the same, in person, where default has been made in any condition of such mortgage, and no other legal proceed- ings are then pending thereupon." 35. In order to foreclose a mortgage, a notice, specifying the names of the mortgagor and mortgagee, and assignee, if any; the date of the mortgage, and where recorded; the amount claimed to be due at the time of the first pubhcation of the notice ; and a des- cription of the mortgaged premises, conforming substantially with that contained in the mortgage ; must be published for twelve weeks, successively, at least once in each week, in a newspaper printed in the coimty where the premises to be sold are situated ; or, if they are situated in two or more counties, in either of them.' 36. A copy of the notice of foreclosure must be affixed, at least twelve weeks prior to the time designated for the sale, on the out- ward door of the building where the county courts are directed to be held, in the county where the premises are situated ; or, if there are two or more such buildings, on the outward door of that one nearest the premises. A copy of such notice must also be served, at least fourteen days prior to the time specified therein for the sale, on the mortgagor or his personal representatives, and on the subsequent grantees and mortgagees whose conveyances or mortgages were on record at the time of the first publication of the notice, and. on all persons having a lien, by judgment or decree, on the mortgaged premises, subsequent to such mortgage ; such service may be made personally, or by leaving the notice at the dwelling-house of the person to be served, in charge of some one of suitable age, or by depositing a copy of such notice, at least twenty-eight days prior to » 2 R. S. (3d ed.) 467, § 44; 20 Wendell, ) » 2 R. S. (3d cd.) 632, 55 1, 2; 7 WendeU, 416; 7 Hill, 476, 616. 1 458; 4 Paige, 58; 7 Id., 2S7. ' » 2 R. S. (3d ed.) 632,3, §§ 3, 4; 1 Hill, lOa 154 NEW clerk's assistant. the time specified therein for the sale, in the post ofiBce, properly folded and directed to said person at his place of residence.' 31. The sale of the mortgaged premises may be postponed from time to time, by insertiiig a notice thereof, as soon as practicable, in the newsp&,per in which the original advertisement was pubhshed, and continuing such insertion until the time to which the sale was postponed." 38. The sale must be made at public auction, in the day time, in the county where the mortgaged premises, or some part of them, are situated. If the premises consist of distinct farms or lots, they must be sold separately ; and no more can be sold than will be suf- ficient to pay the amount due on the mortgage at the time of the first publication of the notice, with interest, and the costs and ex- penses allowed by law. The mortgagee, his assigns, or his or their legal representatives, may, fairly and in good faith, purchase the premises, or any part of them, at the sale.' 39. A sale of mortgaged premises, in pursuance of the foregoing directions, will be a bar of all claim or equity of redemption of the mortgagor, or his representatives, or of any person claiming under him or them, by virtue of a title subsequent to the mortgage fore- closed ; and also, of any person having a Hen on the premises, or any part thereof, by or under any judgment or decree, subsequent to such mortgage, who has been served with a copy of the notice of sale.* 40. An affidavit of the facts and circumstances of the sale must be made by the person who ofiioiated as auctioneer ; an afiSdavit of the publication of the notice, by the printer of the newspaper in wliich the same was inserted, or his foreman; and an affidavit of affixing the notice, and, also, an affidavit of sei-ving the same, by the person, or persons, performing such duty; which affidavits may be taken by any judge of a court of record, supreme court commis- sioner, or commissioner of deeds, and may be filed and recorded in the clerk's office of the county in which the sale took place. Such affidavits will constitute the evidence of the sale, and foreclosure of the equity of redemption, without any conveyance ; although it is better for the purchaser, when not a mortgagee or assignee, to take a deed, with the usual covenants of warranty, &c., of such mort- gagee, or assignee, Where there is the least possible doubt in regard to the title.'' 41. The purchaser of lands, on foreclosure and sale under a mort- gage, is entitled to the growing crops sown by the mortgagor.' ■ 2 R. S. (3d ed.,) 632, § 3; Laws of 1842, ctap. 2?? ; Laws of 1844, chap. 346. a 2 R. S. (3d ed.,) 633, § 6 ; 4 Denio, 104. 3 2 R. S, (3d ed.,) 633, §§ 6, 7 ; 4 Cowen, 266; 1 Paige, 53. « 2 R. S. (3d ed.,) 633, 5 8 ; 10 Johnson, 185 : 4 Paige, 58, 631 : 1 Hill, 107 ; 6 Id., 65. 6 2 R. S. (3d ed.,) 634, S5 9-14 ; 4 Denio, 41 2 Denio, 174. CONVEYANCES BT DEED AND MORTOAGK. Igg FORMS. § 308. Simple Deed. This indenture, made the day of , in the year of oiir Lord one thousand eight hundred and ,' between A. B., of, «fec., of the fct part, and 0. D., of, • President of the Bank of G.H. \ §317. Deed of Mortgaged Premises, on Foreclosure ly This indenture, made the day of , in the year of our Lgrd one thousand eight hundred and , between 0. D., o^ and C. D., of, &o., of the second part: Whereas, by a certain deed of bargain and sale, bearing date on or about the, &c., and made between C. B. and A. B., of the one part, and the said C. D. of the other part, for the consideration of doUars, the premises therein mentioned and hereinafter intended to be released and con- firmed, are thereby granted and conveyed, or intended so to be, tmto and to the use of the said C. D., his heirs and assigns, forever ; as by the said indenture of bargain and sale, relation being thereunto had, may more fully appear. And whereas, the said A. B., at the time of the date and makiig the said in part recited indenture of bargain and sale, was not of the age of twenty-one years, but hath since attained to such age, and hath this day, and before the execution of these presents, duly sealed and deHvered the said in part recited in- denture of bargain and sale: Now this indenture witnesseth: that, as well in the pc-formance of a covenant for further assurance in the said indentm-e of bargain and sale contained, as also for and in con- sideration of the sum of dollars, to him, the said A. B., in hand paid by the said C. D., the receipt whereof -the said A. B. doth hereby acknowledge, he, the said A. B., hath remised, released, aliened and quit-claimed, and by these presents doth absolutely re- mise, release, alien and forever quit-claim and confirm, unto the said C. D., in his actual possession now being, by virtue of the before mentioned indenture of bargain and sale, and to his heirs and assigns, CONVEYANCES BY DEED AND MORTGAGE. ITS all [description:} To liave and to hold tlic above mentioned premises to the use of the said C. D., his heirs and assigns, forever. [Insert such covenants as may be necessary.} In witness, &c., [as in § 308.] § 332. Confirmation of Deed by Endorsement. Be it known, that the within indenture was executed by A. B., therein named, while imder the age of twenty-one years, who has now attained his full age of twenty -one years ; and that the said A. B. has, on this day of , sealed and delivered this present indenture as his own act and deed. In witness whereof, the said A. B. has hereunto set his hand and seal, the day and year above written. Sealed, &c., [as in § 308.] § 333. Conveyance by Lease and Release} [lease.] This indenture, made, &c., between A. B., of, &c., of the first part, and C. D., of, &c., of the second part, witnesseth : That the said A. B., for and in consideration of the sum of one dollar, to him in hand paid by the said C. D., at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained and sold, and by these presents doth grant, bar- gain and sell, unto the said C. D., his executors, administrators and assigns, all, [description^ and the reversion and reversions, remainder and remainders, rents, issues and profits, of all and singular the said premises, and every part and parcel thereof, with the appurtenances : To have and to hold the said lands, hereditaments and premises, above granted, bargained and sold, and every part and parcel thereof with the appurtenances, unto the said C. D., his executors, administrators and assigns, from the day before the day of the date hereof, for and during, and until, the full end and term of one whole year, from thenceforth next ensuing, and ftdly to be completed and ended, yielding and paying therefor, at the expiration of the said year, one farthing, if the same shall be lawfuEy demanded ; to the intent that, by virtue of these presents, and by force of the statute made for the transferring of uses into possession, he, the said C. D., may be in the actual possession of all and singular the said premises above bar- gained and sold, with the appurtenances, and be thereby enabled to ^ The lease ehould precede the release, and should be dated the day before the latter. Any covenants that may be required, can be inserted before the in testimonium clause in ttas release. 174 NEW clerk's assistant. take, and accept of, a grant and release of the reversion and inheri- tance thereof, to him and his heirs, to, for and upon, such uses, in- tents and purposes, as in and by the said grant, or release, shall be thereof directed or declared. In witness, &c., [as in § 308.] [eelease.] This indenture, made, &c., betwen A. B., of, - ^ » [l. s.] G. H. (fee, (fee, ) ° ' ''• § 336. Mortgage}- This indenture, made the day of , in the year of our Lord one thousand eight hundred and , between A. B., of, 1 A nioi'tgage given for the purchase I liens, founded on any demand against Ihe money of the premises therein described, or mortgagor or his assigns, wliellier precedent any part thereof, has priority over all other \ or subsequent to sucli mortgage. 176 NEW 'OLEBE'S ASSISTANT. &c„ of the first part, and C. D., of, •' • > vs I 8 2 R. S. (3d ed. ,) £39, 640, §§ 1 17-120. CORONERS. 189 more, of tlie juiy appear, tliey are to be sworn by the Coroner. He bas tbe power to issue subpoanas for witnesses, returnable forthwith, or at such time and place as he shall appoint ; and it is his duty to cause some surgeon, or physician, to be subpoenaed to appear as a witness on the inquest Witnesses duly subpoenaed are liable to the same penalties, and their attendance may be enforced in the same manner, as in Justices' courts.' 5. The jury, upon the inspection of the person dead or wounded, and after hearing thf testimony, are to deliver to the Coroner their mqiiisition in writing, signed by them ; in which they must state all the circumstances attending such death or wounding, and who were guilty thereof, either as principal or accessory, and in what manner. If the jury find that any murder, manslaughter, or assault, has been committed, the Coroner is required to bind over the witnesses to ap- pear at the next criminal court to be held in the county, at which an mdictment can be found ; and he has the power to issue process for the apprehension of persons charged with any such offences, and to examine them, in the same manner as Justices of the Peace. The testimony of all witnesses examined before a Coroner, is to be re- duced to writing, and returned by him, with the inquisition, and all recognizances and examinations taken by him, to the next criminal court of record held in the county." 6. In case of the absence, or inability to attend, from sickness or any other cause, of the Coroner of the city and county of New York, any Alderman, or special Justice, of the city, may perform any duty appertaining to the office of such Coroner, in regard to the holding of inquests.' v. No Coroner can hold an inquest in any state prison, upon the body of any deceased convict, unless requested so to do by the agent, physician, or chaplain of the prison; or by any of the state prison inspectors. It is the duty of every agent, however, to call a Coroner, in all cases of the death of a convict other than from ordinary sick- ness.* 8. The Coroners of the several counties of this State are required to deliver over to the respective County Treasures, all moneys, or other valuable things, found with or upon the bodies of deceased persons ; or when inquests are held, if the same be unclaimed by the legal representatives of such person or persons, within sixty days after holding such inquest. Before auditing and allowing the ac- counts of the Coroners, the Supervisors of the county are to require " from them respectively, a statement in writing, verified by oath, or affirmation, of aU money or other valuable things, found, as afore- said, and of the disposition of the same.' 1 2R. S. (3ded.) 827, 5§ 1— 4j Laws of 1847, chap. 118. = 2R. S. (3d ed.) W, 828, §§ 5-8; 24 WendeU, 520. a 2R. S. (3ded.) 828,59. * 2R. S. (3d ed.) 869, 5100. » LawBof 1842, chap. 165. 190 NEW clerk's assistant. FORMS. § 854. Oath to he Administered to the Foreman of a Coroner's Jury. You do swear that you will well and truly inquire how, and in what manner, and when and where, the person lying here, [or, as the case may ie,] came to his death, [or, was wounded,] and who such person was, and into all the circumstances attending such death, [or, wounding,] and hy whom the same was produced, and that you will make a true inquisition thereof, according to the evi- dence offered to you, or arising from the inspection of the body. So help you God. § 355. Oath of other Jurors. The same oath which A. B., the foreman of this inquest, hath on his part taken, you, and each of you, do now take, and shall well and truly observe and keep, on yoiu* parts. So help you God. § 356. Oath of Witness on Coroner's Inquest. The evidence you shall give upon this inquest, touching the death of C. D., [or, the person whose body has been viewed,] shall be the truth, the whole truth, and nothing but the trutL So help you God. § 357. Inquisition of Murder. State of New York, ) ^^. County, ) An inquisition taken for the people of the State of New York, at the house of K. F., in the town of , in said county of , on the day of , A. D., 18 , before me, G. H., one of the Coroners in and for said county, upon the view of the body of C. D., [or, a person unknown,] then and there lying dead, upon the oaths of A. B., E. F., L. M., &c. &c., good and lawful men of the said county, who, being duly sworn to inquire, on the part of the people of the State of New York, into all the circumstances attending the death of the said C. I)., [or, person unknown,] and by whom the same was produced ; and in what manner ; and when and where the said C. D. [or, person unknown] came to liis death, do say, upon their oaths, as aforesaid, that* one O. P., of [or, late of] the town of , in the county of , aforesaid, [or, as the case may &e,] on the day of , in the year 18 , at o'clock in the afternoon of that day, with force and amis, did, at , in the county of , aforesaid, then and CORONERS. 191 there, feloniously, violently, and of his malice aforethought, make an assault in and upon the body of the aforesaid 0. D., [or, person im- known,] then and there present ; and that the aforesiiid O. P„ then and there, with a certain sword made of iron and steel, [or, with a certain instrument made of, &o., to them unknown ; or, as the case may 6e,] wliich he, the said 0. P., then and there held in his right hand, violently, feloniously, and of liis mahce aforethought, inflicted a mortal wound, [or, wounds] upon the left breast [or, as the case may J«] of the said C. D., of which said mortal wounds the said C. D., then and there instantly, [or, on the day of, &c.,] died; and so the said jurors do say that the said 0. P. did then and there leloniously kill and murder the said C. D., against the peace of the people of this State, and theii- dignity. [Jf necessary, add: And the said jurors further say, upon their oaths, as aforesaid, that C. P., of, &c., and R. M., of, &c., were felo- niously present with loaded pistols, [or, drawn swords; or, as the case may ie,] at the time of the felony and murder aforesaid, in form aforesaid committed, that is to say, on the day of , 18 , aforesaid, at the town of , aforesaid, in the said county of , at o'clock in the afternoon of that day ; and that the said C. P., and R. M., did then and there comfort, aid and abet, the said 0. P., in doing and committing the felony and murder aforesaid, in the manner aforesaid, against the peace of the people of this State, and their dignity.] In witness whereof, as well the said Coroner, as the jurors, afore- said, have to this inquisition set their hands and seals, on tbe day of the date of this inquisition, as aforesaid. G. H., Coroner. \. s.^ A. B. 'l. s.° E. F. L. S.' L. M. 'l. 8." &c. &c. L § 358. Inquisition where Murderer u Unhnown. State of New York, ) County, j An inquisition, &c. ; [as in §357 to the *, and then continue as follows:^ a certiiin person unknown, on the day of, ifec, [as in § 357, to the end, substituting " certain person unknown " for "0. P.," in all cases; and, if necessary, add the following: And the said jurors, upon their oaths aforesaid, further say, that tlie said cer- tain person unknown, who committed the felony and murder afore- said, after he had committed the same, in manner aforesaid, did flee away to parts unknown, against the peace of the people of this State, and their dignity.] In witness, &c., [as m § 357.] 192 ■ NEW clerk's assistant. § 359. Inquisition on a Person who has Committed Suicide. State of New York, ) County, j ^ ■ An inquisition, &c. ; [as in § 357, to the *, and then continue as follows: J the said C. D. [or, person unknown] did, on the day of ,18 , at the town of , in said county of , voluntarily, and of his own malice aforethought, inflict a mortal wound, [or, wounds,] in and upon the body of him, the said C. D., [or, person unknown, of which said mortal woimds the said C. D., [or, person unknown,] then and there instantly died ; [or, as the case may iey] and so the jurors aforesaid, upon their oaths afore- Sfud, say that the said C. D., [or, person unknown,] did, then and there, in manner aforesaid, and at the place aforesaid, voluntarily, and of his own malice aforethought, MU and murder himself, the said C. D., [or, person unknown,] against the peace of the people of this State, and their dig-nity. In witness, &c., [as in § 357.] § 360. Inquisition where One has been Wilfully Poisoned. State of New York, ) . County, j An inqmsition, &c., [as in § 357, to the *, and then continue as follows :'] one 0. P., of, &c., [or, late of. &c.,] on, &c., at o'clock in the forenoon of that day, with force and arms, did, at in the county of , aforesaid, then and there feloniously, willfully, and of his malice aforethought, mix and mingle a certain quantity of wliite arsenic, the said 0. P. then and there knowing the said white arsenic to be a deadly poison, in a certain quantity of coffee, [or, as the case may Se;] and the said 0. P., afterwards, to wit : on the same day and year last aforesaid, at the time and place last aforesaid, con- triving and intending the said C. D. [or, person unknown,] with poison feloniously to kill and murder, did, feloniously, wilfully, and of his malice aforethought, offer and give the poison aforesaid, so mixed and mingled as aforesaid, to him, the said C. D., [or, person unknown,] to take, drink and swallow; and that the said C. D., [or, person imknown,] not knowing the poison aforesaid to have been mixed and mingled as aforesaid, afterwards, to wit: on the same day and year last aforesaid, and at the time and place last aforesaid, by the procurement and persuasion of the said 0. P., did take, drink and swallow the said poison, so as aforesaid mixed and mingled by the said 0. P. ; and thereupon the said 0. D., [or, person urinown,] by reason of the taking, drinking, and swallowing, the poison as afore- said, became then and there sick, and distressed in his body ; and the said, C. D., [or, person unknown,] on the day of ,18 , CORONERS. 19! did die of the poison aforesaid, given and taken as aforesaid, and of the sickness and distemper thereby occasioned ; and so the said jxirors say, that the said 0. P. did feloniously, wilfully, and of his malice aforethought, and in the manner, and by the means aforesaid, poison, loll and murder, the said C. D., [or, person unknown,] against th« peace of the people of this State, and their dignity. In witness, &c., [as in § 357.] § 361. Inquisition where One Poisons Himself. State of New York, ) ^ . County, J An inquisition, &c., [as in § 357, to the *, and then coniiniie as follows:^ the said C. D., [or, person unknown,] on the day of, &c., at, (fee, in the county aforesaid ; did voluntarily, [or, when in a deranged state of mind,] mix and mingle a certain quantity of white arsenic, the said C. D. then and there knowing the said white arsenic to be a deadly poison, [or, through mistake, the said C. D. not knowing that the said white arsenic was a deadly poison,] in a certain quantity of coflfee, [or, as the case may hef\ and the said C. D. did then and there, at the time and place aforesaid, drink and swallow the poison aforesaid, so as aforesaid mixed and mingled, whereby and by reason of which, he became sick and distressed in his body; and the said 0. D., on the day of ,18 , did dis of the poison aforesaid, so taken as aforesaid, and of the sickness and distemper thereby occasioned : And so the jurors aforesaid, upon their oaths aforesaid, say that the said C. D. did voluntarily, [or, when in a deranged state of mind; or, through mistake,] kUl himself in man- ner and form as aforesaid. In witness, &c., [as in § 357.] § 362. Inquisition where One Browns Himself. State of New York, ) County, J An inquisition, (fee, [as in § 357, to the *, and then continue at follows:'] the said C. D., [or, person unknown,] on the day of , (fee, at, (fee, in the county aforesaid, voluntarily, and of his own malice aforethought, drowned himself in the river, situate in the town of , aforesaid: and so the jurors aforesaid, upon theii oaths aforesaid, say that, tfec, [as in § 361, to the end^ 13 194 NEW clerk's assistant. § 363. Inquisition where One is Browned hy Accident. Stateof New York, )g. County, j An inquisition, &c., [as in § 357, to the *, and then continue as foUowsi] the said 0. D., [or, person unknown,] on the day of, &c., at, &c., in the county aforesaid, went into the river, situate in the town of , aforesaid, to bathe, and then and there casually, accidentally, and by misfortune, was suffocated and drowned in the water of the said river, of which suffocating and drowning the said C. D., [or, person unknown, then and there died; and so the jurors aforesaid, upon their oaths aforesaid, do say that the said C. D., \or, person unknown,] in the manner and by the means afore- said, casually, accidentally, and by misfortune, came to his death and not otherwise. In witness, &c., \as in § 357.] § 364. Inquisition on a Person who has Died a Natural Death. StateofNew York, ) g. County, j An inquisition, &c., [as in § 357 to the *, and then continue as follows :'\ the said C. D., [or, person unknovra,] on the day of, &c., at, &c., in the county aforesaid, was found lying dead on the highway, near the house of A. B., in the town of , [or, as the case may bef\ and that he had no marks of violence appearing on his body; and so the said jurors, upon their oaths as aforesaid, do say that the said C. D., [or, person unknown] died by the visitation of God, in a natxiral way, and not otherwise. In witness, &c., [as in § 357.] § 365. Inquisition on a Person Fomid Dead, with MarJcs of Violence. State of New York, ) . County, ) An inquisition, &c., [a,s in § 357 to the *, and then continue as follows .■] the said C. D., [or, person unknovra,] on, &c., at, For different forms of warrants, subpenas, reco^zancei, &c., eee Chapter XXV, CORONERS. 197 § 370. Exandnaiion before Coroner and Jury. State of New York, ) . County, ) Examination of witnesses produced, sworn and examined, on, & 2 Demo, 61. 206 KEW clerk's assistant. more fit persons, as trustees of the estate of the debtor. Whenever the imprisoned debtor is lawfully discharged from imprisonment, the trustees are bound to surrender up to him all his real and personal estate, and all moneys belonging to him, in their hands, after retain- ing sufficient for their expenses and lawful commissions.^ 10. Assignees, or trustees, of insolvent or imprisoned debtors, may be appointed to fill vacancies, by the officer before whom the former proceedings were had, or his successor in office, or any other officer residing in the same coimty with the original assignee or trustee, to whom the petition might> in the first instance, have been presented. The appointment must be certified, and filed in the Clerk's office of the county." FORMS. § 386. Letter of License to a Debtor. To all to whom these presents shall come : We, E. F., o^ &c., and G. F., of, (fee, [jiame tlie several creditors^ whose names are under- written, and seals affixed, creditors of A. B., now or late of , send greeting: Whereas, the said A. B., on the day of the date hereof, is indebted unto us, the said creditors, in divers sums of mo- ney, which, by reason of great losses and misfortunes, he is not at present able to pay and satisfy, without respite of time be given him for that purpose : Know ye, therefore, that we, the said creditors, and every one of us, do, by these presents, severally give and grant unto the said A. B., free license, liberty and leave, to come, go and resort, unto us, and every of us, his said creditors, to compound and take order with us, and every one of us, for our and every of our debts; and also go about his other business and affairs, at his free will and pleasure, from the day of the date hereof, imtil the full end and term of months next ensuing, without any let, suit, trouble, arrest, attachment, or other disturbance whatsoever, to be offered or done unto him, the said A. B., his wares, goods, money, or merchandise, whatsoever, by us, or the assigns of us,' or any or either of us, or by our or any of our means or procurement ; and we, the said creators, severaUy and respectively, each for himself his executors and administrators, do severally, and not jointly, cove- nant and agree, to and with the said A. B., his executors, adminis- 1 2 R. S. (3d ed.) 74, 7S, 5§ 1-5; 15 Wen- I a Laws of 1846, chap, 168. deU, 260. I DEBTOR AND OKEDITOK. 201 trators, and every of them, by these presents, that if any trouble, vexation, wrong, damage, or hinderanoe, shall be done unto him, the said A. B., either in his body, goods, or chattels, within the said term of months, from the date of these presents, by us, or any of us, contrary to the tenor and effect of this our license, that then he, the said A. B., his executors and administrators, shall be acquitted and discharged towards and against him and them, of us, his and their executors, administrators, partners and assigns, and every of them, by whom and by whose means he shall be vexed, arrested, troubled, imprisoned, attached, grieved, or damnified, of aU manner of actions, suits, quarrels, debts, dues and demands, either in law or equity, whatsoever, from the beginning of the world to the day of the date of these presents : provided always, nevertheless, and it is the true intent and meaning of these presents, and of the said par- ties hereunto, that if all the said parties shall not subscribe and seal these presents, then, and in such case, the liberty and license hereby givea and gTanted, and every clause, covenant, matter and thing, herein contained, shall cease and be utterly void, to all intents and purposes ; any thing hereinbefore contained, to the contrary thereof, in any wise notwithstanding. In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day of , 18 . Signed, sealed and dehvered ) E. R [l. s.] in presence of ) 2 R. S. (3d ed.) 583, SI 4, 6. chap. 438, Pail I, title iv, § 30, sub. 4: i Wen- " 2 R. S. (3d ed. ) 583, §§ 6-8. deU, 630; 12 Id., 133.. DOWER. 226 improvements made since the death of the husband, by any heir, owner, or guardian ; and, if practicable, award such improvements within that part of the lands not allotted to the widow ; and if not practicable, they shall make a proportionate reduction therefor, from the lands so allotted to her. The commissioners are also required to . make a fuU and ample report of their doings, to the Court or Surro- gate appointing them; in which report, the quantity, courses, dis- tances, posts, stones and other permanent monuments, of the premises, must be particularly described and set forth. They may employ a surveyor, with necessary assistants, to aid them in the admeasurement.' 19. Within thirty days after the confirmation of the admeasure- ment by a County Court, or Surrogate, any party aggrieved may appeal to the Supreme Court, on giving a bond, to be approved by the County Judge, or Surrogate, in the penal sum of one hundred dollars ; and the Supreme Court shall then proceed to hear and de- termine the said appeal, and to review all the proceedings upon the application, and do therein what shall be just," 20. Real estate assigned to a widow as dower cannot be sold un- der the order of a Surrogate, for the payment of debts owing bj her deceased husband.* FORMS. § 418. Assignment of Dower. This indenture, made the day of, &c., between E, B., son and heir of A. B., late of, (fee, of the one part, and M. B., who ia the widow of the said A. B., [or, C. D., and M., his wife, (late M. B.,) who was the widow of the said A. B.,] of the other part: Whereas, the said A. B. was, in his hfetime, and at the time of his death, seized in his demesne, as of fee, of and in divers lands and tenements in , in the county aforesaid, which, upon the de- cease of the said A. B., descended unto the said R. B. : Now, there- fore, this indenture witnesseth, that the said R. B. hath endowed and assigned, and by these presents doth endow and assign, unto the said M. B., [or, as aforesaid,'] the third part of the said lands and tene- ments, to wit: [description:] To have and to hold the said premises unto the said M. B., [or, as aforesaid,] for and during the natural life 1 2 R. S. _(3cl ed.) 583^584, §5 9-17: 1 Cow- 1 ^_» 2 R. S. (Sd ed.) 585, 686, §§ IS-ZTj 2 Bill, en, 476: 4 Wendell, 630; 8 Id., 460; 10 Id., 544, 480; 2 Hill, 544. „ I " 2 Comstock, 246. 15 226 NEW clerk's assistant. of the said M., in severalty, by metes and bounds, in the name of dower, and in recompense and satisfaction of all the dower which the said M. ought to have, of or in the said lands and tenements which were of the said A. B., in , aforesaid. In witness whereof, the said E. B. hath hereunto set Ms hand and seal, the day of , in the year eighteen hundred and Sealed, signed and delivered, ) R. B. [l. s.] in presence of j G. H. § 419. Release of Dower to the Heir. Know all men, &c.: That I, M. B., &c., r^'ict of A. B., late of, &c., as well for and in consideration of the sum of dollars, to me paid, by my son, K B. of, &o., as for tlie love and affection which I have to my said son, have granted, remised, released, and forever quit-claimed, and by these presents do grant, remise, release and quit-claim, unto the said R. B., his heirs and assigns, forever, all the dower and thirds, right and title of dower and thirds, and all other right, title, interest, property, claim and demand, whatsoever, in law and in equity, of me, the said M. B., of, in and to, \dcscrip- t{on;'\ so that neitlier I, the said M. B., my heirs, executors, or administrators, nor any other person or persons, for me, them, or any of them, shall have, claim, challenge, or demand, or pretend to have, claim, challenge, or demand, any dower or tliirds, or any other right, tide, claim, or demand, of, in, or to, the said premises, but thereof and therefrom shall be utterly debarred and excluded forever, by these presents. In witness whereof, I have hereunto set my hand and seal, the day of, &c., \as hi § 418.] § 420. Petition for Bower. To the Supreme Court of the State of New York: \or, To the County Court of the Counly of, &o. ; or, To the Sun-ogate of the County of :]* The petition of M. B., of, &c., widow of A. B., of, (fee, deceased, respectfully showeth, that her said husband died on the day of ,18 , at, &o., leaving an estate in fje bcl(jnging to him when he died, in and to \_dcscrihe the real cutute;^ that she has not had her dower therein assigned to her, within forty daj's affcr the decease of her said husband, nor at any time since. Wlierrfore, she respectfully applies to this honorable Court, \_or, to the said Surro- gate] for the admeasurement of her said dower. Dated, cko. M.B. B. F. H., Attorney. nowKB. 22t § 421. Notice to he Annexed to Petition. To l^inscrt the names of the heirs or owners:'] riietise take notice, that a petition of which the above is a copy, will be presented to [name the Court or Surrogate,'] on the day of ,18 , at, &c., and that a motion will then and thera be made to grant the same. Dated, &c. ^ M. B. R F., Attorney. 8 422. JVbtice by Heirs or Owners, if Widow does not apply. To M. B., widow of, (Sic. : [or if she has a second husband, address u to both:] Please taie notice, that the subscribers, who, as heirs of A. B., deceased, [or, as owners,] claim a freehold estate in and to the fol- lowing real estate, [description^ require you to demand your dower therein, within ninety days after the service of this notice. Dated, &c. [Signatures^ 8 423. Petition by Heirs or Otuners. To, &c., [as in § 420, to the *, and then continue asfolloios:\ The petition of, &c., {iiaming the heirs,] heirs of A. B., deceased, late of, &c., [or, owners of the real estate hereinafter mentioned, foi^ merly belonging to A. B., of, (fee.,] respectfully showeth : That the said A. B., died on, &c., at, Ac, leaving an estate in fee belonging to him when he died, in and to all, [descri2ytion ;] in which said pre- mises M. B., the widow of the said A. B., is entitled to dower; that the said M. B., has not had her dower therein assigned to her within ninety days after the decease of her said husband, nor at any time since ; nor has she made any application, or instituted any proceed- ings, for the recovery of the said dower : wherefore, the undersigned petitioners respectfully apply to this honorable Court [or, to the said Surrogate] for the admeasurement of the dower of the said M. B. Dated, &c. [Signatures.'] §424. Order for Admeasurement of .Power. On hearing Mr. D. W., for M. B., widow of, &c., and Mr. C. M., in opposition thereto, and on reading and filing the petition of, &c., and the notice accompanying the same, and an affidavit of the due ser- vice of the said petition and notice on [name the persons;] this coiu-t doth order admeasurement to be made of the dower of tlie said 'M, B., in and to [describe the lands;] and C. D., E. F., and L. M., three reputable and disinterested freeholders, are hereby appointed com- missioners for the purpose of making the admeasurement herein di- 828 NEW clerk's assistant. rected, and are required to make report of their proceedings therein to this court, with all convenient speed. D. W., for the widow. C. M., in opposition. § 425. Oath of Commissioners. We, C. D., E. R, and L. M., appointed commissioners by a rale, [or, order,] a copy whereof is hereunto annexed, do swear that we will faithfully, honestly and impartially, discharge the duty, and exe- cute the trust reposed in us by the said appointment Sworn to, this day of , ) C. D., ^ 18 , before me, J E. F., \ Commissioners. G. H., Justice of the Peace. L. M., ) § 426. Report of the Commissioners. To [the Court, or Surrogate :'\ We, the undersigned, appointed commissioners, under and by vir- tue of a rule, \or, order,] a copy whereof is hereunto annexed, do respectfully report, that we proceeded to admeasure and lay off, as speedfly as possible, after the said rule or order, the one-thu-d part of the lands embraced in the order for our appointment, as the dower of M. B., named therein, designating such part with posts, [or, with stones ; or, with permanent monuments ;] and in doing so, we took into view the permanent improvements made on the said lands by any heir, g-uardian of minors, or other owners, since the death of the husband of the said M. B., [or, since the alienation thereof by the [first] husband of the said M. B.,] and we found it [not] practicable to award such improvements within that part of the said lands not allotted to the said M. B. : [If not practicable, add: and therefore we made from the lands allotted to the said M. B., a deduction pro- portionate to the benefit she will derive from such part of the said improvements as is included in the portion assigned to her.] We fur- ther report, that we employed 0. P., a sworn and skillful surveyor, with necessary assistante, to aid us in making the said admeasure- ment; and we further report, that [insert a full and ample statement of the proceedings, with the quality, courses and distances, of the land admeasured aud allotted to the widow, a description of the posts, stones, or other permanent monuments thereof, and the items of the commissioners' charges.^ Given under our hands, at, &c., on, &c. [Signatwres and seals-l DOWER 229 § 427. Appeal to Supreme Cowrt. To {the County Court, or Surrogate i]. Please to take notice, that I liereby appeal to the Supreme Court of the State of New York, from [state the order at large."] Dated, &c. M. B., [or, as the tase may be."] Q. U., Attorney. § 428. £ond on Appeal. Know all men by these presents : That I, M. B., of the town of in the county of , and State of New York, am held and firmly bound unto C. B., of the same place, in the sum of one hun- dred dollars, lawful money of the United States, to be paid to the said C. B., his executors, administrators, or assigns; for which payment, well and truly to be made, I bind myself, my heirs, executors and administrators, firmly by these presents. Sealed with my seal. Dated the day of , one thousand eight hundred and The condition of this obligation is such, that if the said M. B. shall diUigently prosecute a certain appeal from [here describe the order, f6c., appealed from;] and shall pay all costs which may be adjudged by the Justices of the Supreme Court of the State of New York; against the said M. B., on such appeal, then this obligation to be void; otherwise, to remain in full force and virtue. Sealed and delivered, ) M. B. [l. s.] in presence of J G. H. E. F. The security in this bond is approved. Dated, &c. J. P. H., County Judge, &c., [or. Surrogate.] CHAPTER XVII. EXCISE. PRACTICAL REMARKS. 1. The Supervisor of every town, and the Justices of the Peace resident therein, are Commissioners of Excise for their town; three of them, consisting of the Supervisor, and and two of the Justices, ai-e competent to execute the powers vested in the board. If the office of Supervisor be vacant, then any three of the Justices may form a board. If there be not two Justices in the town, then any two Justices of a neighboring town may be associated by the Super- Tisor with him.' 2. The Commissioners of Excise are to meet on the first Monday of May, in each year, in their respective towns, and on such other days as tlie Supervisor shall appoint, at such place as shall be desig- nated by him ; or, in case his office be vacant, on such other days, and at such places, as the Justices of the Peace of the town may appoint' 3. Boards of Excise are required to keep a book of minutes of their proceedings, in which shall be entered every resolution granting a license to any person ; which minutes shall be verified by their signatures, and filed with the Town Clerk within five days." 4. The Board of Excise of any town, or city, has 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 resi- dents, licenses to sell such liquors or wines, not to be drunk, however, in their shops, houses, out-houses, or gardens.* 5. Licenses to keep taverns may 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.' ' 1 R. S. (3d ed.,) 852, § 1 J 1 Johnson, 500 ; | = 1 R. S. (3d ed.,) 8S2, § 3 ; 1 IIlll, 665. a Johnson's Cas. 3i6. « 1 R. S. (3d ed.,) 852, 64; 15 WendeU, 260. » 1 R. S. (3d ed.,) 852, § 2. » Laws of 1843, chap. Sr. EXCISE. 231 6. Commissioners of excise are not allowed to receive any fee whatsoever, from applicants for licenses.^ v. Ale and strong beer are included in the terms " strong and spirituous liquors," as used in the Kevised Statutes.' 8. Before any license can be granted, the applicant must execute a bond to the people of this State, in the penal sum of one hundred and twenty-five dollars, and with a sufBcient surety, to be approved by the board, conditioned as in one of the forms hereinafter given ; which bond is to be filed in the office of the Town Clerk, within five days after the execution thereof. Where a hcense is to be gTanted to any person to sell strong and spirituous liquors and \vines, to be di-ank in the house of the seller, the board must be satisfied that he is of good moral character ; that he is of sufficient ability to keep a tavern ; that he has the necessaiy accommodation for travelers ; and that a tavern is absolutely necessary for the actual accommodation of ti-avelers, at the place where such applicant resides, or proposes to keep the same ; all which must be stated in every such hcense.' 9. A board of excise, under the laws now in operation, until the actual entry of a resolution to grant a license, have a large discretion to exercise on the subject of granting or refusing licenses, with which our courts A^ill not interfere.' 10. It is not necessary, where the SupeiTisor and two Justices form a board of excise, that aU should sign a license ; if signed by any two Commissioners, at a regular meeting of the board, the license is valid.' 11. When a license is duly granted and issued, it continues in force, unless sooner revoked, till the day after the first Monday in May in the succeeding year." 1 2. No person, who has not at the time a license to keep a tavern, can erect, put up, or keep up, any sign indicating that he keeps a tavern, without subjecting himself to the penalty of one dollar and twenty-five cents for every day such sign shall be kept up.' 1 3. A person who sells liquor without a Hcense, in violation of the excise law, cannot recover payment for the same of the pur- chaser. ° 14. The sale of spirituous liquors, or intoxicating drinks, to any Indian residing' in the State of New York, is expressly forbidden by the laws thereof; and any person ^^olating the same is guilty of a misdemeanor, and hable to be punished by fine and impiisonment." 1 Laws of 1S43, chap. 97. 3 3 Ucriio, 4": 3 1 R. S. (3'UiI.,)f:-.3, K'',8;ld.,8M, §15; H Johnsoi], iai ; 8 Cowen. 130; 1 Hill, 055. < 1 R. S CM ed .■) 853; §.4; 15 Wendell, 260; 1 Hill, 655; 1 Denio, 640. s 1 Johnson, 500, 8 1 R. S. (3d cd.,) 853, § 5; U Johnson, 179 ; 2 Johripon's Caa., 346 ; 1 Denio, 149. 7 I.awp of 1;-.13, cliiip. 97. B 3 Denio, f 6. 8 Laws of 1S49, chap. 420. f32 NEW CLERK'S ASSISTANT. FORMS. § 429. Notice of Supervisor for Special Meeting of the Commis- sioners of JSxcise} To H. R F., Esq., one of the Justices of the Peace of the town of : You are hereby notified, that a meeting of the Commissioners of excise of SEiid town, will be held at my office, [or, at the house of H. C.,] on the day of instant, at ten o'clock in the forenoon, for the purpose of acting upon such business as may be brought before them. Dated , July 10, 1847. Yours, &c., E. W., Supervisor. § 430. Form of Minutes of Board of Excise. At a meeting of the Commissioners of excise of the town of , in the county of , held on the day of , 18 : Present A. B., Supervisor of the town. cj' m ' [ Justices of the said town, b. 1., I Resolved, That licenses be granted to the following persons, to retail strong and spirituous liquors and wines ; and that the sum to be paid for each license, be the sum put opposite the name of such person, to wit: L. M., as a Tavern Keeper. O. P., as a Grocer. [Insert the sums opposite each nameJ] Resolved, That licenses be granted to the following persons to keep taverns, under the provisions of the act entitled " An act authorizing licenses to keep taverns, -without including a license to sell spirits, and to abolish fees for the same," passed April 12, 1843, to wit: C. D., as a Taivem Keeper. E. F., do. do. In witness whereof, we, the said Commissioners, have hereunto subscribed our names, the day and year above written. A. B., Supervisor. 1 In most of the incorporated villages in this Stale, the boards of Trustees are, ear officio^ commissioners of ex^iise Special meetings are called by the President of {he board, and the proceedings are conducted in the same manner as in towns. The forms herein given may be readily made applicable, by changing the ojl^cial designation of the members of the board. In cities, licenses are granted by the Mayors and Aldermen. EXCISE. 233 § 431. Zicense for Tavern Keeper to Sell Spirituous Liquors. We the undersigned, form i ng a board of Commissioners of excise for the town of , in the county of , having been applied to by L. M., a resident of the said town, who purposes to keep an inn or tavern at , in the said town of , for a license to sell strong and spirituous liquors and wines, to be drank in his [or, her] house ; and being satisfied that he [or, she] is of good moral chai'acter, and of suflScient abihty to keep a tavern, and that he [or, she] has the necessary accommodations to entertain travellers, and that a tavern is absolutely necessary for the actual accommoda- tion of travellers, at the place where he [or, she] purposes to keep the same ; and for which he [or, she] has paid a duty of dollars, determined by us ; we do therefore grant tliis license, and authorize him [or, her] to sell strong and spirituous liquors and wines, te be drank in the inn or tavern to be kept at the place above men- tioned. This license is to be in force imtil the day after the first Monday in May next In witness whereof, we have hereunto subscribed our names, the day of , 18 . A. B., Supervisor. § 432. Bond of Tavern Keeper, on License to Sell Spirituous LAquors, with Certificate. Know all men by these presents : That we, L. M. aaid E. R, of, &c., are held and finnly bound imto the people of the State of New York, in the sum of one hundred and twenty-five dollars, to be paid to the said people ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and admin- istrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , one thousand eight hundred and .* Whereas, the said L. M. intends keeping an inn or tavern, at , in the town of , in said county of , and has applied for a license to sell strong and spirituous liquors and wines, to be drank in the said inn or tavern, to be kept as aforesaid : Now, therefore, the condition of this obligation is such, that if the said L. M., during the time he shall keep an inn or tavern, will not suffer it to be disorderly, or suflFer any cock-fighting, gaming, or play- ing with cards or dice, or keep any billiard table, or other gaming table, within the tavern by him so kept, or in any out-house, yard, or garden, belonging thereto, then this obligation to be void; else to re- main in force. Signed, sealed and delivered, ) L. M. [l. s.l in presence of f E. F. |l. s.] G. H. (&C., <&c 234 NKw cleek's assistant. We, the undersigned, forming a board of Comtnissioners of excise for the town aforesaid, approve of the security to the above bond, as sufficient for the purposes intended. A. B., Supervisor. § 433. License for Tavern Keeper, under Act of 1843. We, the undersigned, forming a board of Commissioners of excise for the town of , in the county of , having been ap- plied to by 0. D., a resident of said town, who purposes to keep an inn or tavern at , in the said town, for a license to keep such tavern, without including a license to sell strong or spirituous liquors, wines, or alcoholic drinks; and being satisfied that he is of good moral character, and of sufficient ability to keep a tavern, and that he has the necessary accommodations to entertain travellers, and that a tavern is absolutely necessary for the actual accommodation of tra- vellers, at the place where he purposes to keep the same ; we do therefore gi-ant this license, and authorize liim to keep an inn or tav- ern at the place above mentioned ; provided, however, that no strong or spirituous liquors, wines, or alcoholic drinks, shall be sold by the said CD., under or by virtue hereof This license is to be in force until the day after the first Monday in May next In witness, &c., [«s hi § 431.] § 434. Bond for Obtaining License, under Act of 1843. Know all men, &c., [as in § 432 to the *, and then add:] Whereas, the said L. M. has applied for a license to keep an inn or tavern in the town of , in the said county of , without including a license to sell strong or spirituous liquors, wines, or alcohoKc drinks, in such inn or tavern : Now, therefore, the condition of this obligation is such, that, (fee, [aw in § 432, to the end.] § 435. Orocer's License. We, the undersigned, forming a board of Commissioners of excise for the town of , in the county of , having been applied to by 0. P., a resident of said town, who purposes to keep a grocery at , in the said town, for a license to sell strong and spirituous liquors and wines, in quantities less than five gallons, and for which he has paid a duty of dollars, determined by us ; and bein"' satisfied that he is of good moral character; we do there- fore grant this hcense, authorizing him to sell strong and spirituous liquors and wines, in quantities less than five gallons, but not to be EXCISE. 235 drank in his sliop, liouse, out-house, yard or garden ; and it is ex- pressly declared, that this license shall not be deemed to authorize such sale of any hquors or wines, to be drank in the house or shop of the said 0. P., or in any out-house, yard, or garden, appertaining thereto, or connected therewith. This license is to be in force until the day after the first Monday in May next. In witness, &c., [as in § 431.] § 436. Grocer's Bond. Know all men, &c., [as is § 432 to the *, and then add:'] Whereas, the said 0. P. has apphed for a hcense to sell strong and spirituous Uquore and wines, at his grocery, in the town aforesaid : Now, there- fore, the condition of tliis obligation is such, that if, during the term for which his license shall be granted, he will not suffer his grocery to become disorderly ; that he will not sell, or suffer to be sold, any strong or spirituous liquors or wines, to be drank in his shop, or house, or in any out-house, yard or garden, appertaining thereto; and that he will not suffer any such liquor, sold by virtue of such hcense, to be drank in his shop or house, or in any out-house, yard, or gai-den, belonging thereto, then this obhgation to be void ; else, to remain in force.' Signed, sealed, &c., [as in § 432.] ^ For the certificate of approval, see § 432, CHAPTER XVIII. PEES OE OEEICEES. PRACTICAL REMARKS. 1. No judicial officer, except Justices of the Peace, can receive, to Ms own use, any fees or perquisites of office.' 2. No officer, or other person, to whom any fee or compensation is allowed by law for any service, can take, or receive, any other, or greater fee or reward, for such service., but such as is or may be allowed by law. No legal fee or compensation can be demanded, or received, by any officer or person, for any service, unless such service was actu- ally rendered by him ; but any officer may demand the fee allowed to him by law for any service, for which he is entitled to requhe payment, before rendering the same." 3. County Judges and Surrogates, are forbidden to perform any official services, imless upon prepayment of the fees and perquisites imposed by law." 4. No fee can be charged by any officer for administering the oath of office to any member of the Legislature, to any Inspector of Elec- tions or to any town officer ; and no more than twelve and a half cents can be charged for administering such oath to any other officer.* 5. Upon the settlement of an execution by a defendant, or upon settling any suit or demand, the Sheriff, or Attorney, claiming any fees which shall not have been taxed, may be required by the defen- dant, on his paying the expense thereof, to have his fees taxed by some proper officer of the court in which the action may be pending, or from which the execution shall have been issued; otherwise, such fees are not collectible.'^ 6. If a Justice render judgment for a greater amount of costs than is allowed by law, or for any item of costs, or fees, improperly. ' Amended Constitution of New York, Art. VI, 5 20. ii'iR. a (3d ed.,)741, « 5, 6 ; 6 Cowen, 661 ; 15 Wendell, 45 ; 23Id., 57 j 26 Id., 451 ; 1 Denio, 668 ; 2 Paige, 475. 8 Laws on849, cliap. 95. * 2 R. S. (3d ed.,) 742, § 17. ' 2 R. S. (3d ed.,) 743, §51,2. FEES OF OFFICERS. 237 and the same be collected, the person paying the same may recover of the party who shall have received such costs, or fees, the amount thereof, with interest' V. AH Clerks and Registers of counties, claiming any fees by vir- tue of their respective offices, upon being required in writing by the party Hable to pay the same, his agent or attorney, and on payment of the expense thereof, must have their fees taxed by some officer au- thorized to tax costs in the Supreme Court ; and either party may appeal from such taxation to the Supreme Court No Clerk or Re- gister can collect any fees, after having been reqmred as aforesaid, without the same are taxed." 8. In order to entitle a Sheriff, or Constable, to liis poundage upon an execution, he must levy the money, or take the body of the de- fendant, except he be prevented by the act of the plaintiff, or the operation of law." 9. A Sheriff, or Constable, can only charge mileage for the actual travel, where there are several defendants in one process, who reside at the same place.* 10. Witnesses who do not attend in obedience to a subpoena, are not entitled to fees, and the party paying them can recover back the money." 11. No town officer is entitled to be allowed any per diem com- pensation for his services, unless expressly proN-ided by law." 12. No travel fees for travelling to subpcena a witness beyond the limits of the county in which the subpoena was issued, or of an ad- joining county, will be allowed, unless it is made to appear to the board auditmg the account, by satisfactory proof, that such witnes could not be subpoenaed, without additional travel ; nor will any tra- vel fees for subpoenaing witnesses be allowed, except such as the board shall be satisfied were absolutely necessary.' FORMS § 437. Arbitrator's Fees. No provision is made by statute for the fees of Arbitrators. The usual custom, however, is to charge the same fee allowed to referees 1 2 R. S. C3ii od.) 361, § 236. 2 Laws of 1844, chap. 127. s 5 JohnsoD, 252; 2 Cowen, 421. 4 1 Wendell, 104. » 6 Wendell, 107; 3 Hill, 467; 4 Id., 595. « Lawa of 1845, chap. 180, § 23. ' Laws of 1846, chap. ISO, i 27; 1 Donio, 658. 238 NEW clerk's assistant. appointed by a court of record, ■s'iz : for each day necessarily spent in the business of the reference, three dollars to each referee, to be paid on making the report, or award, by the prevailing party. A different compensation, however, may be agreed on, in writing, by the parties. § 438. Assessor's Fees. For eacli day actually and necessarily devoted to the service of the town, one doUar and twenty -live cents. § 439. Auctioneer's Commission. Not exceeding two and one-half per cent, on the amount of any sales, unless in pursuance of a previous agreement, in writing, between the auctioneer and the owner, or consignee, of the goods or effects sold. § 440. BroTcer's Fees. Fifty cents for brokage, sohciting, driving, or procuring, the loan or forbearance of one hundred dollars for one year, and in that pro- portion for a greater or lesser terra. Thirty-eight cents for making or renewing any bond, bill, note, or other security, given for such loan or forbearance, or for any counter bond, bill, note, or other security, concerning the same. § 441. County Clerk's Fees. For a trifJ fee, to be paid by the party bringing on an action, one dollar. For entering judgment by filing transcript, six cents. For entering judgment in a civil action, fifty cents, except in courts where the clerk is a salaiied officer, and in such cases one dollar. For copies of all papers and proceedings in civil actions, five cents for eveiy one hundred words. For every certificate, twelve and a half cents; but not to be allowed for certifying a paper to be a copy, for the copying of which he shall be entitled to compensation. Recording conveyances of real estate, and all other instruments which by law may be recorded, ten cents for each folio. Filing everv certificate of the satisfaction of a mortgage, and en- tering suoli satisfaction, twenty-five cents. Entering a minute of a mortgage being foreclosed, ten cents. Entering in a book the bond of eveiy Collector, twelve and a half cents; searching therefor, six cents; entering satisfaction, twelve and a half cents. FEES OF OFFICERS. 239 Eeceiving and filing every paper deposited with Mm for safe Iccep- ing, three cents; searching therefor, three cents for each paper -examined. Receiving and filing the papers of any insolvent, or relating to the proceedings against any absent, concealed, absconding, or imprisoned debtor, twelve and a half cents in each case ; and such papers are not to be charged as having been separately filed : Searching for such papers, six cents for each year for which searches shall be made. Searching and certifying the title of, and incumbrances upon, real estate, ten cents for each conveyance and incumbrance certfiyed by him, instead of fees ; provided that such fees shall in no case amount to less than fifty cents, nor more than five dollars. Searoliing the docket of judgments and decrees, five cents a year, and twelve and a half cents for the certificate. (See 3 Denio, 171.) Searches preparatory to making the loans authorized by the act providing for the loan of certain moneys belonging to the United States deposit fund, three dollars ; except where the regular fcea would be less than that sum. FilLig each chattel mortgage, or cojjy, six cents; six cents each party, for entering ; searching for such papers, six cents each ; and the same fees for certified copies, as for copies of records. To the Clerk of the county of Rensselaer, six cents for filing a chattel mortgage, or copy, and six cents each nam? for docketing. Fihiig and entering a specification, or copy of a contract, in tlie mechanics' and laborers' lien docket, eighteen cents. For an execution issued under the mechanics' and laborers' lien law, one dollar. For services upon the first application of an alien, including the oath or affirmation of intention to become a citizen, record and certi- ficate thereof dehvered to him, twenty cents. For all the services requisite upon the completion of the proceed- ings of an ahen to become a citizen, including the record and a cer- tificate, fifty cents. Determining and certifying the sufficiency of the sureties of any Sheriff, fifty cents. For every report upon the title of the parties in partition, pursuant to a reference for that purpose, one dollar. For every report respecting the incumbrances upon the estate or interest of any party in partition, pursuant to a rule or order for that purpose, one dollar. Imesting the proceeds of the sale of any estate, imder proceed- ings in partition, pursuant to the order of the court, one-half of one per cent, upon any sum not exceeding two hundred dollars, and one- quarter of one per cent for any excess. Receiving the interest on such investments, and paying over the same to the persons entitled, one-half of one per cent. 240 ^BW clkkk's assistant. For attendance in canvassing the votes given at any election, two dollars. Drawing all necessary certificates of the result of such canvass, eighteen cents for each foHo ; and nine cents each folio for the neces- sary copies thereof. Recording such certificates, the same fees as are allowed for re- cording deeds. For making and transmitting certified copies of the returns of Town Superintendents of common schools, six cents for each folio, to be paid by the county. Giving nqtice to the Governor, of persons who have taken the oath of ofiice, three cents for each name. Giving such notice of persons who have neglected to take the oath of oifice, or to file or renew any security, within the time required by law, and of any vacancy created by any oflicer dying or removing out of the county or place for which he was appointed, and of all other vacancies in the county, six cents for each name reported. In otifying every person appointed to office, twenty-five cents; and all expenses actually and necessarily incurred in giving any notice, which the Comptroller shall deem reasonable. Searching for a bail piece, and annexing it to the recognizance roU, twelve and a half cents. Recording every certificate of incorporation, authorized by law to be recorded, seventy-five cents. Entering in the minutes of a court a license to keep a ferry, and for a copy thereof, one dollar; and for taking and entering the recog- nizance, twenty-five cents. For administering an oath or affirmation, in cases where no fee is specially provided, and the certificate, twelve and a half cents. Swearing a witness in the Court of Oyer and Terminer, and Court of Sessions, six cents. Entering, or respiting a recognizance in said Courts, twelve and a half cents. Calling and swearing a jury in the same, nineteen cents. Entering a sentence in the minutes, twelve and a half cents ; and the like fee for every certified copy thereof, and for a transcript thereof for the Secretary of State. For copies of records, indictments, and other proceeding's, the like fees as are allowed in civU cases for copies of papers filed in his office. For taking the acknowledgment of satisfection of a judgment in the Coun,ty Court, thirty-seven and a half cents. § 442. Chrlc of the Board of Supervisors. A reasonable compensation for his services, to be fixed by the board, and to be paid by the county. FEES OF OFFICERS. 241 For a certified copy of any account on file in Ms oflSce, six cents for every folio of one hundred and twenty-eight words. § 443. Commissioners to take Testimony, to he read in Justice^ Courts For taking and returning the testimony on a commission, whether issued to one or more commissioners, one dollar. For every subpoena, or oath, six cents. For serving subpoenas to appear before commissioners, the same fees as are allowed in Justices' Courts. § 444. Commissioners to make Partition, or to Admeasure Dower. For every day's actual and necessary service, two dollars to each eoDMoissioner. § 445. Commissioner of Deeds. For administering an oath or aflarmation, and certifying the same when required, twelve and a half cents. For taMng the acknowledgment of bail in the Supreme Court, and in any Coimty Court, or Mayor's Court, twenty-five cents. Taking the acknowledgment of satisfaction of a decree or judgment, in the Supreme Court, any County Court, or Mayor's Court, thirty- seven and a half cents. Taking and certifying the acknowledgment, or proof, of any con- veyance or mortgage of real estate, or any instrument concerning real estate, which by law may be recorded, — for one person, twenty- five cents, and for each additional person, twelve and a half cents ; (Laws of 184'7, chap. 339;) but when a lease and release of the same premises executed at the same time, they must be considered as one conveyance. Taking an acknowledgment of a power of attorney to appear in a Justice's Court, twenty-five cents. § 446. Commissioners of Excise. One dollar and twenty-five cents to each Commissioner, for one day's attendance only, at the Board of Excise, during anyone year; to be allowed and paid, as other town charges. § 447. Commissioners of Highways. For each day actually and neocessarily devoted to the service of fihe town, one dollar. 16 242 NEW clerk's assistant. § 448. Commissioners to Loan United States Deposit Fwnd. Such Commissioners may retain, out of the interest moneys coining into their hands, the following per centage on the money committed to their charge, as a compensation for their services : upon twenty- five thousand dollars, or a less sum, three-quarters of one per cent. ; upon the fui'ther sum of twenty-five thousand dollars, or less, lialf of one per cent. ; and where the whole sum shall exceed fifty thou- sand dollars, half of one per cent, except in the city and county of New York, in which city and county the commissioners shall, upon aU sums exceeding fifty thousand dollai-s, be permitted to retain only one-quarter of one per cent § 449. Constables' Fees. For serving a warrant or summons, twelve and a half cents. For a copy of every summons dehvered on request, or left at the dwelling of the defendant, in his absence, nine cents. Serving an attachment, fifty cents ; for a copy thereof, and of the inventory of the property seized, left at the last residence of the de- fendant, fifty cente. Serving an execution, or levying any fine or penalty pursuant to any warrant, five cents for every dollar collected, to the amount of fifty dollars ; and two and a half cents for every doUar collected over fifty dollars. For every mUe, going only, more than one mile, when serving a summons, warrant, attachment, or execution, ,six cents: to be com- puted from the place of abode of the defendant, or where he shall be found, to the place where the precept is returnable. Notifying the plaintiff of the service of a warrant, twelve and a half cents; and for going to the plaintiff's residence, or where such notice was served, six cents for every mUe more than one. Summoning a jury, fifty cents. ' Serving a subpoena, twelve and a half cents for each witness served ; but no allowance wiR be made in any judgment, for service upon more than four witnesse."? in any cause. , Serving a summons in special proceedings in civil cases, twelve and a half cents ; serving a warrant, nineteen cents ; mileage, for going only, six cents for each mile. Advertising and selling any property distrained doing damage; or levying any fine, penalty, or sum, pursuant to any warrant; the same fees as are allowed on executions from Justices' Courts. Arresting and committing any person, pursuant to process in spe- cial proceedings in civil cases, fifty cents ; and mileage, for going only, six cents. Attending any court, pursuant to a notice, from the Sheriff, one dollar and fifty cents a day in the city of New York, and one dollar FEES OF OFFICERa. 243' and twenty-five cents a day in each of the other counties of thie State, to be paid by the county. Serving a warrant, or other process, for the arrest of any person, in criminal cases, fifty cents ; and the same fees for mileage as are allowed on wan-ants in civil cases.' Taking a defendant in custody on a mittimus, twelve and a half cents. Conveying a person to the magistrate or court before whom he is to be brought, or to jail, twelve and a half cents, if within one mile; and for every other mile, going only, six cents. For traveling to subpoena witnesses on behalf of the people, such fees as the board auditing the account shall be satisfed were indispea- sably necessary. For other services in criminal cases, for which no compensation is specially provided by law, such sum as the board of Supervisors of tlie county shall allow. For summoning a jury under the provisions of the Revised Sta- tutes in relation to the assignment of the estates of non-resident, ab- sconding, insolvent, or imprisoned debtors, one dollar and twelve and a half cents. For summoning a jury to re-assess the damages for laying out, altering, or discontinuing a road, if from the same town, one dollar; if otherwise, two dollars. For other services, not enumerated above, which may be rendered by a Constable, the same fees as are allowed by law to Sheriffs for similar services. For serving a summons in the city of Albany on one defendant and notifying the plaintiff of trial, thirty-seven and a half cents ; and' twenty-five cents more for service of summons on every other defend- ant named in the same summons ; serving a warrant in a civil suit in the same city, on one defendant, and notifying plaintiff, fifty cents; and thirty-seven and a half cents for e;very additional defendant named in the same warrant § 450. Coroner's Fees. For holding an inquest, and the necessary incidental expenses^ such compensation as shall be allowed by the board of Supervisors of the county. For all other services rendered by them, the same fees as are al- lowed to Sheriffs for similar services. For confining a Sheriff in any house, on civil process, two doUais 1 A Constable is not entitled to mileage, unless the party is arrested, even though he caiv not be found. (1 Denio, 658.) S44 NEW clerk's assistant. for each week, to be paid by such Sheriflf before he shall be entitled to be discharged. § 451. County Judges, in Special Oases' For every day employed in the hearing and decision of appeals in relation to highways, two dollars, to be paid by the party appealing, where the determination of the Commissioner, or Commissioners, shall be affirmed. Taking the acknowledgment of a satisfaction of judgment, thirty- seven and a half cents. Taking a bond in any case required or authorized by law, thirty- seven and a half cents. Deciding on the sufficiency of sureties, and certifying such suffi- ciency when it shall appear, fifty cents. Administering an oath or affirmation, and certifying the same when required, twelve and a half cents. Taking the acknowledgment of bail, twenty-five cents. Taking and certifying the aclaowledgment, or proof, of any con- veyance or mortgage of real estate, or any instrument concerning real estate which by law may be recorded, the same fees as are al- lowed to Justices of the Peace for similar services. ( Laws of 1847, chap. 339.) Keoeiving and filing every petition, and the affidavits, schedules and papers, accompanying the same, upon any apphcation made pur- suant to the provisions of the statute in relation to the assignment of the estates of absconding, concealed, non-resident, insolvent, or im- prisoned debtors, two dollars. For every order, warrant, certificate, or appointment, of trustees or assigns, in such proceeding, thirty-seven and a half cents. Presiding at and conducting any trial by a jury, swearing such jury, receiving and entering their verdict, or discharging them, two dollars ; but not to extend to any trial or inquest in any action at law. Deciding on the propriety of directing an assignment of the estate of any insolvent, or imprisoned, absent, concealed or absconding debtor, two dollars. Signing the discharge of any insolvent or imprisoned debtor, one dollar. For every order, warrant, or attachment, made or issued in any special proceeding authorized by law, thirty-seven and a half cents. 1 Tin! fees receivefl by the County .Judge, after dcducling his salary, are to le paid over to the County Tre.TPurer,onthe first Monday of May, and November; (Laws of 1847, chap. 2?7, §§ S, 9 ; Laws of 1849, chap. 95,)and an account thereof, verified by affidavit, is to be rendered to the board of Supervisors at their annual meeting. FEES OF OFFOERS. 245 For every notice to any party, officer, or person, required to be given by law, twenty-five cents. For services under the non-imprisionment act, the same fees as are allowed by law in proceedings against absconding, concealed, or non- resident debtors. For attendance upon any special matter, where no fee is specially provided for the sei-vice rendered, twenty-five cents. Admitting any person to prosecute as the next friend, or to defend as the guardian, of an infant, nineteen cents. Eveiy necessary order upon any special application, twenty-five cents. For attendance on taking any depositions, upon any inquiry insti- tuted by the Governor, relating to the official misconduct of any offi- cer, two dollars for each day necessarily occupied. Issuing any summons or process of subpoena, to Compel the attend- ance of any witness in any proceeding before such Judge, twenty-five cents. For every attachment, or warrant of commitment, against a wit- ness or any other person, in a ci\il proceeding, twenty-five cents. For warrant of restitution, or to put any party in possession of lands, thirty -seven and a half cents. Taking an acknowledgment of a power of attorney to appear in a Justice's Court, twenty-five cents. For services in criminal cases, not specially provided for, the same fees as are allowed to Justices of the Peace for similar services. I 452. Cmmty Sperintendents of the Poor. Such sum, for their actual attendance and services, as the board of Supervisors of their county shall deem reasonable. § 453. County Treasurer's Fees. Such commission, for receiving and paying out all moneys, as the board of Supervisors may fix, not exceeding one-half of one per cent, for receiving, and the same for paying; but the gross amount shall in no case exceed five hundred dollars per annum. This re- striction does not extend to the counties of New York, Albany and Kino-s. The treasurer of Monroe county receives an annual salary, to be fixed by the board of Supervisors, not exceeding the half of one per cent for receiving, and the half of one per cent for disburs- ing, or eight hundred dollars in the aggregate. For receiving moneys on securities transferred to him by the clerk of the court of appeals, one half of one per cent, and for paying out the same, one half of one per cent For services as administrator, in the cases provided by law, hi* S46 NEW clerk's assistant. reasonable expenses necessarily incurred; and double the comrms- Mons allowed to executors and administrators. For every warrant issued under the act taxing the rents of land- lords, in certain cases, one doUar. § 454. Crier's Fees. For attendance upon the Supreme Court, two dollars for each day, to be certified by the Clerk of the Court. Attendance upon other court, one dollar and fifty cents for each day, to be certified by the Clerk. § 455. Executors' and Administrators' Fees. A reasonable compensation for the services of the appraisers ap- pointed upon their appUcation, to be allowed by the Surrogate. For receiving and paying out all sums of money not exceeding one thousand dollars, five per cent, on every dollar. For receiving and paying out all sums exceeding one thousand, wid not less than five thousand dollars, two and a half per cent. For receiving and paying out all sums exceeding five thousand dollars one per cent.' For every deed prepared and executed by them, on the sale of any real estate made by order of the Surrogate, two dollars; and a compensation not exceeding two doUars a day, for the time necessa- rily occupied in such sale. Such allowance for all actual and necessary expenses as shall be just and reasonable. § 456. Fence Viewer's Fees. For every mile of travel by a Fence Viewer, from his house to the place where the strays are kept, six cents; and twenty-five cents for a certificate of the charges ; to be paid by the owner of the strays, or the person applying for the certificate. Such compensation for all other services required by law, as may be fijced by the town meetings of their respective towns. § 457. Juror's Fees. Foi attending to serve as such, in a Justice's Court, although not sworn, six cents; for attending and trying a cause, twelve and a half cents. 1 If there be more than one Executor or I according to the semces rendered by them administrator, the allowance-^ are to-be ap- respectively. (Laws of 1849, chap. 160.) ;^rtioned amoag them by the Surrogate, [ FEES OF OFFIOEES. 247 To each juror impanneled to try a cause in any Circuit Court County Court, or Mayor's Court, twenty-five cents for each cause, to he paid by the party noticing the cause for trial ; or if noticed by both parties, to be paid by such party as the court shall direct ; ex- cept that in the county of Albany, the fees of the jury are to be paid to the County Clerk. For attending the coui'ts of record in any county, either as a grand or petit juror, such allowance to each juror as the board of Supervi- sors may direct; not exceeding one dollar per day, and three cents per mile for traveling, in coming to and returning from such courts, to be paid by the County Treasurer, on the certificate of the Clerk. To each petit juror in the county of Albany, who shall be sworu and serve as such, for attending any Circuit Court, Court of Oyer and Terminer, County Court, or Court of Sessions, one dollar per day for every day's attendance, and seventy-five cents for every twenty miles travel: grand jurors in the county of Albany are enti- tled to the same compensation as m other counties of the State. To each juror in the city of New York, twelve and a half cents, for every action in which he is sworn as such in any court of record. To each juror sworn before any officer in any special proceeding allowed by law, or before any Sheriff upon any writ of inquiry, or to try any claim to personal property, twelve and a half cents. To each juror sworn in any proceeding authorized by the provis- ions of the statute in relation to absconding, concealed, non-resident> insolvent, or imprisoned debtors, twenty-five cents. To each juror attending and serving on a jury to re-assess dama- ges for laying out, altering, or discontinuing, a highway, if from the same town, fifty cents ; if from an adjoining town, one dollar. To each juror attending, in pursuance of a summons, but not serving on a jury, to re-assess the damages for laying out, altering, or discontinuing a highway, if from the same town, twenty-five cents; if from an adjoining town, fifty cents. § 458. Justices of the Peace. For a summons, nine cents ; but no more than two summons to be included in the costs in a judgment against any defendant. For a warrant in civil actions, twelve and a half cents , an attach- ment or execution, nineteen cents. Every adjournment, except when made by the Justice on his own motion, nine cents. For a subpcBna, six cents ; administering an oath, six cents. For fihng every paper required to be tiled with him, three cents; but not to be allowed for filing any wiitten complaint, pleading, or process, in any cause. 248 NEW cibrk'b assistant. For a venire, nineteen cents ; swearing a jvuy, twelre and a lialf cents. Entering a judgment, twenty-five cents ; for a transcript thereof, twenty-five cents. Taking every bond or other written security in civil actions, if drafted by the Justice, twenty-five cents. For making a return upon an appeal, one dollar. For a warrant in criminal cases, nineteen cents ; to be paid by the complainant, before issuing any warrant for assault and battery, if required by the Justice. For a bond or recog-nizance, twenty-five cents. Commitment for want of bail, nineteen cents. For a venire to summon a jury before a Court of Special Sessions, twenty-five cents; swearing such jury, twenty-five cents; trial fee or attendance, one doDar ; warrant of commitment on conviction, twenty- five cents ; drawing a record of conviction and filing the same, seventy- five cents ; but all such charges shall not exceed five dollars in any one case. Taking security from any person to prosecute a certiorari, upon a conviction made by a Court of Special Sessions, twenty-five cents ; making a return to such certiorari, two dollars, to be paid by the county. For every order for a commission to examine witnesses, attending, settling, and certifying interrogatories, to be annexed to the commis- sion, fifty cents.' Taking the acknowledgment of any written authority to appear by attorney in a Justice's Court, twenty-five cents. For a copy of the process, pleadings and proofs, in any cause wherein judgment was rendered by 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 the transcript, and six cents a folio for the residue thereof. Adnainistering an oath or affirmation, in special cases, and certify- ing the same when required, twelve and a half cents. Taking the acknowledgment of bail in the Supreme Court, and in any County Court, or Mayor's Court, twenty-five cents. Taking the acknowledgment of satisfaction of a decree in Chan- cery, or of a judgment in the Supreme Court, County Court, or Mayor's Court, thirty-seven and a half cents. Taking the proof or acknowledgment of a written instrument to be read in evidence, or of a conveyance or mortgage of real estate, and certifying the same, for one person, twenty-five cents ; and for each additional person, twelve and a half cents. 1 The costs of a commission are to be included in tlie costs of the suit, though the gross •mount exceed five dollars. TESS OF OFFICERS. 249 For swearing each witness on taking suet proof or acknowledgment, six cents. Endorsing a warrant issued from another county, twelve and a half cents. For a summons for any offence relating to the internal police of this State, or in any special proceedings to recover possession of land, or otherwise, twenty-five cents. For a precept to summon a jury in special cases, thirty-seven and a half cents ; swearing such jury, twenty-five cents. Hearing the matter concerning which such jury is summoned, fifty cents ; receiving and entering their verdict, twelve and a half cents. For a view of premises alleged to be deserted, fifty cents. For one day's attendance upon the Board of Excise, one dollar and twenty-five cents. For attendance at town meetings, one dollar and twenty-five cents. For other services performed by Justices of the Peace, not speci- ally provided for by law, such compensation as may be allowed by the board auditing their accounts. For attending the Courts of Oyer and Terminer and Sessions, two dollars each day, and six cents per mile travel fee in going and re- turning. But one allowance of travel is to be made at any one term. § 459. Notary's Fees. For the protest, for non-payment, of any note, or for the non- acceptance or non-payment of any bill of exchange, check or draft, and giving the requisite notices and certificates of such protest, in- cluding the notaiial seal, if affixed thereto, seventy-five cents; and Notaries are required to furnish, under seal, the certificate authorized to be introduced as presumptive evidence in actions at law, free of expense. Drawing and copy of every other protest, seventeen cents for every folio ; and for sealing the same, twenty-five cents. Taking an oath or affirmation, and certifying the same, twelve and a half cents. Drawing any affidavit, or other paper or proceeding, not otherwise provided for, twenty-five cents for each folio ; and twelve and a half cents per folio for a copy thereof § 460. Overseers of the Poor. For every day actually and necessarily devoted to the ser^^ce of the town, one dollar to each Overseer ; and all such necessary expenses as may be incurred in the discharge of their duties, to be allowed by the board auditing their accounts. 250 KEw clerk's assistant. § 461. Overseers of Highways. For any excess of work oyer and above his assesment, performed by an Overseer of Highways, seventy-five cents per day. § 462. Poimdmaster's Fees. For taking into the pound and discharging therefrom, every horse, ass, or mule, and all neat cattle, twelve and a half cents each; for every sheep or lamb, three cents ; and for every hog, six cents. For feeding any beasts distrained doing damage, his reasonable charges, not exceeding six cents for each beast for every twenty-four hours. § 463. Printer's Fees. For publishing notices of any application by an insolvent, under the provisions of the fifth chapter of the second part of the Eevised Statutes, and furnishing the evidence of such publication for six weeks, one dollar and sixty-seven cents ; if published ten weeks, two dollars. Publishing any other notice, or any order, citation, summons, or any other proceeding or advertisement, required by law to be pub- lished in any newspaper, not more than fifty cents per folio for the first insertion, and twenty cents per foho for each subsequent inser- tion after the first. Posting a copy of a notice of mortgage sale on the door of the court house, one doUar. § 464. Referees' Fees. For each day necessarily spent in the business of the reference, three dollars to each, to be paid on making their report, by the pre- vailing party. Parties, however, may agree, in writing, on a difi«- rent compensation. ( Laws of 1849, chap. 438, Part II., Title X., §313.) Referees, to whom any question in regard to the laying out, alter- ing, or discontinuing a highway, is referred, are entitled to two dol- lars per day each ; to be paid by the party appealing, if the decision of the commissioner is sustained, but if reversed, by the county. § 465. Register of Deeds in the Gity of New York. The same fees as are allowed by law to County Clerks, for similar services performed by them. For iiling a chattel mortgage, or a copy thereof, six cents ; for FKBS OF OFFICERS. 251 entering the same, six cents for every party to sucli instrument; searching for each paper, six cents ; and the Hke fees for certified copies of such papers as are allowed to Comity Clerks for copies of records. § 466. School District Collector's Fees. One per cent on all taxes voluntarily paid in, during the first two weeks after receiving a tax hst and warrant ; and five per cent on all sums collected after that time. Where a levy and sale is made, the Collector is entitled to travel- ing fees at the rate of six cents per mile, computing the distance from the school house in the district § 467. Sealers of Weights and Measures. For sealing and marking every beam, twelve and a half cents. Sealing and marking measures of extension, at the rate of twelve and a half cents per yai-d, not to exceed fifty cents for any one mea- sure. Sealing and marking every weight, three cents. Sealing and marking liquid and dry measures, if the same be of the capacity of a gallon, or more, twelve and a half cents; if the same be of less than a gallon, three cents. Reasonable compensation for maMng such weights and measures conform to the standard. § 468. Sheriff's Fees. For serving a vmt, summons, complaint, or demand, by which a suit shall be commenced in a court of law, fifty cents. Traveling in making any such service, six cents per mile, for going only, to be computed in all cases from the court house of the county ; and if there be two or more court liouses, to be computed from that which shall be nearest t» the place where the service shall have been made, except, that in the county of Oneida such travel shall be com- puted from tlie court house in Whitestown. Taking a bond on the arrest of a defendant, or taking liis endorse- ment of appeai-ance, or for taking a bond in any other case, where he is authorized to take the same, for which no fee is otherwise pro- vided, thirty-seven and a half cents ; and for a certified copy of such bond, twenty-five cents. Returning a process, twelve and a half cents. Serving an attachment for the payment of money, or an execution for the collection of money, or a warant for the same purpose, issued 252 NEW CLERK'S ASSISTANT. by the Comptroller, or by any County Treasurer, for coUecfing the sum of two hundred and fifty dollars, or less, two cents and fiye mills per doUar; and for every dollar collected, more than two hundred and fifty dollars, one cent and two and a half mills. Advertising goods or chattels, lands or tenements, for sale, on any execution, two dollars; and if the execution be stayed or settled, after advertising and before sale, one dollar ; and all legal fees paid for publishing an advertisement or postponement of the sale of real estate. For drawing every certificate on the sale of real estate, by virtue of an execution, twenty-five cents per foUo ; for two copies thereof, twelve and a half cente per folio ; and the Clerk's fee for filing one of such certificates. Drawing and executing a deed, pursuant to a sale of real estate, on an execution, one dollar ; to be paid by the grantee in such deed. Serving a writ of possession or restitution, putting any person en- titled into the possession of premises, and removing the tenant, one dollar and twenty -five cents; and the same compensation for travel- ing to serve the same, as is allowed on the service of a summons. Taking a bond for the liberties of the jail, thirty-seven and a half cents. Summoning the jury to attend any court, fifty dents in each cause noticed for trial at such court, or placed on the calendar thereof for trial. Summoning a jury in any case where it shall become necessary to try the title to any personal property, attending such jury, and making and returning the inquisition, one dollar and fifty cents. Summoning a foreign or special jury, pursuant to a venire for that purpose, and returning the panel, one dollar and twelve and a half cents. Summoning a jury, pursuant to any precept or summons of any officer in any special proceeding, one dollar ; and for attending such jury, when required, fifty cents. Bringing up a prisoner upon a habeas corpus, to testify or answer in any court, one dollar and fifty cents; and for traveling, twelve and a half cents for each mile from the jail. Attending before any officer with the prisoner, for the purpose of having him surrendered in exoneration of his bail; or attending to receive a prisoner so surrendered, who was not committed at the time ; and receiving any such prisoner into his custody, in either case, one dollar. Attending a view, one dollar eighty-seven and a half cents per day ; going and returning, one dollar and twenty-five cents per day. Serving an attachment against the property of a debtor, under the prorisions of the statute concerning absconding, concealed, non-resi- dent, and fraudulent debtors, or against a ship or vessel, fifty cents, FEES OF OFFICERS. 258 ■witli such additional compensation for his trouble, and expenses in taking possession of and preserving the property attached, as the offi- cer issuing the process shall certify to be reasonable ; and where the property attached shall aftei-wards be sold by the Sheriff, he shall be entitled to the same poundage on the sum collected, as if the sale had been made under an execution. Making and returning an inventory and appraisal, such sum for the appraisers as the officer issuing the attachment shall certify to be reasonable, not exceeding one dollar per day to each appraiser. Drawing such inventory, twenty -five cents per folio ; and twelve and a half cents per folio for the copy thereof. Selling any property so attached, and advertising such sale, the same allowance as for sales on executions. Executing any warrant to remove any person from lands belong- ing to the people of this State, or to Indians, such sum as the Comp- troller shall audit and certify to be a reasonable compensation. Giving notice of any general or special election, to the Supen'isor, or one of the Assessors, of the different towns and wards of hisi county, one dollar for each town or ward, and the expenses of pub- lishing the notice as required by law, to be paid by the county. For any services which may be rendered by a Constable, the same fees as are allowed to Constables for such services. For any person committed to piison, and every person discharged therefrom, in oivU cases, twenty-five cents for receiving, and twenty- five cents for discharging, to be paid by the plaintiflFin the process. Summoning Constables to attend the Supreme Court, or any other court, fifty cents for each Constable. Attending the Supreme Court, two dollars per day.' For mileage on every execution, six cents per mile for going only, to be computed from the court house. For serving executions issued by the Clerk of the Coimty, upon a judgment rendered by a Justice of the Peace, the same fees as aro allowed to Constables in the like cases. Taking into his possession any wi-ecked property, and selling the same at public auction, his reasonable expenses, to be settled and allowed by the Judge making the order of sale. Summoning a jury in any case, under the provisions of the statute relating to absconding, concealed, non-resident, insolvent, or impri- soned debtors, one dollar and twelve and a half cents, to be paid by the creditors. Making the report required by law, after the adjournment of any Criminal Court of Record in his county, a reasonable compensation, to be allowed by the Board of Supervisors. For every person committed to prison in criminal cases, tliirty-seven 1 A ShuriflT ia not entitled to a per diem ] Court of Sessions, in his own county. (2 Hill, compensation, for attending either the Cir- 411.) euit, Oyer and Terminer, County Court, or ) 254 SEW clerk's assistant. and a half cents ; for eveiy prisoner discharged, thirty-seven and a half cents. Summoning a grand jury for a Court of Oyer and Terminer, or Court of Sessions, ten dollars. For conveying a single convict to the State Prison, or houses of refuge, for each mile from the county prison from which such con- vict shall be conveyed, thirty-five cents. For conveying two convicte for each mile aforesaid, forty-five cents ; three convicts, fifty cents ; four convicts, fifty-five cents ; five convicts, sixty cents; and for all additional convicts, such reasonable allow- ance as the Comptroller may think just; which said allowance, with one dollar per day for the mainteinance of each convict, whilst on the way to the State Prison, but not exceeding one dollar for every thirty miles travel, will be in full of all charges and expenses in the pre- mises. For selling land and executing conveyances, in pursuance of the decree of a Court of Record, the same fees as upon sales by execution ; but such fees are in no case to exceed ten dollars. If the party, in whose favor the decree is made, bids the whole amount of the sale, or any part of it, or if the whole amount, or any part, be credited on the decree, the fees of the Sheriff must be estimated on the surplus, over and above the sum so bid, or credited ; but if the fees in such case would be less than five doUaj-s, and if estimated on the whole amount bid on the sale would have exceeded that sum, the Sheriff will be entitled to five dollars.^ § 469. Supervisor's Fees. For one day's attendance upon the Board of Excise in his town, one dollar and twenty-five cents. When associated with the Town Superintendent in the erection or alteration of a school district, one dollar and twenty-five cent^ per day. Two dollars per day to each Supervisor, for attending the meetings of the board. For all necessary travel in the discharge of his official duties, eight cents per mile. For making a copy of the assessment roll of the town, and making out the tax bill to be delivered to the Collector, three cents each name, for the first one hundred names ; two cents per name for the second hundred names ; and one cent per name for each name over two hundred. But a Supervisor is not entitled to the per diem allowance, wliile employed in copying the assessment roll, and making out the tax bUl. ' See Laws oflftl?, chip. 280, 5 77. PEES OF OFFICERS. 255 § 4V0. Surrogate's Fees} Drawing proof of a ■^sdll when contested, or any other proceeding before him, for which no specific compensation is provided, fifteen cents for every folio. Drawing every petition in any proceeding before him, not other- wise provided for, including the affidavit of verification, fifty cents. Every certificate of the proof of a will, when contested, endorsed thereon, including the seal, fifty cents ; and for any certificate upon exemplifications of records or papers filed in his office, or upon the papers transmitted upon appeal, including the seal, fifty cente. Drawing, copying, and approving of every bond required by law, fifty cents. Drawing, copying, and recording, every necessary paper, and drawing and entering every necessary order, and for rendering every other service necessary to complete proceedings on the appointment of a general guardian for a minor, three dollars ; and for Uke services in appointing the same person guardian for any other minor of the same family, at the same time, one dollar and fifty cents. Drawing, entering, and filing a renunciation, in cases where the same may be made by law, twenty-five cents. A citation or summons, in cases not otherwise provided for, to all parties in the same proceeding, residing in any one county, including the seal, fifty cents ; and for a citation to all parties in any other county, twenty-five cents. A subpoena for all vritnesses in the same proceeding, residing in one county, including the seal, twenty-five cents. For every copy of a citation and subpoena furnished by a Surrogate, twelve and a half cents ; and every such copy of citation shall be signed by the Surrogate. A warrant of commitment or attachment, including the seal, fifty cents. A discharge of any person committed, including the seal, fifty cents. For drawing and taking every necessary affidavit, upon the return of an inventory, fifty cents. For serving notice of any revocation, or other order or proceeding required by law to be served, twenty-five cents. For swearing each witness, in cases where a gross sum is not al- lowed, twelve and a half cents. For searching the records of his office for any one year, twelve and a half cents; and for every additional year, six cents; but no 1 The fees received by the Surrogate, after | 277; 558, 9; Laws of I**)"), chap. 95,) and deiluciing his salary, are to be paid over to | an account thereof, vcrifieil by ainJavu, is to the County Treasurer, on the first Monday of I be rendered to the Board of Suptrvisors, at Maj and November, (Laws of 1847, chap. | their annual meeting. 25S HEW clerk's assistant. more tlian twenty -five cents stall be charged or receiYcd for any one search. Kecording every will, with the proof thereof letters testamentary, letters of administration, report of commissioners for admeasurement of dower, and every other proceeding required by law to be recorded, including the certificate, if any, when the recording is not specially provided for by this act, ten cents for every folio. For the translation of any will from any other than the English language, ten cents for every folio. Copies and exemplifications of any record, proceeding, or order, had ar made before him, or of any papers filed in his oflice, transmitted on an appeal, or furnished to any party on his request, six cents for every folio, to be paid by the person requesting them. For making, drawing entering, and recording, every order for the sale of real estate, and every final order or decree on the final settle- ment of accounts, one dollar and fifty cents ; and for the confirmation of the sale of real estate, seventy-five cents ; and for making, draw- ing, entering, and recording, any other order or decree, when the same is not otherwise provided for, twenty-five cents. Hearing and determining, when the proof of a will, or the right to administration, or apppointing a guardian, is contested, two dollars. Taking, stating and determining, upon an account rendered upon a final settlement, or determining and deciding the distribution of personal estate, if contested, two dollars for each day necessarily spent therein, not exceeding three days. For hearing and determining any objections to the appointment of an executor or administrator, or any application for his removal, or for the removal of any guardian, or any application to annul the pro- bate of a win, two dollars. For hearing and deterinining upon an application to lease, mort- gage, or sell, real estate, two dollars. For drawing and recording all necessary papers, and drawing and entering all necessary orders on apphcations for letters of administra- tion, when not contested, and for all services necessary to complete the appointment of administrators, and for the appointment of ap- praisers, five doUars: but in cases where a citation is necessary, seventy-five cents in addition. For investing for the benefit of any minor, any legacies, or the dis- tributive shares of the estate of any deceased person, in the Stocks of this State, or of the United States, one per cent, for a sum not ex- ceeding two hundred doUars, and for any excess, one-quarter of one per cent ; for investing the same on bond and mortgage of real estate, one-half of one per cent, for a sum not exceeding two hun- dred dollars, and one-quarter of one per cent for any excess. For receiving the interest on such investments, and paying over FEES OF 0FFCER8. 25^ the same for the support and education of such nMior, one-half of one per cent Appointing a guardian to defend any infant who shall be a party to any proceeihng, fifty cents; but where there is more than one minor of the same family, and the same guardian is appointed for all, twenty-five cents for each additional minor ; and no greater or other fee shall be charged for any service in relation to such appointment Hearing and determining upon the report of Commissioners for the admeasurement of dower, one dollar. For distributing any monies brought into his office on the sale of real estate, two per cent ; but such commission shall not in any case exceed twenty dollars for distributing the whole money raised by such sale. But no fee shall be taken by any Surrogate in any case where it shall appear to him, by the oath of the party applpng for letters tes- tamentary or of administration, that the goods, chattels, and credits, do not exceed fifty dollars, nor shall he take any fee for copying any paper drawn by him, or filed in his oSice, except as above provided. For drawing and recording all necessary petitions, deposition^ affidavits, citations and other papers, and for drawing and entering all necessary orders and decrees, administering oaths, appointing guardians ad litem, and apointing appraisers, and for rendering eveiy other necessary service in cases of proof of wUl, and issuing letters testamentary, when not contested, and the will does not exceed fifteen folios, Surrogates shall receive twelve dollars; and where the wiU exceeds fifteen folios, ten cents per folio for recording such excess, and six cents per folio for the copy of such excess, to be annexed to the let- ters testamentary. For aU fees on filing the .annual account of any guardian, wliere the Surrogate shall draw and take the affidavit of the guardian^ and for examining such accounts, fifty cents ; but where the same shall not be drawn nor taken by him, he shall charge no fees. For any necessaiy travel required under the law of 1837, con- ceming"the proof of wills, &c., (Laws of 1840, chap. 460, § 69,). Surrogates are entitled to ten cents per mUe, going and returning. No fees for filing any paper in the Surrogate's office can be re- quired; neither can any charge be made for drawing, copying, or recording his bill of fees, in any case. § 471. Swveyor's Fees. For actual service in surveying, laying out, marking and mapping any real estate, of which partition shall be made pursuant to law, or of which dower shall be admeasured, two dollars and fifty cents 'pei day. ' 17 *68 iTB-w clerk's assistant. For each of his necessary chain and flag bearers, and other neces- aaiy assistants, one dollar per day. § 472. Town Clerk's Fees. For filing every chattel mortgage, or copy thereof, six cents ; for entering the names and numbering, six cents ; searching for such papers, six cents each ; and the same fees for certified copies thereof as are allowed to Clerks of counties for copies of records. Filing and entering a certificate of marriage, twenty-five cents ; and ten cents for a copy of the certificate, or of the entry. Entering a note of strays, six cents each for all neat cattle and horses, and three cents for each sheep ; to be paid by the person de- livering the note. For services as Clerk of the town meeting, one dollar and twenty- five cents per day. When associated with the Supervisor and Town Superintendent, in the erection or alteration of a school district, one dollar and twenty- five cents per day. Such compensation for his services in behalf of the town, includ- ing those performed as Clerk of the Town Superintendent, as the board auditing his account shall allow. For drawing a jury to re-assess damages for laying out, altering, or discontinuing a highway, fifty cents. The same fees for advei-tising and selling drifted lumber unclaimed, as are allowed to Constables making sales on executions issued out of Justices' Courts. To the Clerk of the town of Queensbury, for entering every mark of lumber, twenty-five cents. § 473. Town Collector's Fees. For collecting and receiving taxes, one per cent on every dollar, and one cent on every amount of tax under one dollar, if paid within thirty days from the first posting of the notice required by law ; where the aggregate amount to be collected does not Acceed two thousand dollars, the collector is entitled to two per cent as his fees, on all voluntary payments made within thirty days.. On all taxes remaining unpaid after the expiration of the said thirty days, such compensation as may be voted by the electors at town meeting, not exceeding five, nor less than three per cent For collecting all unpaid taxes, five per cent, and for returning unpaid taxes, two per cent, to be allowed by the County Treasurer. FEES OF OFrlCERS. 259 To the Collector of the town of Minerva, in the county of Essex, for travel fees from his place of residence to the ofiSce of the County Treasurer, thirty-seven and a half cents per mile ; to the Collectors of the towns of Keene and Schroon, in said county, for the same^ twenty-five cents per mUe ; but the sum to be paid to either of said Collectors, shall in no case exeeed the sum of four per cent upon the amount of the tax on the lands of non-residents, returned by such Collector. § 474. Trustees of Absconding, Concealed, Jfon-Hesident, or Insolvent Debtors. A commission of five per cent on the whole sum which shall have come into their hands, and all the necessary disbursments made by them in the dischage of their duty. § 475. Witnesses^ Fees. To each witness in a Justice's Court, from the same cotmty, sub- poenaed and attending before a Justice, or before Commissioners ap- pointed by him, twelve and a half cents ; from any other place than the same county, twenty-five cents for everj' day's actual attendance. For each witness, fifty cents for each day while attending any court or officer, (including Canal Appraisers,) except as otherwise provided; and if the witness resides more than three miles from the place of attendance, traveling fees, at the rate of four cents per mile, going and returning. For every witness who shall appear and testify before any Justice af the Peace taking depositions to be used in courts in other States^ fifty cents. To any person attending a Court of Oyer and Terminer, or a court of Sessions, as a witness in behalf of the people, upon the request of the public prosecutor, or upon a subpoena, or by virtue of a re- cognizance, who is poor, or has come from any other State or Terrf- tory of the United States, or from any Foreign country, such reason- able sum for his expenses as the court may direct CHAPTER XIX. FENCE YIEWEES. PRACTICAL REMARKS. 1. The Assessors and Commissioners of Highways elected in any town, are, by virtue of their offices, Fence Viewers of such town.' 2. Whenever any stray has not been claimed and redeemed, within the time prescribed by law, it is the duty of one of the Fence View- ers, on receiving notice, to ascertain, according to the best of his knowledge and judgment, the reasonable charges of keeping such stray; a certificate whereof is to be given to the person applying for the same.' 3. In case the person detaining a stray, and the owner thereof, caainot agree as to the charges to he paid, at the time of redeeming such stray, the same may be ascertained and certified by two of the Fence Viewers of the town, to be selected by the former.' 4. When two or more persons have lands adjoining, each of them must make and maintain a just proportion of the division fence be- tween them, except the ovmer or owners of either of the adjoining lands choose to let such land lie open. When a person has chosen to let his land lie open, if he afterwards encloses it, he must refund to the owner of the adjoining land, a just proportion of the value at that time of any division fence that may have been made by such adjoining owner, or build his proportion of such division fence. The value of rsuch fence, and the proportion thereof to be paid by such person, and the proportion of the division fence to be buMt by hina, in case of his enclosing his land, are to be determkied by any two of the Fence Viewers of the town. If disputes arise between the owners of adjoining lands, concerning the proportion of fence to be maintained, or made, by either of them, such disputes may be set- tled by any two of the Fence Viewers of the town. When any of 1 1 R. S. (3d ed.) 388, 5 8. I » 1 R. S. (3d. ed.) 401,5 21. " IB. S.(3d. ed.)40l, 523. | FKWOK VIEWERS. 291 the above meiitioned matters are submitted to Fence "Vle-wers; eacl. party may choose one ; and if either neglect, after eight day's notice, to make such choice, the other party may select both. The Fence Viewers must examine the premises, and hear the allegations of the parties. In case of their disagreement, they may select another Fence Viewer to act with them, and the decision of any two will be final upon the parties to such dispute, and upon all parties holding under them. The decision of the Fence Viewers must be reduced to writing, and contain a description of the fence, and of the propor- tion to be miiintained by each, and forthwith filed in the office of the Town Clerk.' 5. If any person liable to contribute to the erection or reparation of a division fence, neglects, or refuses, to make and maintain his proportion of such fence, or permits the same to be out of repair, he cannot maintain any action for damages incurred, but will be liable to pay to the party injured all such damages as may accrue to his lands, and to the crops, fruit trees, and shrubbery thereon, and fix- tures connected with the said land, to be ascertained and appraised by any two Fence Viewers of the town, and to be recovered with costs of suit ; which appraisement must be reduced to writing, and signed by the Fence Viewers making the same, but will be only pri- ma facie evidence of the amount of the damages. If such neglect or refusal be continued for the period of one month, after request in writing to make or repair such fence, the party injured may make or repair the same, at the expense of the party soneglecting or refus- ing, to be recovered from him, with costs of suit" 6. If any person who has made his proportion of a division fence, be disposed to move his fence, and suffer his lands to He open, he may, at any time between the first day of November in any year, and the first day of April following, but at no other time, g^ve ten days' notice to the occupant of the adjoining land, of his intention to apply to the Fence Viewers of the town for permission to remove his fence; and if, at the time specified in such notice, any two of such Fence Viewers, to be selected as aforesaid, determine that such fence may with propriety be removed, he may then remove the same. If any such fence be removed without such notice and permission, the party removing the same will be liable to pay to the party injured, all such damages as he may sustain thereby, to be recovered with costs of suit Whenever a division fence is injured or destroyed, by floods or other casualty, the person bound to make and repair such fence, or any part thereof, must make or repair the same, or his just pro- 1 1 R.S. (3decl.)402, 403,M30-36;4John- 1 a 1 R. S. (3d cd.)403, 55 37-39; Lawa of «on, 414: 9 Id., 130; 17 Wendell, 330. IfBS, chap. 261; U Wendell, 46: 18 Id., 213; ' 3 Hill, 38. 162 Niiw cleke's assistant. portion thereof, within ten da.js after he shall be thereunto required by any person interested therein ; such requisition shall be in writing, and signed by the party making it If such person refuse or neglect to make or repair his proportion of such fence, for the space of ten days after such request, the party injured may make or repau- the same, at the expense of the pai-ty so refusing or neglecting, to be re- covered from hun, with costs of suit' 7. Witnesses may be examined by the Fence Viewers, on aU ques- tions submitted to them, and they have power to issue subpoenas for, and to -administer oaths to witnesses." 8. When any distress is made of any beasts doing damage, the person distraining, within twenty-four hours after such distress, unless the same was made on a Saturday, in which case, before the Tues- day morning thereafter, must apply to two Fence Viewers of the town, to appraise the damage, who are required immediately to re- pair to the place and view the damage done ; and they may adminis- ter oaths and take the testimony of competent witnesses, in order to enable them to ascertain the extent of such damage. The Fence Viewers then certify under their hands the amount of the damage, with their fees ; and if any dispute arise, touching tlie sufiBciency of any fence around the premises where the damage was done, they may in like manner inquire into the same, and determine such dis- pute ; which decision will be conclusive.' 9. The owner of any sheep or lambs that may be MUed or injured by any dog, may apply to any two Fence Viewers of the town, who shall inquire into the matter, and view the sheep injured or killed, and may administer oaths and take testimony on such inquiry. If they are satisfied that the sheep or lambs were killed or hurt by dogs, and in no other way, they must certify such fact, the number of sheep killed or hurt, and the amount of the damage sustained by the owner, together with the value of the sheep killed or hurt* 10. If the parties cannot agree as to the amount of the damage sustained by the owner, or possessor, of land on which floating tim- ber or lumber has drifted, either of them may apply to any two Fence Viewers of the town in which such timber or lumber may be found, whose duty it will be, after hearing the proofs and allegations of the parties, to determine the amount of such damage, at tiie ex- pense of the owner of the timber or lumber; and their decision will be conclusive. The Fence Viewers may, in such cases, issue process for witnesses on behalf of either party, and administer oatlis on taking their testimony.* > 1 R. S. (3d ed.) 403, 404, 55 40^3; 3 Wen- lell, 142. > 1 R. S. (3d ed.) 4M, 5 44. » 2 R. S. (3d ed.) 607, 608, S5 1-3; 10 John son 2B3, 369: 15 M., 220: 19 Itf., 498 < 1 R. S. (3d ed.) 885, i 10. » 1 R. S. (3d. ed.) 877, {§ 2, 3. FENCE VIEWERS. SQg FORMS. § 476. Fence Viewer's Certificate, where Stray has not been Claimed or Redeemed. County,) Town of ,j • I, the undersigned, one of the fence viewers of said town, do hereby certify, that upon the application of A. B., of said town, upon whose enclosed lands the following stray animals,- to wit: \nanie themi\ came, on or about the day of , 18 , and which strays have since that time been kept by the said A. B., and now remain unclaimed and unredeemed, I have ascertained, ac- cording to the best of my knowledge and judgment, and upon due inquiry and examination, the reasonable charges of keeping such strays, and that the liame amount to the sum of dollars and cents : and that the fees for laj service amount to dollars. Given under my hand, this day of , 18 . E. F., Fence Viewer. § 477. Certificate where Parties cannot Agree upon the Charges for Keeping Strays. County,) Town of , j Whereasj a dispute has arisen between A. B. and C. D., of said town, concerning the reasonable charges of keeping the following strays, to wit: \riame them,J which came upon the enclosed lands of the said A. B., on or about the day of , 18 , and have been kept by him since that tune until the date hereof, and which are now claimed by the said C. D. : Now, therefore, we, the undersigned, two of the Fence Viewers of said town of , do hereby certify, that we have ascertained the reasonable charges of keeping said strays, after due inquiry and examination, and that the same amount to dollars and cents ; and that the tees for our service amount to dollars. Given under our hands, this day of ,18 p' tt' [■ Fence Viewers. § 478. Certificate of Value of Fence Built by an Adjoining Owner. County,) Town of ,p*- Whereas, A. B. and C. D. were, and are, the owners of certain lands adjoining, in said town of , and on the day ot tM NEW OLERit'S ASSISTANT. ,18 , or thereabouts, the said A. B. erected a division fence between the land belonging to him and that of the said C. D., who had chosen to let the same lie open ; and whereas, the said (X D. has, since that time, enclosed the said land belonging to him, and a dispute has arisen between the said parties, concerning the proper proportion of the value of the said division fence, to be paid for by the said C. D. : Now, therefore, we, the undersig-ned, two of the Fence Viewers of said town of , do hereby certify, that we have made due mquiry into the facts,, and examined the premises ; that the following is a correct description of the fence so built by the said A. B., as aforesaid, to wit : [give description;^ that the value thereof, at the time of building the same, was dollars ; and that the proper proportion of said value, to be paid by the said C. D. to the said A. B., is dollars : And we also certify, that the fees for our service amount tO' dollars Given, »,S90. I >1E. S.(3d. ed.)643,r6.. 268 NEW CLERK'S ASSISTANT. river, stream, or lake, any person, or any goods, chattels or effects, for profit or hire, unless authorized in the manner above provided, such person will be considered guilty of a misdemeanor ; and, on conviction, be subject to such fine, for the use of the county, as the Court may adjudge; not exceeding twenty-five dollars for each of- fence. Where any offence is committed on waters dividing two counties, the person so offending may be proceeded against in each of said counties ; but the fine imposed cannot exceed twelve dollars and fifty cents in each case.' ' 5. The foregoing provisions of tihe statute do not affect or alter the ferries granted by charter to the corporations of Albany and Hudson, or alter or impair any grants made by this State, or any legal right or privilege whatever, belonging to any individual or cor- poration, by virtue of any laws of this State, or otherwise." 6. The owner of a ferry cannot use the land on the other side of the stream, unless he is himself the owner thereof, for the purpose of embarking and disembarking passengers." 7. The public have an interest in a ferry; and the owners thereof are liable to answer in damages, if they should refuse to transport an individual without reasonable excuse, upon being paid or tendered the usual rate of fare.' 8. A County Court has power to grant a license to keep a ferry on a river, although the jurisdiction of the State extends oiuy to th« oentre of the river.' FORMS. § 484. Application for a Ferry. To the Hon., the County Court of County : The application of A. B., of the town of , in said county of , respectfully showeth : That he is [or, that C. D. is] the owner of the lands in said town through which the public highway runs, leading from to , over and across the lake, [or, river ;] and that a ferry ought to be established, for th« convenience and acconmiodation of the pubHc, upon the said lake, 1 1 R. S. (3d. ed.) 643, §§ 8, 9 j S Johnson, I > 3 Kent's Commentariea (2d ed.) 431 175; 11 Wendell, B90. * 3 Paige, 45. 3 1 R. S. (3d ed.) 643, § 10. ' 11 Vfrendell, 690 FERRIBS. 269 [or, river:] Wherefore, the undersigned A. B„ hereby makes appli- cation to the said court to grant him a license to establish such ferry, on his compliance with the provisions of the statute in such case made and provided; [If the application be made by some person other than the owner of the land, insert here: the said C. D., the owner of the land tlu'ough which the highway runs, as aforesaid, having neglected to apply for such license, after due service of the notice required by law, as appears by a copy of said notice and the affidavit of service, which are hereunto annexed.] Dated the day of , 18 . A. B. § 485. Notice to the Owner, and Affidavit of Service, ToMr. C. D.: 8u- : You wiU take notice that I shall apply to the County Court of County, at the next term of said court, to be held at the court house in said county, on the day of next, for a license to be granted to me to keep a ferry upon the lake, \or, river,] from the termination of the highway running through your land, &c. : [give a partieidar description of the site of the ferry.'] Dated, &c. Yours, &c., A B. County, ss: A R, of said county, being duly sworn, says, that on the day of _ instant, [or, last past,] he personally served C. D. with a notice, of which the above is a copy, by delivering the same to him. Sworn to before me, this ) A B. day of , 18 . ) G. H., Justice of the Peace. § 486. Recognizance. State of New York, ) County, j ■ Be it remembered, that I, A. B., of the town of , in said county, do hereby acknowledge myself to be indebted to the people of the State of New York, m the sum of one hundred dollars! to be veil and truly paid, if default shall be made in the condition foUow- Mg: Where^, the said A B. has this day applied to the County Court of the said county of , for a hcense to keep a ferry upon the lake [or, river,]in the town of , i„ said couirty: Now, aierefore, the condition of this recognizance is such, that if the said A. B. shall faithfully keep and attend the said feny, provided a hcense shall be granted for that purpose, as aforesaid, with such .and S'^O NEW clerk's assistant. so many sufficient and safe boats, and so many men to work the same, as shall be deemed necessary, together with sufficient imple- ments for said ferry, during the several hours in each day, and at such several rates, as the court granting said license shall from time to time order and direct, then this recognizance shall be void; else to remain of force. Subscribed and acknowledged in 1 A. B. [l. s.] open court, this day of , >• 18 , before me. ) P. v., Clerk of County Court § 487. lAeense. At a County Court held in and for the county of , at the court house in said county, on the day of , A. D. 18 : Present, J. P. PL, OOunty Judge : It is hereby ordered and determined, upon the application of A. B., for that purpose made to this court, that this license be granted to the said A. B., to keep a ferry upon the lake, \or, river,] in the town of , in said county of , at or near the south- west corner of lot number , in said town, [or, as the case may he, describing the place where it is proposed to have the ferry, ^ for the term of years from the day of instant. [If necessary add: And it is further ordered, that the said A B. be allowed to collect and receive ferriage for the transportation of tra- vellers, property and effects, over and across the said ferry, at and after the following rates, viz. : [give the prescribed rates f] and that he shall not take, or reqmre, any greater sum for such transporta- tion.] , P. v., Clert § 488. Certificate of Clerk to Annex to the Copy. State of New York, ) County, I I, P. v.. Clerk of County Court, do hereby certify, that I have compared the foregoing [or, annexed] copy of a license with the original, this day entered upon the records of the said court; and that the sanie is a correct transcript therefrom, and of the whole of such ori^naL In testimony whereof, I have hereunto affixed my name, and the seal of the said court, this day of , A. D. 18 . [i. s.] P. v., Clerk. CHAPTER XXI. GIFTS. PRACTICAL REMARKS. 1. Free gifts, or voluntary conveyances, made understandingly, and without fraud, ■will be upheld. 2. There are two Mnds of gifts known in law, viz : gifts inter vi- vos, or those made between living persons ; and gifts causa mortis, or those made in contemplation of death.' 3. Delivery is essential, both at law and in equity, to the validity of every gift If the thing given be not capable of delivery, the title must be passed by some act equivalent to it, as by assignment^ or other mstrument in writing.^ 4. Gifts of goods and chattels, as well as of lands, made with in- tent to delay, hinder, or defraud, creditors, are void as against any person who may be prejudiced thereby. Voluntary settlements of property, upon the wife or children of the party making the same, are also void as to existing creditors.' 6. Gifts made in expectation of death, will not be allowed to de- feat the just claims of creditors, and are void as against such credit- ors, even though there be no fraudulent intent' 6. A gift of personal property may be made by parol ; it is a safer course, however, to have it done by a written instrument' 12 Kent's CommentarieB, (2d ed.)438. | 5 Oowen, 87; 8 Id., 406; 4 Wendell, 300; ( • 2 Jolinson, 52. Hill, 438. • 2 R. S. (3d ed.) 195, 5 1; Id., 197, %% 1-3; | « 2 Kent's Commentaries, (2d ed ) 448. 972 NEW clerk's assistant. FORMS. § 489. Gift of Personal Estate, by Deed. Know all men by these presents : That I, A. B., of, &c., in consid- eration of the natural love and affection which I have and bear for my sister, C. B., and also for divers other good causes and considera- tions, me, the said A. B., hereunto moving, have given, granted and eonfirmed, and by these presents do give, grant and confirm, imto the said C. B., all and sing-ular my goods, chattels and personal es- tate, of every name and nature, in whose hands, custody, or posses- sion, soever, they be : [or, the following goods and chattels, viz, &c. ; describing themf\ To have and to hold all and singular the said goods, chattels, and personaLestate aforesaid, \or, goods and chattels,] unto the said C. B., her executors, administrators and assigns, to the only proper use and behoof of the said C. B., her executors, admin- istrators and assigns, forever. And I, the said A. B., all and singu- lar the said goods, chattels, and personal estate aforesaid, \or, goods and chattels,] to the said C. B., her executors, administrators and assigns, against me, the said A. B., my executors, and administrators, and all and every other person or persons whatsoever, shall and wiU warrant, and forever defend. In witness whereof, I have hereimto set my hand and seal, this day of , A. D. 18 . Sealed, signed anddeUvered, ) A. B. [l. s.] in presence of j G.H. § 490. The Same, of Beal EsiaU. This indenture, made, &c., between A. B., of, &c., of the one part, and R. B., son of the said A. B., of the other part, witnesseth : That the said A. B., as well for and in consideration of the natural love and affection which he, the said A. B., hath and beareth unto the said R. B., as also for the better maintenance, support and liveli- hood of him, the said R. B., hath given, granted and confirmed, and by these presents doth give, grant and confirm, unto the said R. B., his heirs and assigns, all, The electors of each town in this State have the power, at their isnpual town meeting, to determine, by resolution, whether there shall be chosen one, or three. Highway Commissioners: if only one be chosen, he possesses all the powers, and discharges all the duties, of Commissioners, as provided by law. Whenever three Commissioners are chosen, they are to be di\'ided by lot, by the canvassers, into three classes, to be numbered one, two, and three, who hold their offices, respeotivelly, for one, two, and three years ; and one Com- missioner only will thereafter be annually elected, who will hold his office for three years, and until a successor be duly elected, or chosen. But in case any Commissioner be elected to fill a vacancy, he wiU hold the office, only for the unexpired term ; or, if appointed, only until the ensuing town meeting. Vacancies in the office of Com- missioners are to be supplied until the next succeeding annual town meeting, by an appointment in writing, under the hands of any three Justices of the Peace, or two Justices and the Supervisor of the town. Where there are two vacancies to be filled at any town meet- ing, the canvassers must determine by lot, after the canvass, the terms for which they shall respectively hold.' 2. Whenever any town has determined on having three Commis- sioners, but desires to return twd, or have but one, it has the power to do so, by a resolution adopted at an annual town meeting; and when such resolution has been adopted, no other Commissioner can be elected or appointed, until the terms of those in office at the time of adopting the resolution, expire or become vacant. Such Com- missioners will be authorized to act until their respective tei-ms be- come vacant or expire, as fully as if the three Commissioners cou- tiimed in office." 1 Laws of L845, chap. 180, 5 2 ; Laws of I = Laws of 1S17, chap. 455. 1M7, chap. 455. | HIGHWAYS. 275 3. Every Commissioner of Highways hereafter to be elected, or appointed, before entering upon his duties, and within ten days after notice of his election or appointment, must execute to the Supervisor of his town, a bond, with two sureties, to be approved by the Super- visor, by an endorsement thereupon, and filed with him, in the penal sum of one thousand dollars.' 4. The general powers and duties of Commissioners of Highways are as follows, viz : 1 . To give directions for the repairing of the roads and bridges, within their respective towns.^ 2. To regulate the roads already laid out, and to alter such of them as they, or a majority of them, deem inoonvenient: 3. To cause such of the roads used as highways, as shall have been laid out, but not sufficiently described, and such as shall have been used for twenty years, but not recorded, to be ascertained, described, and en- tered of record, in the Town Clerk's office:' 4. To cause the highways, and the bridges which are or may be erected over streams intersecting highways, to be liept in repair:* 5. To divide their respective towns into so many road districts as they may judge convenient, by writing, under their liands, to be lodged with the Town Clerk, and by him to be entered in the town book; such divi- sion to be made annually, if they think it necessary, and in all cases to be made at least ten days before the annual town meeting: 6. To assign to each of the said road districts such of the inhabitants liable to work on highways as they think proper, having regard to prox- imity of residence as much as may be:' 7. To require the Overseers of Highways, from time to time, and as often E^s they deem necessary, to warn all persons assessed to work on highways, tp come and work thereon, with such implements, carriages, cattle, or sleds, as the said Commissioners, or any one of them, may direct: 8. To lay out, on actual survey, such new roads in their respective towns as they may deem necessary and proper; and to discontinue such old roads and highways, as shall appear to them, on the oaths of twelve freeholders, of the same town, to have become unnecessary. (They cannot, however, lay out a road, without the consent of the owner,through any orchard of the growth of four years, or more; nor over a garden cultivated four years; nor through any buildings, or any fixtures or erections for the purpose of trade or manafactures, or any yards or en- closures necessary for their use; nor through any enclosed, improved, or cultivated lands, without the consent of the owner, or on the oath of twelve freeholders:)* 9. To render to the board of town auditors, at their annual meeting, an account in writing, stating the labor assessed and performed in their 1 Laws of 1845, chap. ISO, 5 3. a 1 R. S. (3d. eci.) 616, 5 1 ; 9 .Tfiliiisoii, 349; ir IJ., 4.7.i ; 2 Hill, 467 ; 6 IJ., 463. s a .lohnson, 424 ; 24 Wcn.loM,491. * 17 Johnson, 461 j 7 Wendell, 474 ; 2 Hill, 619. s 4 Hill, 593. « 1 R. S. (3d. ed.) 628, § 69, et seq.; 4 Paige, 523 ; 6 Id., 83 ; 4 Ciiwen, 190 ; 5 Wendell, 380; 6 Id., 461: 7 Id., 264; 13 Id., 310: M Id., 324, 360 J 2 Hill, 443 ; 3 Id., 458. 276 KEw clerk's assistant. respective towns; the sums received by tliein for fines and commutations, and all other monies received under Title 1 of Chapter 16 of Part I. oi the Revised Statutes; the improvements which have been made on the roads and bridges, and an account of the state thereof; and a statement of the improvements necessary to be made :' 10. To deliver to the Supervisor of their respective towns a statement of the improvements necessary to be made on the roads and bridges, together with the probable expense thereof, which is to be laid by him before the board, at their next meeting:'^ 11. To administer oaths to witnesses or jurors, in proceedings had by or before them.' 12. To cause mile boards, or stones, to be erected, where not already erected, on the post roads, and on such other public roads as they may tliink proper, at the distance of one mile from each other, and with such fair and legible inscriptions as they may direct:" 13. To cause guide posts, with proper inscriptions and devices, to be erected at the entersections of all the post roads in their town, and at the intersections of such other roads therein as they may deem neces- sary.' 5. The Overseers of Highways are required to repair, and keep in order, the highways within their respective districts ; to warn all per- sons assessed to work thereon ; to cause the noxious weeds on each side of the highway to bq cut down or destroyed, out of the high- way work, twice in each year — once before the first day of July, and again before the first day of September; and to collect aO fines and commutation money, and to execvite all lawful orders of the Commissioners. It is also the duty of Overseers to make another assessment, in addition to that made by the Commissioners, on the actual residents in their respective districts, whenever they may deem the same necessary, in order to keep the roads in repair; such assessment must be in the same proportion, as near as may be, and not exceeding one-third of the number of days assessed by the Com- missioners. It is the further duty of every Overseer, once in each month, from the first day of April until the first day of December, to cause all the loose stones lying on the beaten track of every road with- in his district, to be removed ; to keep up and renew the monuments erected as the boundaries of highways ; to m.«ntain and keep in re- pair, at the expense of the town, such guide posts as may have b^n erected by the Commissioners; and whenever the moneys received from commutations and fines are not suflBcient to defray the expense of procuring scrapers and plows, or either of them, -when directed by the Commissioners, to assess the deficiency upon the inhabitants of the district, according to the last assessment roU of the town. Vacancies in the office of Overseer are to be filled by the Commis- I 1 R. S. {3d ed.) 6)7, 5 3. I * 1 R. S. (3d ed.) 617, 5 5. > 1 R. S. (3d ed.) 617, 5 i : 1 HiU, 50. > 1 R. S. (3d ed.) 618, 5 10. * Laws of 1846, chap. 180, S 2. | HIGHWAYS. 277 aonei-s, under a warrant to be filed in the office of the Town Clerk, who is required to give notice to the person appointed. If an Over- seer neglects or refuses to perform his duty, tlie Commissioners are required to prosecute him for tlic same : if a complaint be made by a person resident in the town, such person must give, or ofier, suffi- cient security to indemnify the Commissioners against costs, who are thereupon forthwilh to prosecute the Overseer for the offence com- plained of 6. Every person owning, or occupying land, in tjie town in which he or she resides ; every male inhabitant above the age of twenty-one years, residing in the town where an assessment is made ; and all moneyed or stock corporations which appear on the last assessment roll of their town to have been assessed therein; are to be assessed to work on pubUc highways in such town : the lands of non-residents are also to be assessed for highway labor.^ 1. Each Overseer of Highways is required to deliver to the Clerk of the town, within sixteen days after his election or appointment, a list, subscribed by him, of the names of all inhabitants in his road district, liable to work on highways." 8. The Commissioners of Highways are to meet witliin eighteen days after their election, at the place of holding the town meeting, on such day as they may agree on, and afterwards, at such other times and places as they may think proper. The lists of the Overseers are to be delivered to them by the Town Clerk ; and at their next, or some subsequent meeting, they are to ascertain, estimate and assess, the highway labor to be performed in their town the then ensuing yeai", as follows : The whole number of days' work to be assessed in each year must be at least three times the taxable number of inhabitants in the town ; every male inhabitant, being above the age of twenty-one years, (excepting ministers of the ^'^spel and priests of every denomi- nation, paupers, idiots and lunatics,^ must be assessed at least one day ; the residue of the work is to be apportioned upon the real and personal estate of every inhabitant, as the same may appear in the last assess- ment roll of the town; and upon each tract, or parcel of land, owned by non-residents : all deficiencies in the number of days' work are to be assessed in the same manner. The Commissioners must also affix the number of days' work assessed, to the name of each person mentioned in the lists furnished by the Overseers, and to the description of each tract, or parcel, of non-resident lands ; such lists, when completed, are to be filed with the Town Clerk, who is re- 1 1 R, S. (3il. ed.) 617, 618, 556-8; U., 618, §§ 10-12; Id., 619, § 1?; 10 Johnson, 470; 11 Id., 43i; 17 Id., 439; 18 Id., 407; 1 Coweii, 260; 3 WeEidell, 193; 7 Id., 181; U Id., 667; 19 Id., 50; 5 Hill, 215. a I R. S. C3d. ed.) 620, § 19; Lawn of 1837, chap. 431: 12 Wendell, 390. » 1 R. S. <3d. ed.) 620, i 21. 278 NEW clerk's assistant. qtiired to make copies of each list, to be subsciibed by the Commis- sioners, and delivered to the Overseers.' 9. At the first, or any subsequent meeting, of the Commissioners, they are required to make out a list and statement of all lots, pieces, or parcels of land, owned by non-residents in their several towns ; describing each lot, in the same mannef as is required from Asses- sors; and giving the value affixed to such lot in the last assessment roll of the town, or, if not separately valued in such roll, then the proportionate value thereof. Lands of non-residents occupied and improved by the owner or owners, or his or their servants or agents, are liable to the same assessment for highways as if the owner or owners were residents. Whenevier any non-resident owner conceives iiimself aggrieved by the assessment of the Commissioners of High- ways, an appeal may be made by such owner, or his agent, within thirty days after such assessment, to three Judges of the county in which the land is situated, who are required, within twenty days thereafter, to convene, and decide on such appeal: Notice of the meeting is to be given by the owner, or agent, to the Commissioners, and the decision of the Judges, or of any two of them, wiU be final.'' 10. It is the duty of Commissioners of Highways to credit persons living on private roads, and working the same, so much on their as- sessments as such Commissioners may deem necessary to work such private roads; or to annex the same to some of the highway dis- tricts.' 11. Every person hable to work on highways, except an Overseer, may commute for the whole, or any part of the number of days as- sessed to him, at the rate of sixty-two and a half cents for each day, to be paid within twenty-four hours after being notified to appear and work.* 12. Overseers are required to give twenty-four hours, notice to persons assessed to work on highways. No person, being a resident of a town, can be required to work on any highway, except in the district where he resides, unless, upon his application, the Commis- sioners consent that he may apply his work in some district where he has land. Overseers may require from persons having the same, who are assessed, and have not commuted, a team ; or a cart, wagon, or plow, with a pair of horses, or oxen, and a man to manage them; and the person furnisliing the same will be entitled to a credit of three days, for each day's service therewith."* 13. The fine for a refusal, or neglect, to appear and work when notified by the Overseer, is one dollar for each day ; and twelve and 1 1 R. S. (3d. ed.) 620. 55 20, 23, 24 ; Id., I =1 R. S. (3d. ed.) 623, § 38 ; Laws of 1835, 622, § 36 ; Laws of 1835, chap. 164. | chap. 154. a 1 R. S. (3d. ed.) 620, § 22, et seq. ; Id , 445, I < 1 R. S. {3d. ed.) 624, SS 44, 45. (5 U-13. ' 1 R. S. (3d. ed.) 624, §$ 41, 46. HIGHWAYS. 279 a half cents for every hour any person or his substitute may be in de- fault Every person, or substitute, remaining idle, or not worldng faithfully, or hindering others from w^ork, is uable to be fined one dollar for each offence. If a person, required to furnish a team, car- riage, man, or implements, neglects or refuses to comply, he may be fined three dollars for each day, for wholly omitting to comply wi:h the requisition ; 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 team. Overseers are required to make complaint on oath, to one of the Justices of the Peace of the town, within six days after any person assessed shall be guilty of any refusal or neglect, for wliich a penalty or fine is prescribed, unless some satisfactory excuse be rendered.^ 14. The Commissioners of Highways are required to present a statement to the Supervisors of their respective towns, showing the amount of money necessary to be raised for improving the roads and bridges : this statement is to be laid before the Board of Supervisors, who are directed to assess, levy and collect, the amount therein speci- fied, not exceeding two hundred and fifty dollars in any one year, in the same manner as other town charges. The electors of any town may direct an additional sum of two hundred and fifty dollars, in any one year, to be raised, if the Commissioners deem it to be necessary, and make application for that purpose at the annual town meeting; notice of which apphcation must be given by the Commissioners, at least four weeks preceding the town meeting, to be posted up in at least five of the most pubEc places in the town. The vote directing the last mentioned sum to be raised, must be recorded in the minutes, and the Town Clerk is required to deliver a copy of the resolution to the Supervisor, to be laid by him before the board, and the amount specified therein is to be collected as above provided. The Board of Supervisors may also cause to be levied, collected, and paid, ia like manner, such sum of money, in addition to the two sums above men- tioned, not exceeding five hundred dollars in any one year, as a rna- jority of the qualified voters of any town may have voted, at any legal town meeting,- to be raised in their town, for constructing roads and bridges therein: a written notice of the apphcation to raise such amount, must be posted on the door of the house where the town meeting is to be held, and at three public places in the town, for two weeks before the town meeting, and also be openly read to the electors present, immediately after the opening of the meeting. The Board of Supervisors of any county, also, have the power to authorize a town, by a vote of such town, to borrow any sum of money, not ex- ceeding four thousand dollars in one year, to build or repair any 1 IR. S.(3cl.ed.) 625, §47,cl5eq.;l Johnson 515; 31(1., 471; 5Id.,I25j lOld.,470. 2S0 ITEW clerk's assistant. roads or bridges in such town, and prescribe the time for the pay- ment of the same, which time shall be within ten years, and for assessiw; the principal and interest thereof on such town.' 15. Whenever any damages are allowed to be assessed by law, when any road or highway shall be laid out, altered, or discontinued, in whole or in part, such damages shall be assessed by not less than three Commissioners, to^ be appointed by the County Court of the county in wliich such road or highway shall be, on the application of the Commissioner or Commissioners of the town ; and the Commis- sioners so appointed shall take the oath of office prescribed by the constitution, and shall proceed, on receiving at least six days' notice of the time and place, to meet the Highway Commissioners, and take a view of thepremises, and hear, the parties, and such witnesses as may be offered before them ; and they shall all meet and act, and shall assess all damages which may be required to be assessed on the same highway, and shall be authorized to administer oaths to all witnesses produced before them. When all the Commissioners shall have met and acted, the assessment agreed to by a majority of them will be valid; and when made, it is to be delivered to a Commissioner of Highways of the town, who is required to file it within ten days after receiving it, in the office of the Town Clerk. Any person conceiving himself aggrieved, or the Commissioner or Commissioners of High- ways of the town, feeling dissatisfied by reason of any such assess- ment, may, within twenty days after the filing thereof, as aforesaid, signify the same by notice in writing, and serving the same on the Town Clerk and on t^e opposite party, that is, the persons for whom the assessments were made, or the Commissioner or Commissioners of Highways, as the case may be, asking for a jury to re-assess the damages, and specifying a time, not less than ten, nor more than twenty days from the time of filing the said assessment, when the jury \n\l be drawn at the Clerk's office of an adjoining town of the same county, by the Town Clerk thereof The notice must be served upon the opposite party, as aforesaid, within three days after the service upon the Town Clerk, and may be served personally, or by leaving the same at the dwelling house of the party, with some person in charge thereof, or, if there be no such person, or the house be closed, then by affixing the same to the outer door of the said dwelling house." 16. Three days' previous notice that a jury is to be drawn, must be served by the person or party asking a re-assessment, on the Town Clerk of the adjoining town ; and at the time and place specified in such notice, said Clerk will deposit in a box the names of all persons then resident of the town, whose names are on the last jury hst, and 1 1 R. S. (Sd. ed.) 617, § 4 ; Laws of 1832, I a Laws of 1845, chap. ISO : Laws of 1847. diap. 274 ; Laws of 1838, chap. 314 : 1 HiU, | chap. 455. 60 i Laws of 1849, chap. 194. HIGHWAYS. 281 who are not interested in the lands through which such road shall be located, nor of kin to either or any of the parties, and draw there- from the names of twelve jurors. The Clerk is required to make a certificate of the drawing, setting forth the names, and the purposes for which they are drawn, which is to be delivered to the party ask- ing for the re-assessment.' 17. The party receiving the certificate as aforesaid, must deliver the same, within twenty-four hours thereafter, to a Justice of the Peace of the town wherein the damages are to be assessed, by whom a summons is to be forthwith issued to one of the constables of the town, directing him to summon the persons named in the certificate of the Town Clerk, and specifying a time and place for them to meet, which must not be within twenty days from the time of filing the original assessment in the office of the Town Clerk. On the appear- ance of the persons summoned, the Justice who issued the summons will draw by lot six of those attending, to servo as a jury, and the first six drawn, who are free from legal exceptions, shall constitute such jury. The jurors are to be sworn, well and truly to determine and re-assess such damages as shall be submitted to their consideration ; they are to take a view of the premises, hear the parties, and such witnesses as may be produced, who are to be sworn by the Justice, and render their verdict in writmg under their hands. Such verdict will be certified by the Justice, and delivered to the Commissioners of Highways of the town ; and the same will be final." 18. In' all cases of assessments under the foregoing provisions, the costs thereof will be paid by the town in which the damages shall be assessed ; and in cases of re-assessments by a jury, on the application of the Commissioners of Highways, if the first assessment be reduced, the costs of such first assessment will be paid by the party claiming the damages, but if not reduced, then by the town. Where a re- assessment is had on the application of a party claiming damages, if the damages be increased, the costs shall be paid by the town, but if not, they shall be paid by such party. Where several persons be- come liable for costs, they are so liable in proportion to the amount of damages respectively assessed to them by the first assessment' 19. When appUcations are made by two or more persons for a jury to re-assess damages, such jury will be drawn and summoned in ac- cordance with the notice first served upon the Clerk of the town in which the damages are to be assessed.* 20. Any person conceiving himself aggrieved by any determina- tion of the Commissioner of Highways, either in laying out, altering or discontinuing any road, or in refusing to lay out, alter or discon- 1 Laws of 1847, chap. 465. | a Laws of 1847, chap. 455. a Lawa of 1847, chap. 455. | * Laws of 1847, chap. 4j5. 282 NEW clerk's assistant. tinue, any road, may, at any time -within sixty days after such determi- nation shall have been filed in the office of the Town Clerk, appeal to the County Judge of the county. Such Judge, or, if he be a resident of the town, or be interested in the lands through, which the road is laid out, or of kin to any of the persons interested in such lands, or in case of his disability for any cause, then one of the Justi- ces of the Sessions shall, after the expiration of the said sixty days, appoint in writing three disinterested freeholders, who shall not have been named by the parties interested in the appeal, and who shall be residents of the county, but not of the town, in which the road is located, as referees to hear and determine all the appeals that may have been brought within the said sixty days. The Judge, or Jus- tice, must, also, notify the referees of their appointment, and dehver to them all papers pertaining to the matters referred to them.' 21. Upon receiving notice of their appointment, the referees are authorized to hear and determine the appeal or appeals referred to them ; but before proceeding to hear the same, they must be sworn by some officer authorized to take affidavits to be read in courts of record, faithfully to hear and determine the matters so referred to them. The decision of such referees must be filed in the office of the Town Clerk in which the road is located, and be carried into effect by the Commissioners of Highways. Such decision cannot be altered within four years from the time of filing the same. The fees of the referees are to be paid by the party appeahng, where the decision of the Commissioners is confirmed ; otherwise, by the county.2 22. In all cases of assessments of damages for laying out, or alter- ing a private road, the Commissioners of Highways of the town where the same is situated, must serve a notice on the Town Clerk, and on the person, or persons, interested in the road, specifying a time when a jury of the town will be sumnoned to assess the dam- ages for laying out or altering such road. The time must not be less than six, nor more than ten days, from the time of service of the notice. At the time mentioned in the notice, the Town Clerk will draw twelve jurors from the last jury list, in the same manner as on applications for re-assessments; and the drawing will be cer- tified to a Justice of the Peace, the jurors summoned, and their proceedings be conducted as on the aforesaid applications for re- assessments. The same juiy will assess all damages required to be assessed for the same road. All damages assessed for laying out, or altering any private road, together with the costs of the assessment, are to be paid by the party applying for the road.' 23. All damages finally assessed, or -agreed upon, by the Com- 1 Laws of 1840, chap. 130 ; Laws of 1847, I = Laws of 1847, chap. 455. chap. 465. I 8 Laws of 1847, chap. 455. HIGHWAYS. 283 missioners of Highways, for the laying out of any road, except pri- vate roads, are to be laid before the Board of Supervisors, by the Supervisor of the town, to be audited with the charges of all per- sons or officers employed in making such assessment; and such damao-es are to be levied and collected in the town in which the road is located, in the same manner as other charges for which said town is liable/ 24. No private road can be laid out over the lands of any person, without his consent, or the decision of a jury.' 25. Where there are three Commissioners in any town, any order signed by two of them wUl be valid, if it appear in such order, that all the Commissioners met and deliberated on the subject of the order, or were duly notified to attend a meeting of the Commission- ers for the purpose of deliberating thereon.' 26. Commissioners of Highways cannot maintain an action in their official name or title, but must use their individual names, affixing their official title ; as " E. F. Commissioner of Highways of the town of , in the county of , plaintiff, &c."* 27. A bond taken in the name of a Commissioner of Highways, for the benefit of the town even, is absolutely void — as Commission- ers have no authority to take a bond viriute officii.'' 28. For the provisions of the Revised Statutes in relation to High- ways, see Title 1, of Chapter 16, of Part I. 29. The Commissioners of Highways of adjoining towns may en- ter into contracts to build or repair bridges over streams dividing- such towns, and may be sued thereon.' 30. Where a public highway has been transferred to a plank road company, and the interest of tlie public in the road is paid for, the corporation succeeds to all the rights of the town Commissioners, in respect of making repairs, &o.' FORMS. § 491. Appointment of a Commissioner to Jill a Vacancy. County, ) Town of .i"^^' - Whereas, E. F., duly elected [or, appointed] a Commissioner of Highways in and for said town, to sei-ve until the day of 1 Laws of 1847, chap. 455. 2 4 Hill, 410; 61(1., 47; Amended Consti- tution or New York, Art. 1. § 7. 3 I R. S. C3J ed.) 611, 5 154 ; 22 Wendell, 134. « 4 Hill, 136; 5 Id., 216; I Denio,510. 5 4 Barbour's S. C. Hop,, 51. " Laws of 1S41, chap.saj. ' 3 Barbour's S. C. Rep., 459. 284 NEW clerk's assistant. 18 , has deceased, [or, has removed from said town; or, as the cane maybe:'] by reason whereof a vacancy exists in the office, of such commissioner: Now, therefore, we, the undersigned, three Justices of the Peace of the said town, [or, the Supervisor and two Justices of the Peace of the said town,] do hereby appoint K. R, to serve as su^-h Com- missioner, in the stead of the said E. F., until the next annual town meeting, to be held in said town, on tjie day of next Given under our hands, this day of ,18 „■ rp' f Justices of L. M. ^ f the Peace. § 492. Commissioner's Bond. Know all men by these presents : That we, E. R, L. M., and S. T., of the town of , in the county of , &\e held and firmly bv>unri unto A.. B., Supervisor of said town of , in the penal sum of one thousand dollars, to be paid to the said A. B., or his successor in office ; to which payment, well and truly to be made, we bind ourselves, and 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 , A. D. 18 . Whereas, the above bounden E. F. has been duly elected, [or, appointed,] a Commissioner of Highways in and for the said town of , to serve for the term of three years from the day of , 18 , \or, if appointed to fill a vacancy, say: to serve until the day of , 18 ,J and until a suc- cessor shall be duly elected or chosen : Now, therefore, the condition of tliis obligation is such, that if the said E. F. shall faithfully dis- charge his duties as such Commissioner, and within ten days after the expiration of his term of office, pay over to his successor what money may be remaining in his hands as such Commissioner, and ren'der to such successor a true account of all moneys received and paid out by him as such Commissioner, then the above obligation to be void ; else to remain in force. Sealed, signed, and delivered, ) E. F. [l. s. in presence of j- L. M. [l. s. G. H. ) S. T. [l. s.; I approve of th6 sureties named in the above bond. Dated at , the day of , 18 . A. B., Supervisor of the town of HIGHWAYS. 285 § 493. Order for Ascertaining a Road Imperfectly Deccribed, or not JRecorded. County, ) Town of J ^®- Whereas, a road leading from to , in said town of , now used as a highway, was laid out by the Commis- sioners of the said town, on the day of ,18, but not sufficiently described of record, \or, has been used for twenty years for such highway, but has never been recorded :] Now, there- fore, I, the undersigned, the Commissioner of Highways of said town, \or, we, &c., the Commissioners, &c. ; or, two of the Commissioners, &c., all of the said Commissioners having been duly notified to attend and deliberate on the subject of this order,] do order that said road be ascertained, described, and entered of record, in the Clerk's office of said town, according to a survey which has been made under my [or, our] direction, as follows: [insert the survey.'] [If only one line is surveyed, add: And I do further order, that the line of said survey be the centre [or, west line] of said road, and that the said road be of the width of rods.] Given under my hand, [or, our hands,] this day of , A.D. 18 . E. F., Commissioner. § 494. Annual Account for the Town Auditors. To the Board of Town Auditors of the Town of , in the County of : The annual account of the Commissioner of Highways of the said town of , for the year ending the day of , 18 , showeth as follows, viz. : 1. The labor assessed in said town, during the year ending on the day of , 18, , is days, and the amount of said labor actually performed is days; as appears by the returns made to me by the several Overseers of Highways in said town. 2. I have received for fines and commutations, under the statutes relative to highways, the sum of dollars, as follows, viz : Dale. From whom received. On what account. Amount received. 18 . July 6, Oct. 9, John Jones, James Jackson. Balance of money received by him as Overseer, Fine for obstructing highway, «7,86 «!i,00 286 NEW clerk's assistant. 3. The improvements wHch have been made on the roads and bridges in said town of ' , during the said year, are [niate the improvements ;] and the condition and situation of the roads and bridges in said town is, &c., [state the situation.'] 4. The following improvements, in my opinion, are necessary im- provements to be made on the roads and bridges in said town, to wit: [state the improvements deemed necessary;] and the expense of ma- king such improvements, beyond what the labor to be assessed this year will accomplish, is estimated by me at $ Given, &c., [as in § 493.] § 495. Statement and Estimate for the Supervisor. To the Supervisor of the town of , in the County of : The Commissioner of Highways of said town reports, that the following improvements, viz : [follow the Zd and 4:th clauses of the Report to the Town Auditors, as near as may be.] Given, &c., [as in § 493.] p 496. Notice of Application for Additional Sum. PUBLIC NOTICE. Notice is hereby given, to the electors of the town of , in the county of , that I, the undersigned, the Commissioner of Highways of said town, am of opinion that the sum of two hundred and fifty dollars, as now allowed by law, will be insufficient to pay the expenses actually necessary for the improvement of roads and bridges in said town ; and that the additional sum of S is neces- sary to make a bridge across the , near the house of , in said to^vn, [or, to repair the bridge, &c. ; or, to improve the road at, &c. :] And that I shall apply at the next annual town meeting of said town, in open town meeting, for a vote authorizing the said sum of $ , to be raised for the purpose aforesaid. Dated the day of , 18 . E. F., Commissioner. § 497. Order dividing Town into Districts. County, ) Town of , r^ I, E. F., the Commissioner of Highways of said town of , do hereby order, that the said town be divided into road dis- tricts, as follows, to wit: Road district number one shall embrace all of the highway commencing at [description:] and all the inhabitants HIGHWAYS. 287 liable to work on the highways, residing therein, shall be and are hereby assigned to work on said district number one. \^If any inha- bitants residing out of the district, are assigned to the district, add: And the following inhabitants residing out of the said district, are assigned and required to work on the same, viz : A., B., C, &c. :] District number two, shall, &c. l^Continue as aforesaid, until the whole town is divided.^ Given, &c., \as in § 493.] § 498. Appointment of Overseer, in case of Vacancy. County, I Town of ,P®- Whereas, a vacancy has occurred in the office of Overseer of Highways, for road district number , in said town, by reason of the removal [or, refusal to serve; or, death] of 0. P., elected to said office: Now, therefore, I, the undersigned, the Commissioner of Highways of said town, [or. We, &c., the Commissioners of, &c. ; or, two of the Commissioners of, &c., all of said Commissioners hav- ing been duly notified to attend and deliberate on the subject of this warrant,] do hereby appoint M. B., Overseer of Highways, of and for the said road district, number , in said town, to lill the said vacancy. Given, (fee, [as in § 493.] § 499. Overseer's List of Persons Liable to do Highway Labor. Town of , ss: I, 0. P., Overseer of Highways for road district number , in the town of , in the county of , do certify, that the following is a true and correct list of all the inhabitants who are lia- ble to work on highways, in said road district number , viz : John Smith, James Jackson, George Johnson, Richard Roe, &c., &c., &c., &c. Dated the day of , 18 . 0. P. Overseer. § 500. List and Statement of Non-Resident Lands. A. list and statement of the contents of all lots, pieces, or parcels of land, within the town of , in the county of , owned by non-residents therein : 288 NEW cieek's assistant. Owners. No. of District. Description. Value. No. of days. A, B. 21. East half of sub-division No. , &c. «2,000 00 10 Given, (fee, [as in § 493.] § 501. Assessment of Highway Labor. County, ) g. Town of ,) ' I, E. F„ the Commissioner of Highways of the said town of , having proceeded to ascertain, estimate and assess, the highway la- bor to be performed in said town for the ensuing year ; [or, We, The Commissioner receiving the application, is required to summon twelve disin- terested freetiolders, to examine the premises and consider such application. HIGHWAYS. 507 § 549. Certificate to DiscorUinue. County, K Town of ,r'- We, the undersigned, disinterested freeholders of said town cff , having met at the house of R P., in said town, on this day of ,18 , in pursuance of the summons of E. R, the Commissioner of Highways of the said town, in order t6 examine and certify in regard to the propriety of discontinuing tha road described in the annexed application of A. B., do certify, thai we have personally examined the said road, and that in our opinion the same is useless and unnecessary, and ought to be discontinued. In witness whereof we have hereunto subscribed our names, this day of , 18 . G. H., <&c., So. § 550. Order for Discontinuing a Road} County, ) Town of , J Upon the application of A. B., of said town, for the discontinu- ance of the road hereinafter described; and on the certificate of twelve disinterested freeholders, duly summoned and sworn, who have in due form certified that said road is useless and unnecessary^ it is hereby ordered by E. F., the Commissioner of Highways of said town of , [or, the Commissioners, &c. ; or, two of the Commissioners, &c., all of said Commissioners having been duly no- tified to attend and deliberate on the subject of this order,] that the said road, of which the following is a survey, made by the direction of the said Commissioner, \or, Commissioners,] viz : [insert survey^ be and the same is hereby discontinued, \or, be not discontinued.! In witness, &c., \as in § 526.] § 551. Appeal to the Comiiy Jvdge from, the Determination of Out Goihmissioner, or Commissioners, of Highways. To J. P. H., Esq., County Judge of County : I, A. B., of the town of , in said county, conceiving mysetf aggrieved by the determination of E. F., Commissioner of Highways of said town of , made on the day of ,18 , in > All applications, certificates and papers, I of the Town Clerk, aa soon as the eubjet^t relative to the laying out, altering or discon- matter of the same be decided, (i R, S., tinuing, any road, are to be filed in the odice | 618.) 808 NEW cibbk's assistant. laying out [or, altering; or, discontinuing; or, in refusing to lay out; ar, as aforesaid] a highway in said town, upon the application of C. D., do hereby appeal to you from such determination. The said Mghway [or, alteration of the said highway] is described in the order en the said Commissioner, filed and recorded in the oflSce of the Town Clerk of said town of . on the day of ,18 , * as follows : [insert description.'] The grounds upon which this appeal is made, are [state the same particularly/ ;] and said appeal is brought to reverse entirely the determination of the said Commissioner, [or, tb reverse the determination, &c., specifying the part sought to he re- versed^ Dated this day of ,18. A. B. § 552. Appointment of Referees hy the Govnty Judge. County, ss: Whereas, on the day of , A. D., 18 , A B., of the town of , in said county, appealed to me from the order and determination of E. F., Commissioner of Highways of said town, contained in his order, filed, &c., [as in § 551, to the * : if, however, the referees are to' hear several appeals, all should be mentioned in the appointment/] Now, therefore, in accordance with the statute in such case made and provided, I do hereby appoint G. H., S. T., and L. M., residents of the said county, but not of the said town of , referees to hear and determine the said appeal, [or ap- peals.] Given under my hand, this day of , 18 . J. P. H., County Judge. § 653. Appointrnent of Referees hy one of the Justices of the Ses- sions, where the County Judge is Interested, or otherwise Disabled. County, ss: Whereas, on the day of , A. D., 18 , A. B., of the town of , in said county, appealed to the Hon. J. P. H., County Judge of said county, from the order and determination of E. F., Commissioner of Highways of said town, contained in his order, filed, ■ Referees. L.M., ) § 556. Notice to the Appellant, or Applicant. To A. B.: Take notice, that we shall attend at the house of 0. P., in the town of , in the county of , on the day of SIO NEW CLERK'S ASSISTANT. bistant, [or, next,] at o'clock in the noon of that day, to hear and determine the appeal made by you [or, made by A. B.] to J. P. H., County Judge of said county, from the order and deter- mination of E. F., Commissioner of Highways of the said town of , contained in his order made on the day of , 18 , and filed and recorded in the oflSce of the Town Clerk of said town, on the d.ay of ,18 , refusing to lay out, ifcc, [as iii the appeal.^ Dated, &c., [as in § 555.] § 557. Suhpcena on an Appeal. County, ss: To M. B., R ¥., and P. T., greeting: You, and each of you, are hereby commanded, in the name of the people of the State of New York, to appear before us, at the house of O. P., in the town of , in said county, on the day of instant, [or, next,] at o'clock in the noon of that day, to testify in the matter of an appeal made by A. B., from a determination of E. R, Commissioner of Highways of the said town of , on the part of the said A. B., appellant, [or the said E. F., Commissioner.] Given under our hands, this day of ,18 Referees. § 558. Oath of the Referees. ^ You, and each of you, do solemnly swear, that you will faithfuDy hear and determine the appeal [or, appeals] referred to you. 8 559. Oath to he Administered to a Witness hy the Referees. The evidence you shall ^ve upon this hearing of the appeal of A. B., shall be the truth, the whole truth, and nothing but ih& truth. So help you God. , § 560. Decision of the Referees upon an Order in relation, to Alter- ing or Discontinuing a Road. County, ss: Whereas, on the day of , A. D., 18 , A. B., (£ the town of , in said county, appealed to the Hon. J. P. H, HIGHWAYS. 311 County Judge of said county, from the order and determination of E. F., Commissioner of Highways of said town, contained in his or- der, filed, (fee, [as in ^ 551, to the *, and then add:'\ copies of which said appeal and order are hereto annexed; and whereas we, the undersigned, having been duly appointed by the said County Judges \or, by E. W. B., Esq., one of the Justices of the Sessions of the said county, the said County Judge being disabled from acting in the premises,] referees to hear and determine the said appeal, attended at the house of 0. P., in the said town of , on this day of ,18 , at o'clock in the noon, in pursuance of notice duly given to the said Commissioner, and to the said A. B., the applicant above named, according to the statute in such case made and provided, to hear the proofs and allegations of the parties : And whereas, such hearing having been had in the premises, we do here- by adjudge, decide, and determine, that the order and determination of the said Commissioner* be, and the same is in all things afBrmed; [or, reversed ; or, reversed in part, as follows, to wit : set forth the decision inftdl.^ Given, &c., [a* m § 557.] § 561. Decision of the Referees on an Order Refusing to lay out a Road. County, ss: Whereas, mmcntaries, (2cl ed.) 78. taries, C2tlt;d.) 7u,elst;ri; 4 Johnson,52; 181d., I 32 Kent's Commentaries (2d ed ) 66, 87; 4 346; 20 Id., 1; 7 WendelJ, 47; 1 Hopkins, 498. 1 Johnson, B2; I Hill, 270. HUSBAND AND -WIFB. 319 tie parents or guardians must be given. In the State of New York, if the female be under the age of fourteen, the consent of the father, mother, or guardian, is required. Similar legislative regulations exist in New Hampshire, New Jersey, Kentucky, and other States. The most eminent jurists, however, concur in the opinion, that a marriage made according to the common law, without observing any of the statute regulations, would be valid.' 5. For the purpose of being registered and authenticated, accord- ing to the provisions of the Revised Statutes of this State, marriages are to be solemnized only by the following persons : ministers of the gospel, and priests of every denomination; Mayors, Recorders and Aldermen, of cities ; County Judges, and Justices of the Peace. It is the duty of clergymen, magistrates, and other persons who per- form the marriage ceremony, to keep a registry of the marriages celebrated by them ; and to ascertain, as far as practicable, and note in such registry, the ages of the persons married, and the time thereof, and their places of birth and their residences. It is also their duty, to allow the clerks of the school districts, within which they respectively reside, to inspect such registries, from time to time, and to furnish them such other information in their power as may be necessary to enable them to make the returns required by law. Clergymen and other persons solemnizing marriages, are also re- quired to ascertain that the parties are of sufficient age to contract marriage, and the names and places of residence of two of the attest- ing witnesses, if more than one be present, and if not, then the name and place of residence of such witness, which facts are, in like man- ner, to be recorded in their registry of marriages." 6. Whenever a marriage is solemnized, pursuant to the foregoing provisions, the minister, or magistrate, is required to furnish to either party, on request, a certificate thereof, specifying the names and places of residence of the parties married, and that they were known to such minister or magistrate, or were satisfactorily proved, by the oath of a person known to him, to be the persons described in such certificate, and that he had ascertained they were of sufficient age to contract marriage ; the name and place of residence of the attest- ing witness or witnesses ; the time and place of such marriage ; and that after due inquiry made, there appeared no lawful impediment to such marriage." 7. Every such certificate, signed by a mag^trate, if presented to the Clerk of the city or town where the marriage was solemnized, or to the Clerk of the city or town where either of the parties reside, within six months after such marriage, must be filed by such Clerk, 1 2 Kenl'8 Commentaries, (2d eJ.) 90, 91; I » 2 R. S. (3d ed.) 199, 200, §5 7-9; Lawa Laws of 1847, chap. 162. •SR. S.(3ded.)2Dl, 5 16. | HUSBAND AND WIFE. Q2l 11. Marriage is not only a bona fide and valuable consideration, but the very higbest known in law ; and marriage settlements and agreements, entered into before marriage, are greatly favored, and wiU be enforced even as against creditors.1 12. By tbe statute law of New York, all contracts made between persons in contemplation of marriage, remain in fuU force after the maniage takes place.' 13. A setdement after mairiage, in pursuance of a prior written agreement, is good against creditors ; otherwise, if made in pursuance of a parol agTeement' 14. A wife may contract with her husband after marriage, for a transfer of property from him to her, or to trustees for her, provided it be for a bona fide or valuable consideration. A voluntary separa- tion by husband and wife, and an agreement by deed, executed by them and a trustee, for the payment of an allowance for her separate maintenance, and containing a covenant of indemnity against debts contracted by her, is valid ; althou^-h it is well settled by the decisions of our own, and of the English courts, that the rights of the husband cannot be destroyed, nor the disabilities of the wife removed, by such agreement* 15. A wife may make a conveyance to her husband, through a third person.' 16. Where a wife leaves her husband without just cause, he is not answerable for her support; but if she offer to return, and he refuse to receive her, his liability is revived.' 17. The real and personal property of a married woman, in the State of New York, and the rents, issues, and profits thereof, are not subject to the disposal of her husband, but are her sole and separate property, — except the same be liable for debts contracted by her husband prior to the seventh day of April, 1848, where the marriage was solemnized previous to that day.' 1 8. A married woman, in the State of New York, may receive real or personal property, by gift, grant, devise, or bequest, from any person other than her husband, and hold the same, and the rents, issues, atid profits thereof, to her sole and separate use, and convey and devise the same, in the same manner, and with the like effect, as if she were unmarried; the same being neither subject to the dis- posal of her husband, nor liable for his debts." 1 Laws of 1848, chap. 200 ; 2 Kents' Com- mentaries, (2d. ed.) 162, et seq. : 1 Johnson's Ch. Rep., 108, 450 ; 3 Id., 77, 650 ; 7 M., 229 ; 17 Johnson, 648 ; 6 Paige, 111, 613. a Lawsof 1849, chap. 375. > 3 Johnson's Ch. Rep., 481 j 3 Paige, 240, 440. 4 2 Kent's Commentaries. (2d. ed.) 166, et eeq., 2 Johnson's Ch. Rep., 63r ; 8 Paige, 67 ; 21 2 Wendell, 422 ; 25 Id., 64 ; 2 Hill, 260 ; 3W, 399, and authorities there cited. s 2 Barbour's Ch. Rep., 232. « 4 Denio, 46. ' Laws of 1848, chap. 2(X); Laws of 1849, chap, 375. 8 Laws of 1848, chap. 200: Laws of 1843. chap. 375. 322 NEW clerk's assistant. 19. Where deposits are made by a married woman, or by a single female, afterwards becoming a married woman, in her own name, in any savings' bank or institution, in the State of New York, the same may be paid to her, and her receipt or acqtiittanoe, will be a sufficient legal discharge to the corporation.' FORMS. § 5^6. Short Form of Marriage, for Magistrates. The officer performing the ceremony will direct the parties to join hands, and then say : " By this act of joining hands, you do take upon yourselves the relation of 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 shall live : Therefore, in accordance vrith the laws of the State of New York, I do hereby pronounce you husband and wife." § 5 7 '7. Marriage Certificate. County,) g. 'Vown of j I do hereby certify, that on the day of instant, I ar, last past,] at the house of R F. [or, chiirch,] in -^id •town of , A. B., of, &c., and E. D., of, &c., were, wih itheir mutual consent, lawfully joined together in holy matrimony, which was solemnized by me, in the presence of M. P., of; (fee, and R. F., of, &c., attesting witnesses : And I do further certify, that the said A. B. and E. D. are known to me, [or, were satisfactonly 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, after due inquiry by me made, there appeared no lawful impediment to such marriage. Given under my hand, this day of , 18 . ^ Q. H., Rector of, &c., [or. Justice, &c.] 1 Laws of 1850, chi^9. 91. HUSBAND AND 'WIPK. 328 § 578. Magistrate's Certificate. County, ) Town of , r^ I do hereby certify, that G. H., Rector of, &c., by whom the fore- going \or, annexed; or, within,] 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. H., execute the same.] S. T., Justice, &c. § 579. Oath to Witness Proving Identity of Parties. You do solemnly swear, that you will true answers make to all such questions as shall be put to you, touching the identity of A. B. and E. D., here present § 580. Oath to Witness Proving Certificate. You do solemnly swear, that you wUl true answers make to all such questions as shall be put to you, touching the execution of this certificate. § 581. Marriage Articles. This indenture of three parts, made, &c., between A. B., of, &c., of the first part, E. D., of, &c., daughter of, &c., of the second part, and C. D., of, &c., and E. R, o^ ifec, of the thhd part, witnesseth: That whereas, the said E. D. is seized in fee, of and in, certain lands and tenements, with their appurtenances, situate, lying and being, [give the town, county, or state;'] And whereas, a maniag-e is shor% intended to b^ solemnized between the said A. B. and E. D., with whom the said A. B. is to have and receive dollars in money, over and besides the lands, &c., above mentioned, as and for her maniage portion : Now, therefore, it is covenanted and agreed, by and between the said parties to these presents, as follows : First, the said A. B., for himself, his heirs, executors and administrators, doth covenant and agree, to and with the said C. D. and E. F., their heirs and assig-ns, that they, the said A. B., and E. D., his intended wife, 824 NKW clerk's assistant. in case the said btended marriage shall be solemnized, by Some good and sufficient conveyance, or conveyances, will settle and assure the aforesaid lands and tenements, with the appurtenances, whereof she, the said E. D., is seized as aforesaid, on and to the said CD. and E. F., to the use and behoof of the said A. B., during the term of his natural life ; and from and after the decease of the said A. B., then to the use and behoof of the said E. D., his intended wife, for and during the term of her natural Ufe ; and from and after her de- cease, then to the use and behoof of the heirs of the body of the said E. D., by the said A. B. lawfully to be begotten ; and on the default of such issue, then to the use and behoof of the said E. D., her heirs and assigns forever, and to and for no other use, intent or purpose, whatsoever. And, secondly, for as much as the said A. B. is not at present seized, or possessed, of any estate sufficient to make a jointure for the said E. D., equivalent to her fortune, the said A. B., doth for himself, his heirs, ezecutors and administrators, covenant, grant and agree, to and with the said C, D. and E. F., their heirs and assigns, that in case the said intended marriage shall take effect, he, the said A. B., shall and will, by his last wiU and testament, in writing or otherwise, give and assure unto the said E. D. the sum of dollars, of lawful money of the United States, to be by her received and taken, to her own proper use and benefit, in case she shall sur- vive the said A. B. In witness whereof, the said parties have hereunto set their hands and seals, the day and year above written. Sealed, signed and delivered, ) A. B., [l. s.j in presence of J E. D., [l. s.] G. H. &c., &o., § 682. Settlement of an Estate, in Contemplation of Marriage. :• This indenture of three parts, made, &c., between E. D., of, &c., of the first part, C. D., of, &c., of the second part, and A. B., of, &c., of the third part, witnesseth : That whereas, a marriage is intended to be solemnized between the said parties of the first and third parts, and the said E. D. is possessed of certain personal estate, to wit: the sum of dollars, which is now deposited in the bank, in the city of , and shares of the capital stock of the insurance company in : Now, there- fore, in consideration of the premises, and of one dollar paid by the said 0. D. to the said E. D., the receipt whereof is hereby acknow- ledged, the said E. D. doth hereby assign, transfer and set over, to the said C. D., and his executors and administrators, all the moneys, HUSBAND AND WIFE. 326 property and efifects, above mentioned, to hold the same to him the said C. D., and his executors and administrators, upon the special trusts and for the uses and purposes following, to wit : First, That until the solemnization of the said marriage, the said C. D. shall pay oyer to the said E. D., or shall empower her to receive for her own use, all the income, profits and dividends, arising from the said monies and effects, and from any other estate which may be substituted therefor, as is hereinafter provided. Second, That from and after the solemnization of the said marriage, and during the coverture of the said E., the said C. D. shall receive and collect the income, profits and dividends, of the said trust mo- neys and effects, or of any other substituted estate, so often and whenever the same shall be payable ; and, after deducting all indi- vidual expenses, shall pay over the same, or so much thereof as she shall not direct to be added to the principal for the purpose of accu- mulation, to the said E., upon her sole and separate receipt therefor, and free from the control or interference of her said husband, or any other person whomsoever. Third, That in case of the decease of the said E., after the solem- nization of the said marriage, and during the life of her said husband, the said money and effects shall be transfen-ed and paid over by the said trustee, to such person or persons, as she, the said E., by an in- strument or note in writing, subscribed by her in the presence of at least two competent witnesses, shall order and appoint to receive the same ; and in default of her making such appointment, the same shall be transferred and paid to the said A. B. ; and in case of his decease before the said property shall be actually transferred and paid over to him, then to such person or persons as would be the legal representatives of the said E., by the statute for the distribution of intestate estates. Fourth, That in the event of the decease of the said A. B., during the lifetime of the said E., all the property then held in trust under this indenture, shall be transferred and conveyed back to the said E. ; and untn so transferred the trustee shall pay over to her, or empower her to receive, the income, profits and dividends of the same, for her own use. Fifth, That the said trustee shall have power, with the approba- tion, or at the request of the said E., expressed in writing, to sell and dispose of the said trust estate, or any part of it, and the proceeds to invest in other personal or real estate, according to the written di- rection of the said E. ; and the estate so purchased shall be had and held by the trustees, upon the same trusts, and for the same uses and purposes as aforesaid. Sixth, That in case of the decease of the party of the second part, €«• of his resigTiation of said trust, he, or his executors or administra- tcffs, shall convey, transfer and pay over, the whole of the trust estate 826 NEW clerk's assistant. then held by him, to such person, or persons, as may be appointed in writing by the party of the first part, to be the trustee, or trus- tees, under this indenture ; and such new trustee, or trustees, shall have all the powers, and shall hold the trust estate subject to all the provisions, herein set forth and expressed; and the receipt of such new trustee, or trustees, for the trust property, shall be a complete acquittance and discharge to the said party of the second part, his executors and administrators ; and, in Hke manner, other new trus- tees may be appointed from time to time, as occasion may require. And the said party of the second part doth hereby signify his acceptance of the said moneys and effects, and doth engage to hold and manage the same, upon the trusts, and for the uses herein men- tioned. And the said party of the third part doth hereby signify his assent to the provisions of this indenture, and doth covenant to and with the said party of the second part, and his successors in the said trust, to permit the said party of the first part, after the solemnization of the said intended marriage, to receive the aforesaid income, profits and dividends, to her sole and separate use, and freely to dispose of the trust estate, by her will, or by her testamentary appointment, and not to interfere with the said trust estate, otherwise than in conformity to the provisions of this indenture. In witness, &o., [as in § 681.] § 583. Agreement for Settlement before Marriage} This agreement, made and entered into this day of, &c., between A. B., of, &c., of the first part, and E. D., of, &c., of the second part, \add the third party, if necessary i\ witnesseth : That whereas a marriage is about to be had and solemnized between the said parties ; and the said party of the first part is desirous of mak- ing provision for a fit and proper settlement, to and for the use and benefit of the said E. D., his intended wife : Now, therefore, the said party of the first part doth hereby agree, that if the said marriage shaU be had and solemnized as aforesaid, he shall or will, on or before the day of next, assign, transfer, and set over, unto C. D., of, &c., by good and sufficient transfers, assignments and con- veyances, shares of the capital stock of the railroad company, now owned by and belonging to the said party of the first part; and also the sum of dollars in money; to have I Special conditions and provisions may be inserted in the ante-nuptial agreement, extend- ing the benefit of the trust to the children of the parties. See § 6S2. HUSBAND AND WIFE. 327 and to hold tte same unto tlie said C. D., to and for the sole and separate use and benefit of the said E., during the term of her natu- ral hfe. And it is further agreed between the said parties, that in case the said C. D. shall refuse to accept the said trust, then the said shares of stock and money as aforesaid, shall be transferred, assigned and set over, unto auch person as shall be nominated in writing by the said party of the second part, as such trustee, in the place and stead of the said C. D., to be held by him to and for the use and benefit of the said E., as aforesaid; and that the articles of settle- ment to be executed in pursuance hereof, shall contain a provision for the appointment of a trustee to fill any vacancy which may trans- pire, except as above provided, by the nomination in writing of the said party of the second part In witness, &c., [as in § 581.] § 584. Jointure in ,Zieu of Dower. This indenture, made and entered into this day of, &c., between A. B., of, &c., of the first part, E. D., o^ &c., of the second part, and C. D., of, (fee, of the third part, witnesseth : That the said A. B., in consideration of a marriage about to be had and solemnized between him, the said A. B., and the said E. D., does, for himself his heirs and assigns, covenant, grant and agree, to and with the said C. D., his heirs and assigns, that he, the said A. B., his heirs and as- signs, shall and will, forever hereafter, stand seized of and in a cer- tain tract or parcel of land, with the appurtenances, situate in the town of in the county of , and State of New York, aforesaid, and bounded and described as follows, [description :'\ to the uses following, that is to say : to the use of the said A. B., for and during the term of his natural fife, without impeachment of waste, and after his marriage with the said E. D., and after his de- cease, to her use, so long as she shall remain his widow and unmar- ried, [or, during her natural life,] without impeachment of waste, for her jointure, and in lieu and satisfaction of her whole dower in his estate ; and after his decease, and the expiration of her estate, to the use of his heirs and assigns forever. And the said E. D., in consid- eration of the premises, and in consideration of the sum of one dol- lar, paid to her by the said A. B., does, for herseK, her heirs, executors, and administrators, covenant and agree with the said A. B., that the lands so assigned to her shall be in full satisfaction of her dower in his estate, and shall bar her from claiming the same, if she shall survive, after said marriage ; and further, if the said mar- riage shall be had, and she shall suiTive him, that she will not claim any share in his personal estate, unless some part thereof be given to S2S NEW olerk's assistant. her by Us will, or some act done by him subsequent to the execu- tion of these presents. In witness, &c., [as in § 581.] § 585. Articles of Separatign. This indenture of three parts, made^ &c., between A. B., of, &c., of the first part, and E. B., his wife, of the second part, and C. D., of, (fee, of the third part, witnesseth : Whereas, divers unhappy dis- putes and differences have arisen, between the said party of the first part, and his said wife, for which reason they have consented and agreed to live separate and apart from each other during their natu- ral hfe : Now, therefore, the said party of the first part, in conside- ration of the premises, and in pursuance thereof, doth hereby covenant, promise and agree, to and with the said C. D., and also to and with his said wife, that he shall and wUl allow and permit his said wife, E. B., to reside and be in such place and places, and in such family and families, as she may from time to tune choose, or think fit to do ; and that he shall not, nor will, at any time sue, mo- lest, disturb, or trouble any person whomsoever, for receiving, enter- taining 01 harboring her ; and that he will not claim, or demand, any of her money, jewels, plate, clothing, household goods, or furniture, which tije said E. B. now hath in her power, custody, or possession, or which she shall or may at any time hereafter have, or which shall be devised or given to her, or that she may otherwise acquire ; and further, vnat the said party of the first part shall and will well and truly pa)', or cause to be paid, imto the said C. D., for and towards the support and maintenance of his wife, the said E. B., the yearly sum of dollars, free and clear of all charges and deductions whatsoever, for and during her natural life, payable quarterly, at or upon tht first day of January, April, July, and October, in each and every year during her said natural life ; which the said C. D. doth agree to take, in fuU satisfaction for her support and maintenance, and all alimony whatever. And the said C. D., in consideration of the sum of one doUar, to him duly paid by the said A. B., doth cov- enant and agTce, to and with the said party of the first part, to indemnify and bear him harmless, of and from all debts of his said wife, E. B., now contracted, or that may hereafter be contracted by her, or on her account ; and if the said party of the first part shall be compelled to pay any such debt or debts, the said C. D. hereby agrees to repay the same, on demand, to the said party of the first part, with all damage and loss that he may sustain thereby. In witness, &c., [as in § 681.] CHAPTER XXIV HOMESTEAD EXEMPTION LAW. PRACTICAL KEMAEES. 1. la the State of New York, the lot and buildings thereon, occu- pied as a residence and owned by a debtor, being a householder and haYing a family, to the value of one thoaisand dollars, will be exempt from sale on execution after the first day of January, 1851, for debts contracted subsequent to the tenth day of April, 1850. This exemption is to continue after the death of the householder, for the benefit of the widow and family, — some, or one of them continuing to occupy such homestead, — until the youngest becomes of age, and until the death of the widow. No release or waiver of such ex- emption will be valid, unless the same be in writing, subscribed by the householder, and acknowledged in the same manner as convey- ances of real estate are required to be acknowledged. 2. To entitle any property to this exemption, the conveyance thereof must show that it is designed to be held as a homestead, or if already purchased, or if the conveyance does not show the design a notice that the same is designed to be so held, and containing a full description thereof, must be executed and acknowledged by the person owning the property, and recorded in the office of the clerk of the county in which the same is situate. 3. This exemption will not extend to sales for the non-payment of taxes or assessments, or for a debt contracted for the purchase money, or prior to the recording of the deed or notice. 4. Where the premises claimed to be exempt as aforesaid, are worth more than one thousand dollars, in the opinion of a Sheriff holding an execution against the householder, it will be the duty of the former to summon six qualified jurors of his county, who shall upon oath, to be administered by him, appraise the said premises. If the jury are of opinion that the property may be divided without in- jury to the interests of the parties, they must set off so much 330 ifEw clerk's assistant. thereof, including the dwelling house, as, in their opinion, will be worth one thousand dollars, and the residue may be sold by the Sheriff m the same manner as other real property not so exempt If the jury are of opinion that the property cannot be divided as afore- said, and that the same is worth more than one thousand dollars, liey must make and sign an appraisal of the value thereof, and de- liver the same to the Sheriff, who wUl deliver a copy thereof to the execution debtor, or to some of his family of suitable age to under- stand the nature thereof, with a notice thereto attached, as in the form hereinafter given.' FORMS. § 586. Clause to be Inserted in a Deed of the Property designed to he jExempt. The premises above described and hereby conveyed, are designed to be held as a homestead, exempt from sale on execution, according to the provisions of the act entitled " An Act to Exempt from Sale on Execution, the Homestead of a Householder having a Family." — Dassed April 10, 1850. § 587. Notice to the Oov/nty Cleric of design to hold a Homestead Exempt, and AcTenowledgment. To E. B. C, Esquire, County Clerk of County: Sir: You will please take notice, that I design to hold as a home- stead exempt from sale on execution, accordiug to the provisions of the act entitled "An Act to Exempt from Sale on Execution the Home- stead of a Householder having a Family." — ^passed April 10, 1850, — 1 Laws of 1850, chap. 260. HOMESTEAD EXEMPTION LAW. 331 die following described property and premises, to ■wit; [Describe the premises in full, in the same manner as in a deed.'] Dated the day of ,18 Yours, &c. A.B. CoiiiLty,ss:' On tliis day of , in the year one thousand eight hundred and fifty-one, before me personally came A. B., to me known to be the individual who executed the above notice, and acknowledged that he executed the same for the purpose therein mentioned. W. W., Justice of the Peace in and for said county of § 588. Release or Waiver of the Exemption. In consideration of the sum of one dollar to me in hand paid by C. D., of the town of , in the coimty of , and state of New York, the receipt whereof is hereby acknowledged, I do hereby release and waive any and all benefit of the act entitled "An Act to Exempt from Sale on Execution the Homestead of a House- holder having a Family," — passed April 10, 1850 — so that any property held by me as exempt under or by virtue thereof may be levied upon and sold on any execution issued against me for any demand owing to the aforesaid C. D. Witness my hand, this day of ,18 A. B. [Add Certificate of Acknowledgment, as in ^ 587.] § 589. Oath to Jurors. You, and each of you, do solemnly swear, that you will well and truly perform the duties of a juror, in regard to the matters submitted to your consideration, according to the act entitled " An Act to Ex- empt from Sale on Execution the Homestead of a Householder having a Family," — passed April 10, 1850. 1 For other forms of acknowledgment, see Chapter I. NEW CiEEK'S ASSISTANT. § 690. Certificate of Jwrors setting off a Portion of the Premises. Supreme Court, A.B. " against |- County, County, ss: We, the undersigned jurors, summoned by the sheriflf of said county, •who holds an execution against C. D., the defendant in the above en- titled cause, in pursuance of the act entitled "An Act to Exempt from Sale on Execution the Homestead of a Householder having a Family," — passed April 10, 1850, — do hereby certify, that we have exam- ined the following described premises situate in the town of , in said county, to wit : \insert here a description of the premises ;] which said premises are owned by C. D. aforesaid, and are claimed by him to be exempt from sale on execution according to the act aforesaid, and that in our opinion the said premises* are worth thousand doUars, and may be divided without injury to the interests of the parties concerned therein : And we do hereby set off to the said A. B., the following described portion of the said premises, to wit : [describe the same ;] which last mentioned piece oi parcel of land, including the dwelling house thereon, and the appur- tenances belonging thereto, is, in our opinion, worth thousand dollars. Dated , the day of 18 K R, ) G. H., >• Jurore. &c.,&c.,) § 591. Certificate that Property cannot he divided. Supreme Court, A.B. \ against > County, ss : CD. ) We, the undersigned jurors, &c., \as in § 690 to the *, and then add:'\ are worth more than one thousand dollai's, and cannot be di- vided without injury to the interests of the parties concerned therein: And we do hereby appraise the value of the said premises at thousand dollars. Dated, &c., [as in § 590.] HOMESTEAD EXEMPTION LAW 333 § 592. Notice of Sheriff to he Attached to the Served on the Debtor. Supreme Court, A. B. ' /opy of § 691, and against CD. Sir : You will please take notice thai the foregoing is a copy of the cei-tificate of appraisal this day made by the jurors, by me summoned as in said certificate mentioned ; and that, unless the surplus of the value of the premises described in said certificate, as appraised by said jurors, over and above one thousand doUars, be paid to me within sixty days from the date of the serrice of this notice, the said premi- ses will be sold, by virtue of an execution issued against you in the above entitled cause.' Dated the day of ,18 Yours, &c., K. T., Sherift of County. To Mr. C. D. 1 If the surplus is not paid within sixty daya, the ehenff may advertise and sell the premises, as in other cases; and out of the proceeds of the sale, he must pay the execu- tion debtor one thousand dollars, which will be exempt from execution for one year theiB after, and apply the balance on the execution. The costs, and charges of the sheriff, must be deducted from such balance. CHAPTER XXV. JUSTICES' COURTS. PRACTICAL REMARKS. 1. There are but two kinds of actions in tte Courts of Justice of this State, -whether of record or otherwise, viz : civil and criminal aotiong.' 2. Justices of the Peace have civil jurisdiction in the following ac- tions, and no other: 1 . An action arising on contract, for the recovery of money only, if the sura claimed does not exceed one hundred dollars; 2. An action for damages for an injury to the person,or to real pro- perty, or for taking, detaining, or injuring, personal property, if the damages claimed do not exceed one hundred dollars; 3. An action for a penalty, not exceeding one hundred dollars, given by statute; 4. An action commenced by attachment of property, as hereinafter specified; 5. An action Upon a bond, conditioned for the payment of money, not exceeding one hundred dollars, though the penalty exceed that sum; the judgment to be given for the sum actually due. Where the pay- ments are to be made by instalments, an action may be brought for each instalment, as it shall become due; 6. An action upon a surety bond taken by them, though the penalty or amount claimed exceed one hundred dollars; 7. An action on a judgment rendered in a court of a Justice of the Peace, or of a Justice's or other inferior court, in a city; but no action can be brought on a judgment rendered by a Justice of the Peace, 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 in the original action was not personally served on the defendant, or on all the defendants, — or in case of the death of some of 1 Laws of 1S49, chap. 438, (Code of Procedure,) § 4. justices' courts. 335 the parties, — or where the docket or record of the judgment haa been lost or destroyed.' 3. Justices may also take and enter judgment, on the confession of a defendant, where the amount confessed does not exceed two hundred and fifty dollars.' 4. No Justice of the Peace has cognizance, however, of a civil ac- tion in which the People of this State are a party, except for penal- ties not exceeding one hundred dollars ; nor of an action in which the title to real estate comes in question ; nor of a civil action for an assault, battery, false imprisonment, libel, slander, malicious prosecu- tion, criminal conversation, or seduction ; nor of a matter of account, where the sum total of the accounts of both parties, proved to th« satisfaction of the Justice, exceeds four hundred dollars ; nor of an action against an Executor or Administrator, as such.' 5. Civil actions may be commenced in Justices' Courts, either by the voluntary appearance of the parties, or by process. There are three different forms of process — summons, warrant, and attach- ment Where a suit is instituted without process, it will be deemed to have been commenced at the time of joining the issue: if a sum- mons or attachment be issued, the suit will be deemed commenced on the day when the process is delivered to the Constable ; if the process be a warrant, the suit will be deemed commenced at the time of the arrest of the defendant.* 6. There are two kinds of process by summons, generally distin- guished as a long summons and a short summons. A long summons is the usual process against all persons residing in the county where it issues ; and it is the only one which can issue, of course, in any case, against a freeholder, or an inhabitant of any county having a family. A short summons is the proper form of process to be issued in favor of a non-resident plaintiff, suing as such, when the defendant cannot be arrested under the provisions of the non-imprisonment act; and it is the only process, except an attachment, which can be issued, in similar cases, against a non-resident defendant. Any other process would be void. But where there are jojnt debtors, one or more of whom reside ia the county, suit may be commenced against them bj long summons.' V. Warrants may be issued iu actions for injuries to the person, rights, or property of another ; or for taking or detaining persona] property; or for the recovery of money collected by a public officer, for official misconduct or neglect of duty; or misconduct or -neglect ' Laws of 1849, ch. 433, (Code of Procedure) Part I. tille vl., § S3 ; Id., Part II. title i. § 71. 2 Laws of 1849, chap. 433, (Code of Pro- cedure,) Part 1., title vi., § 53, su*. 8 ; 2 R. S. (3ded.)342, §§114-116; 9 Wendell, 669. s Laws of 1849, chap. 438, (Code of Pro- cedure,) Part I., title ti., 5 64. < 2 R. S. (3d ed.) 326. § 12, 13. 6 2 R. S. (3d ed.) 326, 327, {■ 14 et eeqj Laws of 1831, chap. 300, 55 30-33 ; 15 Wen- dell, 662; 16 Id., 35; 17 Id., 617; 3 HilL 323; Fid., 186; 6 Id., 631; IDonio, 175: } Id., 93. SSB NEW cleIik's assistant. in any professional employment ; subject, however, to the provisions ©f the statute which restrict the use of this process to the following eases, viz: Where the defendant is a non-resident; where it appears to the satisfaction of the Justice, by the afiBdavit of the appKcant, or «f any other witness, that the person against whom the warrant is desired, is about to depart from the county, with intent not to return thereto; where the defendant is an inhabitant of the county, having a family, or a freeholder of the same county, and it shall in like man- ner appear to the satisfaction of the Justice, that the plaintiff will be in danger of losing his demand, unless such warrant be granted ; where the plaintiff is a non-resident, and tenders to the Justice secu- rity for the payment of any sum which may be adjudged against him in the suit; and at the option of the Justice, against a resi- dent defendant, not a freeholder, nor an iahabitant having a family ; or against a defendant upon whom a summons shall have been served, only by leaving a copy, or in any other way than by reading or delivering a copy to laim personally, and who shall not have appeared at the time and place appointed in such summons, nor shown good cause for not appearing.' 8. There are two kinds of attachments, long and short. The lat- ter issues against a non-resident defendant, and may be had when a short summons is also a proper process ; and either may be taken, at the option of the party. No affidavit is necessary on an appUca- tion for a short attachment A long attachment issues, when it is made to appear to the satisfaction of the Justice to whom application is made, that the debtor has departed, or is about to depart, from the county where he last resided, with intent to defraud his credi- tors, or to avoid the service of eivU process; or that such debtor keeps himself concealed, with the like intent; the same process is- sues, under the non-imprisonment act, when the Justice is satisfied that the defendent is about to remove from the county some of his property, with intent to defraud his creditors, or that he has assigned, (fisposed of, secreted, or is about to assign, dispose of, or secrete, any of his property, with the like intent The Eevised Statutes limit the nature of demands, for which attachments may be sued out to those existing against the debtor personally, whether hquidated or not arising upon contract, or upon judgments rendered within this State. The non-imprisonment act extends the process to suits for the recovery of any dfebt or damages arising upon contract, express or im- plied, or upon any judgmenVwhether rendered in this State or not The demand, however, .must be against the debtor personally. In aU eases, the facts and circumstances relied on as the foundation for the issu- ing of an attachment must be set forth distinctly in the affidavit accom- p ' ■ ' 2R. S. (3d ed.) 327, 328, §518-23; Laws I 389: 7 Id., 434: 13 Id. .MS: IB Id., 654 j IS •f 1831, chap. 300 ; Laws of 1840, chap. 166 ; Id., 35; 17 Id., 51; 2 Hill, 296; rDemo,176. H., chap. 377; 2 Cowen, 429; 3 Wendell, | justices' courts. 337 panying tlie application. The only material diflference between the pro- ceedings on attachments issued under the statute, and those issued under the non-imprisonment act, subsequent to the issuing of the pro- cess, is, that in the latter case, where property is attached, and a copy of the inventory and attachment is not personally served, and the de- fendant does not appear, the plaintiff may take a short summons; and if the defendant be personally served therewith, or cannot be found after diligent inquiry, the Justice may proceed to hear and determine the cause in the same manner as upon a summons per- sonally served.' 9. An affidavit for an attachment, stating facts and circumstances, on belief only, is fatally defective ; but if the party swears he has been informed of the facts set forth, the affidavit will be sufficient' 10. On an attachment against joint debtors, a Justice cannot render judgment, where one only of the defendants has been served with the process. The proceeding must be dismissed, or a summons issued.' 1 1. When the name of any defendant sued in a Justices' Court, is not known to the plaintiff, he may be described in a summons, or warrant, by a fictitious name ; and if a plea in abatement be inter- posed by such defendant, the Justice before whom the suit is pending may amend the proceedings, according to the truth of the matter, and proceed in the cause, to hke manner as if thedefendant had been sued by his right name.* 12. It is no part of the official duty of a Justice to deliver a sum- mons to a constable.' 13. Where a summons is returned served by copy, and another summons is issued, the suit will be legally continued, even in cases affected by the statute of limitations.' 14. The pleadings in courts of Justices of the Peace are — 1, the complaint by the plaintiff; 2, the answer by the defendant 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 made to them in the docket The complaint must state, in a plain and direct manner, the facts constituting the cause of action. The answer may contain a denial of the complaint, or any part thereof, and notice, also, in a plain and direct manner, of any facts constituting a defence. Pleadings are not required to be in any particular form, but must be such as to enable 1 2 R. S. (3d ed.) 328, 5 27 et seq ■ Laws of 1831, chap. 300, § 34; Laws of ISVl, chap. 10?; 15 Johnson, 196 ; 3Cowen.206; 6 1(1., 234; 10 Wendell, 420; 12 Id. ,359; 13 Id., 46, 404 ; 14 Id , 237 ; 16 Id., 456, 479 ; 20 Id., 77 146, 184 : 23 Id., 336 ; 24 Id., 486, ; 5 Hill, S64; 6 Id., 311; 1 Denis, 186. 22 ' 4 Denio, 93. 5 aComslock, 112. * LawsofiaSO, chap. 32a » 3 Denio, 12. s 3 Denio, 12. 838 NBW clerk's assistant. a person of common understanding to know what is meant 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 ; if the court deem the objection well founded, it must order the plead- ing to be amended, and, if the party refuse to amend, the defective pleading must be disregarded. In an action or defence, founded upon an account, or an instrument for the payment of money only, it will be sufficient for a, party to deliver the account or instrument to the court, and to state, that there is due to him thereon from the ad- verse party a specified sum, which he claims to recover or set off.' 1 5. A variance between the proof on the trial, and the allegations in a pleading, will be disregarded as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby. The pleadings in a Justices' Court 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 the issue, and it be made to appear to the satisfaction of the court, by oath, that an adjournment is necessary to the adverse party in consequence of such amendment, an adjournment must be granted. The court may also, in its discre- tion, require as a condition of an amendment, the payment of costs to the adverse party, to be fixed by the court ; but no amendment can be allowed after a witness is sworn on a trial, when na adjotirn- ment will be thereby made necessary." 16. In case a defendant does not appear and answer, in an action before a Justice of the Peace, the plaintiff cannot recover without proving his case.' 17. At the joining of the issue, the court may require of either party, at the request of the other, to exhibit his account or demand, or state the nature thej-eof as definitely as may be in his power, at that or some other specified time ; and in case of the default of the party, he wUl be precluded from giving evidence of such parts thereof as shall not have been so exhibited or stated.* 18. If the defendant do not appear on the return of a summons or ■attachment, the Justice before whom the suit is brought may adjourn the cause to a time certain, not exceeding eight days, on the simple motion of the plaintiff, without oath; — and so if the defendant appear and do not object; but the defendant may object, and require as a condition of the adjournment, that the plaintiff, or his attorney, make oath that he cannot, for want of some material testimony, or witness, safely proceed to trial An adjournment on the application of the 1 Laws of 1849, chap. 438, (Code of Proce- 1 s Ihid., Inc. cit. durc.)PanI., tkle vi., S64. > Ibiil., loc. cit. I < Ibid., lac. cit. JVSTIOSS' COITRTB. 339 plaintiff cannot be granted at any other time than on the return of a Bummons or attachment, or the joining of issue without procefes, except upon an application for a commission, when the plaintiff is entitled to the sajne time and privileges as a defendant A defendant may make application for an adjournment, at the time of joining issue, in afl cases, except where the suit is commenced by warrant on behalf of a non-resident plaintiff. The defendant, or his attorney, may be re- quired, on such application, to make oath that he cannot safely pro- ceed to trial, for the want of some material testimony, or witness, to be specified by him. In addition to such oath, the defendant must, if required, execute the bond, a form of which is hereinafter given. A defendant may have a second or further adjournment, pn giving security, if required, and proving, by his own oath, or otherwise, that he cannot safely proceed to trial, for want of some material testimpny, or witness ; and that he has used due diligence to obtain such testi- mony, or witness. Where a suit is commenced by a non-resident plaintiff, the first adjournment is to be not less than three nor more than twelve days, unless the parties and Justice otherwise agree. In no case can the time of adjourning a cause exceed ninety days from the time of joining the issue, except with the consent of parties. A Justice may adjourn a cause, with or without the consent of pai-ties, on his own motion, at the time of the return of a summons or attach- ment, or of joining issue without process, not exceeding eight days; and he may hold a cause open, or adjourn it, on issuing an attach- ment for a witness, or a new venire. Justices have a discretion to exercise in refusing or granting an adjournment, which will not be interfered with on appeal, except there be a clear abuse of that dis- cretion.' 19. Consent will give a Justice jurisdiction in respect to parties^ but not as to the subject matter of a suit' 20. A Justice of the Peace may, when an issue of fact shall have been joined before him, upon the application of a party showing the materiality of the testimony of a witness beyond the reach of a subpoena, issue a commission to one or more persons to examine such witness on oath, upon interrogatories to be settled by the Justice ; and whenever the defendant neglects to appear, or to plead in such action or suit, and the plaintiff makes application for a commission to take the deposition of a material witness, the Justice may issue a com- mission without notice, — the interrogatories accompanying the samQ being proposed by the plaintiff, and settied by the Justice." I 2 R. S. (3d. ed.) 335, 336, § 6S, el Beq. ; 8 Johnson, 426 ; 11 Id., 407- 13 Id., 2^; 15 Id., 4W ; 1 Cowen, 112. 234, 253 ; 2 Id., 425 : 7 Id , 369; 1 WoiideU, 4^4 ; 3 Id., 420; 10 Id., 497; 11 Id., 461, 534; 3 Hill, 323; 7 Id., 77. « 12 Johnson, 285 ; 17 Id., 63 ; 3 Hill, 323. » Laws of 1838, chap. ai3 ; Laws of 1811, chap. 138 ; Laws of 1817, chap. 329. 040 NEW clkbe's assistant. 21. It must be made distinctly to appear, on an application for a commission, that the witness is material, and that he does not reside in the county where the suit is pending, nor in an adjoining county. An affidavit, stating that the witness is in " another county," and that he "is, or may be, material," is not sufficient^ 22. Witnesses may be required to attend before any Justice of the Peace, in the same, or in an adjoining coimty, in pursuance of a sub- pcena duly served.^ 23. A Justice of the Peace must enter judgment forthwith, on the verdict of a jury ; he cannot wait until the next day." 24. When there is no jury, a Justice must render his judgment within four days after the trial. It need not be entered on his docket within that time, but a memorandum thereof must be made on the papers in the action.* 25. The plaintiff must be present, either in person or by attorney, when a verdict is rendered.' 26. A Justice of the Peace, on the demand of a party in whose favor 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 noted 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 hke effect, in every respect, as in the county where the judgment was rendered, except, that it shall be a lien, only from the time of filing and docketing the transcript. But no such judgment for a less sum than twenty-five dollars, exclusive of costs, wiU be a lien upon real property." 27. Where a transcript of a judgment is docketed in the office of the Clerk of the city and county of New York, such judgment will have the same effect as a lien, and be enforced in the same manner as a judgment of the Court of Common Pleas of such city and county.' 28. Executions may be issued on a judgment in a Justice's Court, whether rendered before or after the passage of the act of 1849, at any time within five years after the rendition thereof, and must be made returnable sixty days from the date thereof Where a judgment is docketed with the County Clerk, the execution must be issued by him to the Sheriff of the County, and be executed in the ' Mme manner as other executions and judgments of the County Court, 3r, in the city and county of New York, of the Court of Common Pleas.' I f Hill, 77. I " Laws of 1819, chap. 438, (Code of Pro»- • 2 R. g. (3d. ed.) 337, § 81, et seq: | dure, Fan I., title vi., § 63. •SDeoio, 12. ' Ibid., Part I., title vii., § 68. < S Comstock, 134. I > Ibid., Fart I., title ri., $ 61. >3Denio, 12. I justices' courts. 341 29. A Justice of the Peace may renew an execution issued by him from time to time, by an endorsement specifying the amount due, if any thing has been paid or collected thereon, and the date of the renewal ; the endorsement must be signed by the Justice.' 30. An execution issued by a Justice may be renewed while yet unsatisfied, though levy has been made' provided there be not suffi- cient time to advertise and sell under it." 31. The docket of a Justice is good evidence before himself, with- out proving its identity, or showing his official character." 32. Where the statute requires a "bond " to be executed, in any proceeding had before a Justice, a mere covenant, or agreement in writing, to become holden, on certain conditions, is not sufficient* 33. Courts of Justices of the Peace, are not courts of record, and judgments rendered before them will be barred by the statute of fimitations, even though docketed in the office of the County Clerk, at the expiration of six years from the vendition thereof 34. The Justices' Courts in the city of New York, and Justices' Courts in other cities, have jurisdiction in all civU actions similar to those in which Justices of the Peace have jurisdiction ; and, also, in actions upon the charters or by-laws of the corporations of their re- spective cities, where the penalty or forfeiture does not exceed one hundred dollars.' 35. Justices of the Peace have power to issue process for crimes committed in the county where they reside, but not for those com- mitted in another county, even if the offender be in the county where the Justice resides.' 36. Courts of Special Sessions are to be held by a single magis- trate, and all offences triable before such courts are to be tried with or without a jury, at the election of the prisoner. Any criminal warrant or process issued for an offence triable before a Court of Special Sessions, must authorize the officer executing it, to take the offender before some magistrate in the town or city where the offence was committed, provided the magistrate issuing the same reside in some other town or city. The city of New York is excepted from the operation of this provision.' • 2 R. S. (3d. ed.) 347, § 144. » 1 Denio, 574. » 1 Denio, 432. < 1 Denio, 1S4. • 4 Barbour's S. C. Rep., 442. • Laws .of 1849, chap. 438, (Code of Proee- dure,) Part I., title viiA SS 66, 67. ' 6 Hill, 164. ■ Laws of 1845, chap. 180, ^ 15, 26. 842 NEW clerk's assistant. F E M S. § 593. Svmmons} Town of ,\^. County, 5 To any Constable of the said County, greeting : The people of the State of New York command you to summon A. B. to appear before me, the undersigned, one of the Justices of the Peace of the town aforesaid, at my office, \or, as the case may Je,] in the said county, on the day of , at o'clock, in the noon, to answer C. D., in an action arising on contract, [or, in an action for damages for an injury to the person of the said C. D. ; or, as the cause of action may Se,] to his damage one hundred dollars or under. And hare you then there this precept. Witness my hand, the day of , 18 . J. H. B., justice of the Peace. § 594. Affidavit for Short Summons hy Nbn-Besident Plaintiff. County, ss: C. D., being duly sworn, says that he has, as he verily believes, a good cause of action, arising on contract, \or, on a judg-ment founded on contract,] against A. B., upon which, according to the provisions of the 31st section of the act to abolish imprisonment for debt, and to punish fraudulent debtors, no warrant can issue against the said A. B ;* and that this deponent resides in the town of , in the county of , and not within the said county of ; and this deponent prays a short summons against the said A. B., on giving gecurity, according to the statute. Sworn to, this day ) C. D. of , 18 , before me, j C. C, Justice of the Peace. § 595. Affidavit for Short Swrnmoiis against Ifon-Sesident Defendant. County, ss: C. D., being duly sworn, &c., [as in § 594 to the *, and then ' A loTtff Bummons must be made retilmable | in not less than two, nor more than four days. fn not less than six, nor more than twelve days In computing the tune, the day of the date ia tiojn the date thereof; and a short Bummons { tr be excluded, and the return day included. jusTioBs' oonitTS. 343 add:'\ and that the said A. B. resides in the county of and out of the said county of ; and this deponent prajrs a short summons against the said A. B. C. D. Sworn, &c., [cw m § 594.] § 596. Description of Parties suing in a Particidar Character. Of Administrators. — A. B. and C. D., administrators of all and singular the goods and chattels, rights and credits, which were of E. F. deceased. Hxecutors. — A. B. and CD., executors of the last will and testa- ment of E. F., deceased. Surviving Executor. — A. B., surviving executor of the last will, &c. Surviving Partner, or Joint Creditor. — A. B., survivor of A. B. and C. D. Husband and Wife. — A. B., and C. B. his wife. Assignee of Bail Bond. — A. B., assignee of A. P., Esq., Sheriff of the county of Assignee of Insolvent Debtor. — A B., assignee of E. F., an insol- vent 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 § 597. Affidavit for Warrant, in an Action for a Wrong. County, ss: C. D., being duly sworn, says that he has, as he verily believes, a good cause of action against A. B., for breaking and entering the close of the said C. D., in the town of , in said county, and taking and carrying away therefrom, (fee, [set forth the cause of ac- tion.] And this deponent further says, that the said A. B., who resides in said county of , is not a freeholder therein, nor an inhabitant thereof having a family, [or, that the said A. B. is not a resident of the ^d county of , but a resident of the county of ; or, that he, the said C. D., is a non-resident of said county, and a resident of the county of , and is willing to give security for the payment of any sum which may be adjudged against him in any suit to be commenced hereupon ; or, that the said 344 NEW CLERK'S ASBISTAITT. A. B. lately mformed E. R, in the presence of this deponent, that he was about to depart from said county of , with intent not to return thereto, [or state other facts and circumstances showing such intention;] or, that this deponent will, as he verily believes, be in danger of losing his said demand, unless such warrant be granted, and that the following are the facts and circumstances on which that belief is founded, viz : [state the facts ;'] and this deponent makes ap- plication for a warrant against the said A. B., according to the statute. Sworn, &G., [as in § 594.] C. D. § 698. Affidavit for Warrant, in an Action on Contract. County, ss : C. D., being duly sworn, says that he has, as he verily believes, a good cause of action against A. B.^ for money collected by the said A. B. in his official character as Constable, [or, for the official mis- conduct, [or, neglect of duty,] of the said A. B. as Constable ; or, for damages arising from the misconduct or neglect of the said A. B., in his professional employment as an attorney :] And this deponent further says, that the said A. B. is a non-resident of said county of, (fee, [or, as in § 597.] and, therefore, he makes application for a warrant against the said A. B., according to the statute. Sworn, &c., [as in § 594.] C. D. § 599. Recognizance on Issuing Warrant, or Short Summons. Coimty, ss: Be it remembered, that on the day of > 18 , appli- cation having been made to the undersigned, one of the Justices of the Peace of said county, by C. D., a non-resident of said coimty, for a warrant, [or, short summons,] in his favor against A. B., in an action arising on contract, [or, as the cause of action may bei\ E. F. thereupon personally came before me, and acknowledged that he owed to the said A. B. one hundred dollars, to be paid if default should be made in the following condition, viz : that the said C. D. shall pay to the said A. B. any sum which may be adjudged against him the said 0. D., in the suit to be commenced by the said warrant, [or, short summons.] H. T. C, Justice, ^ i • , ^ f, J) \ Complaint. A. B., plaintiff, complains that C. D., defendant, carelessly aild violently ran against the carriage of the plaintiff, with the team and wagon of the defendant, on the day of , 18 , and broke and damaged the said carriage to the amount of twenty-five dollars; whereupon, the plaintiff demands judgment against the de- fendant for the twenty-five dollars. A. B., Plaintiff § 613. Complaint for Breach of Warranty. In Justice's Court, t'afnst I ^^^°^^ ^- ^■' -^^l- M T\ \ Complaint. A. B., plaintiff, complains that C. D., defendant, sold a horse to the plaintiff, on the day of , 18 , for the sum of dollars, and warranted the same to be perfectly sound, kind, and true, but the said horse is bUnd of the right eye, is vicious and unruly, and not true in the harness, whereby he is injured to the amount of fifty dollars ; whereupon thef plaintiff demands judgment against the defendant for the fifty dollars. A. B., Plaintiff 350 UEW clerk's ASSISTAITT. § 614. Complaint for Fraud or Deceit. In Justice's Court, ^?-, ) Before C. C, Esq. against > „ i • ^ ^ ^ -p, I Complaint. A. B., plaintiff, complains that C. D., defendant, sold a horse to the plaintiff, on the day of , 18 , for the sum of dollars, which said horse, to the knowledge of the defend- ant, was diseased of the heaves at the time of the sale, but the defendant did not inform the plaintiff thereof; whereby the said horse is injured to the amount of fifty dollars, and the plaintiff demands judgment against the defendant for the same. A. B., Plaintiff § 615. Complaint for Conversion of Personal Property. In Justice's Court, \k^t \ ^^^"'^ ^- ^■' ^^■ f^ T\ \ Complaint. A. B., plaintiff, complains that on or about the day of , 18 , he was possessed, as of his own property, of a certain gold watch, of the value of one hundred dollars, which afterwards,, and on or about the day of , 18 , came into the hands and possession of C. D., the defendant, who sold the same and converted the proceeds to his own use ; whereupon the plaintiff demands judg- ment against the defendant for the one hundred dollars. 'i A. B., Plsuntiff § 616. Complaint for Injury to Real Property. In Justice's Court, ^- ?\ ] Before C. C, Esq. «g"*^*' [Complaint A. B., plaintiff, complains that on or about the day of , 18 , C. D., the defendant, {or, the horses and cattle of C. D., the defendant,] broke and entered the close of the plaintiff, at , in the county of , and trod down and destroyed the grass and products of the soil there growing; whereby the plaintiff has sustained damage to the amount of fifty dollars, and he demands judgment against the defendant for the same. , A, B., Plaintiff JITSTIOBS' coxmTS. 361 § 617. Complaint hy an Assignee, In Justice's Court, ^•?- ) Before C. C, Esq. r\ T\ \ Complaint A. B., plaintiff, complains that C. D., defendant, was indebted to Gr. H., on the day of , 18 , in the sum of one hun- dred dollars, for medical services rendered to the said defendant pre- vious to that day, which said indebtedness has been duly assigned to the plaintiff; whereupon the plaintiff demands judgment agiansi the defendant for the one hundred dollars. A. B., Plaintiff § 618. Answer of Defendant. In Justice's Court, ^■?\ ? Before C. C, Esq. aqainst > . • i Q jj I Answer. C. D., the defendant, answers to the complaint, that on the day of 18 , he paid the indebtedness mentioned in the com- plaint, [or, that the plaintiff did not perform the work and labor for the defendant, mentioned in the complaint; or, that he did not war- rant the horse mentioned in the complaint to be perfectly sound, kind, and true.] C. D., Defendant § 619. Answer, with Notice. In Justice's Court, ^ ^\ ] Before C. C, Esq. aqatnst >■ . » i s, J. I Answer. C. D., the defendant, answers to the complaint, that he did not take, and does not detain the property, [or, did not break and enter the close,] mentioned in the complaint, as is therein stated; and he gives notice that he wUl prove on the trial of this action that the property mentioned in the complaint was taken, and is detained by him, with the consent and permission of the plaintiff, [or, that he broke and entered the close mentioned in the complaint, in order to remove a quantity of wheat levied on by him as a constable of the county of , by virtue of an execution against the plaintiff, is- sued by C. C, Esquire, Justice pf the Peace of said county, m favor of G. H., and dated on the day of , 18 .] C. D., Defendant 352 TsrEW clerk's assistant. § 620. OatJi on Application for an Adjournment.'^ You do swear, that you will true answers make to sucli questions as shall be put to you, touching" the necessity of an adjournment in this cause. § 621. Oath of Surety on Adjournment. You do swear that you will true answers make to such questions as shall be put to you, touching your competency as surety for A B., on his application to adjourn this cause. § 622. Examination of Witness, on the Application of the Defend- ant for an Adjournment, in a Cause commenced hy War- rant at the Suit of a Non-Resident Plaintiff. In Justice's Court, C D ^ ■ . ■ / Before Gr. H., Esq., one of the Justices of the "f * -o f Peace of the County of County, ss: L. M., a witness attending, produced and sworn, by and on behalf of the plaintiff in this cause, being duly sworn, on his direct exami- nation by the plaintiflF, says : \set forth the testimony.^ Sworn, &c., [as in § 594.] L. M. Town of , ) S^'L' § 623. Subpmna. County, The People of the 'Sta,te of New York, to E. R, L. M., &c., &c., Greeting : We command you, and each of you, that all business and excu- ses being laid aside, you and each of you be and appear, in your proper persons, before the undersig-ned, one of the Justices of the Peace of the said town, at his office in , in the said coimty, on the day of , at o'clock in the noon, then and there* to testify those things which you or either of you know, I Foi other forms of oaths, see those given in Chapter XI. justices' doubts. 863 in a certmnf action now depending before the said Justice, between C. D., plaintiff, and A. B., defendant, on the part of the defendant [or, plaintiff.] [Jf a witness is required to produce some paper or other evidence, insert here: And you, L. M., are further commanded to bring with you, and then and there produce in evidence, a certain agreement in writing, (fee, or, as the case may he, describing the pa- per.'\ Hereof fail not at your peril. Witness my hand, this day of , 18 . G. H., Justice of the Peaca § 624. Subpoena for Witness to make Affidavit for Attachment Town of ,\^. County, j The people, &c., [as in § 623 to the *, inserting the word " forth- with " after " appear," and then add,^ to make affidavit of all and singular those thmgs which you, or cither of you, know, touching an application made to me by C. D., for an attachment against the pro- perty of A. B., and of any facts and circumstances tending to estab- lish the grounds of said application. Hereof, &c., \as in § 623 to the end.^ § 625-. Subpoena for Special Sessions. Town of ,1 . County, j The People, (fee, [as in § 623, to the f, and then addi] matter then and there to be tried between the people of the State of New- York, and A. B., on the part of the said people, [or, A. B.] Here- of (fee, [as in § 623, to the end.'] § 626. Affidavit of Service of Subpoena, County, ss : C. D., the plaintiff named in the annexed subpoena, being duly sworn, says, that on the day of ,18 .at the town of , in said county, he personally served, the said subpoena on L. M., a witness therein named, by reading the same [or, stating the contents thereof,] to him, at the same time paying [or, tendering] to him the sum of twelve and a half cents ; that the saicl L. M., is s( 23 354 NEW clerk's AssisTAirr. material witness for this deponent on the trial of the cause mention- ed in said subpoena; and that he, the said L. M., has neglected [or, refuses] to attend the trial of said cause. ' Sworn, &e., las in 8 594."] CD. § 627. Oath to Party, Proving Service of Subpoena. You do swear, that you will true answers make to such questions as shall be put to you, touching the service of the subpoena in this cause. § 628. Attachment for Witness. County, ss: The People of the State of New York, to any Constable of said County, greeting: - We command you to attach L. M., and bring him before the un- dersigned, a Justice of the Peace of said county, at his office in the town of i forthwith, \or, as the case may be,~\ to testify those thing-s which he may know, in a certain cause now depending before the said Justice, between 0. D., plaintiff, and A. B., defendant, on the part of the plaintiff, [or, defendant;] and also to answer all such matters as shall be objected against him, for that he, having been duly subpoenaed to attend the trial of said cause, has refused [or, neglected] to attend in conformity to such subpcena; and have you then there this precept Witness, &o., [as in § 623.] § 629. Notice of Application for a Commission. C. D. 1 against > Before G. H., Esq., one of the Justices of the Peace of A. B. ) the County of : Sir : Take notice that an application for a commission to be directed 10 S. T., of the of , to examine R P., of the same place, a witness in the above entitled cause, upon interrogatories to be annexed to such commission, wUI be made to G. H., Esq., at his office in the town of , on the day of . 18 , at o'clock in the noon. Dated , the day of , 18 . C. D.,Plaintiff. To A. B., Defendant justices' comiTS. 359 § 630. Oath of Service of Notice. Tou do swear, that you will true answers make to such questions as shall be put to you, touching the service of notice of an application for a commission in this cause. § 631. Oath on applying for Commission. You do swear, that you will true answers make to snch questions as shall be put to you, touching the necessity of issuing a commission in this cause. § 632. Commission.^ County, ss: To S. T., of the of : Whereas it appears to me, the undersigned, a Justice of the Peace of the town of , in said county, that K P., of the of , aforesaid, is a material witness in a certain action now depending before me, between C. D., plaintiflF, and A. B., defendant: Now, therefore, confiding in your prudence and fidelity, and in pursuance of the statute, I have ap- pointed, and by these presents do appoint you. Commissioner to ex- amine the said witness ; and for that purpose, do authorize you, at certain days and places, to be by you appointed, diligently to exa- mine the said witness, on the interrogatories hereto annexed, on oath to be taken before you ; and to cause such examination to be reduced to vniting, and signed by such witness and yourself, and return the same, annexed hereto, to me, enclosed under your seal. Given under my hand, at the town aforesaid, the day of , 18 . G. H., Justice of the Peace. § 633. Commissioner's Summons to Witness. County, ss: Whereas, the undersigned has received a commission, issued by Q. H., Esq., a Justice of the Peace of the county of , directed for the examination of R P., a witness in a cause depending before the said Justice, between C. D., Plaintiff, and A. B., defendant : You, the ' where a commission. ia issued to a person I vised StatuteSj in the same manner as in IhB not familiar wiili our laws, it would be well to case of coinmissions issued out of courla of annex to tlie commission acopy of § 16, of Art record. 8, of title 3, of Chap. 7, of part 3 of the Re- 1 SS6 NEW olsrk's assistant. said R P., are therefore required to be and appear before me, the said Commissioner, at mj dwelling house, in the town of , pn, &c,, then and there to be examined, and to testify the truth, ac- cording te the best of your knowledge, for and on behalf of the said jplaintiSff, [or, defendant,] and herein you are not to fail Dated the day of , 18 . a T. • § 634 Oath to WiMess Exammtd on a Comnmsion. You do swear, that the answers to be given by you to the interro- gatories proposed to you by the Commissioner here present, to exe- cute a commission directed to liim, issued by G. H., Esq., a Justice of the Peace of the county of , in a certain action there depending before him, between C. D., plaintifif, and A. B., defendant, shall be the truth, the whole truth, and nothing but the truth. § 635. Deposition of Witness before Commissioner. Deposition of R P., a witness produced, sworn and examined, on oath, on the day of , 18 , at &c., by virtue of a com- mission issued to S. T., by G. H., Esq., a Justice of the Peace of the county of , in a certain cause depending before the said Jus- tice, between G. D., plaintifif, and A. B., defendant The said R P. deposes as follows : To the first interrogatory, he saith, [give answer of witnessJ] To the second interrogatory, he saith, &o. R P. Subscribed and sworn before me, ) this day of , 18 . j S. T., Commis^oner. § 636. Endorsement of an Exhibit produced before, the Commis- sioner. On the day oi ,' 18 , at the execution of a coBunis- fflon issued by G. H., Esq;, a Justice of the Peace of the county of , for the examination of R. P., a witness in a certain action depending before the said Justice, between C. D., plaintiff, and A. B., defendant, the within paper writing marked "A," was produced and shown to the said R P., a witness sworn and examined, and by him deposed unto at the time of his examination as a witness under such commission. S. T., Commissioner. jhstioeb' ooubts. i41 § 63V. Venire. Town of ,) g. County, J To any Constable of the said County, greeting : The People of the State of New York command you to summon twelve good and lawful men, in the town of , qualified to serve as jurors, and not exempt from serving on juries, in courts of record, and "Who are in no wise of kin to either party, or interested in the suit hereinafter mentipned, to appear before me, one of the Justices of the Peace of said town, at my office in said town, on the day of , 18 , at o'clock in the noon, to make a jury for the trial of an action arising on contract, [or, as the cause of action may 6e,] between C. D., plaintiff, and A. B., defen- dant : And you are also required to make a list of the persons sum- moned, which you will certify and annex to this venire, and make return thereof to me. Witness, Confession for $ A.B. ) In the presence of G. H., Justice of the Peace, I do hereby confess judgment, on a demand arising on contract, [or as the nature of the demand may oe] to the plaintiff in the above entitled action, for doKars, and consent that the said Justice enter the same against me accordingly. Dated the day of , 18 . A. B. § 643. Affidavit where the Confession is for a Sum exceeding Fifty i)ollars. County, ss: We, C. D. and A. B., the parties named in the foregoing \or, an- nexed] confession of judgment, being duly sworn, severally say, that the said A. B. is justly indebted to the said C. D., in the sum of dollars, over and above all just demands which the said A B. has against the said C. D.; and that the above \or, annexed] con- fession is not made, or taken, vrith a view to defraud any creditor. Subscribed and sworn, before me, ) C. D. this day of , 18 . j A.B. G. H., Justice, dec. ■ justices' courts. 359 § 644. Transcript of Judgmeni. In Justice's Court, CD. against A. B. Judgment rendered for the plaintiff, against the defendant, May 6, 1846, for $28 02 Costs, 1 90 $29 92 Fee for transcript, to be added, 25 County, ss: I certify that the above is a true copy of a judgment rendered by and before me, and now remaining unsatisfied upon my docket; that the said judgment was rendered in the absence of the defendant, upon contract; [or, as the case may he:'\ and that E. F. and O. P. were the witnesses sworn on the part of the plaintiff therein. Dated the day of ,18 G. H., Justice, &c. § 645. Execution. Town of ,)gg. County, f To any Constable of said town, greeting : Whereas, judgment has been rendered before me, one of the Jus- tice of the Peace of the said county, against A. B., defendant, in favor of C. D., plaintiff, for dollars and cents : Therefore, the People of the State of New York command you, to levy the amount of the said judgment, with interest from the day of , 18 , on which day judgment was rendered, until received, of the goods and chattels of the said defendant, (except such goods and chattels as are by law exempted from execution,) and bring the money before me sixty days from the date hereof, to render to the said plaintiff: and have you then there this preoepi \If the defen- dant may he arrested on the execution, add here: And if no goods or chattels can be found, Or not sufficient to satisfy this execution, you are further commanded to take the body of the said A. B., and con- vey him to the common jail of the said county, there to remain untD this execution shall be satisfied and paid.] Witness my hand, the day of , 18 • G. H., Justice of the Peace. Damages, - . . . $ Costs, .... Judgment, .... Poundage, ■ ; ■ Amount, i90 NEW cleke's assistant. § 646. Renewal of ExeeuUon. The witMn 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. § 647. Complaint to obtain Surety of the Peace. County, ss: A. B., of said county, being duly sworn, says, that on the day of , 18 , one 0. D., of the town of , in said county, did threaten to beat and wound [or, kiU, or as the cane may 6e,] Hm, the said A. B. ; and that he hath just cause to fear that the said C. D. will beat and wound \or, ]dll,as the case may be] him, the said A. B. ;* wherefore this deponent prays that the said offender may be bound by recognizance, to answer tbe said offence at the next Court of Sessions to be held in the said county, and in the mean- while to keep the peace. A. B. Sworn, &c., [as in § 594.] § 648. Peace Warrant. Town of ,) g. County, j To any Constable of the said County, greeting : Whereas, A B. hath this day made complaint, upon oath, before me, G-. H., one of the Justices of the Peace of the said town, that on the day of , 18 , one C. D., of, &c., [as in § 647 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 C. D., and 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. § 649. Commitment on Foregoing Complaints County, ss: To any Constable of the said County, greeting: Whereas, A B. this day made complaint to me in writing, on oath, that C. D., on the day of instant, [or, last pasi,] ' For form of recognizance, see i 708L JUSTIOES' COUBTS. 8jJ threatened to, <&c., [as in the complaint:'] And whereas, it appearing to me, upon the examination of the said complainant, and E. F., and O. P., witnesses, duly made on oath, reduced to writing, and sub- scribed by them, that there was just reason to fear the commission of the said offence by the said C. D. ; and he being brought before me on my warrant, was required to enter into recognizance in the sum of dollars, with sufficient surety, to appear at the next Court of Sessions to be held in the 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 complainant And the said C. D. having refused [or, neglected,] to find such secu- rity, you are therefore commanded, in the name of the People of the State of New York, forthwith to convey him to the common jail of the said county, and to deUver him to the keeper thereof, who ia hereby required to receive the said C. D. into his custody, and Inm safely keep in the said jail, until he shall find such security, or be discharged by due course of law. Witness, &c., [as in § 648.] § 650. Warrant to discharge Prisoner on Finding Security. CoTinty,ss: G. H. and S. T., Esqrs., two of the Justices of the Peace of the said County, to the Keeper of the Common Jail of the said County, greeting: These are to command you forthwith to discharge out of your cus- tody C. D., if detained by you in said 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, f oimd such sureties before us. Given under our our hands and seals, this day of , 18 . G. H., Justice, [l. b.] S. T., Justice, [l. b.J § 651. 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 him, the said A. B., at the town of , in said county ; where- fore this deponent prays that the said offender may be dealt with ac- oording to law. A. R Sworn, &c., [as in § 594.] 362 KEW glebe's assistant. § 652. Assavit and Battery Warrant. Town of , ) County, j" To any Constable of the said County, greeting: Whereas A. B. hath this day made complaint, upon oath, before me, G. H., one of the Justices of the Peace of the said town, that ou the day of , 18 , at the town of , in said county, one C. D. did violently assault and beat him, the said A. B. : Therefore, the People of the State of New York command you forth- with to apprehend the said C. D., and bring him before me, at my oflSce in the said town of , [or, if the offence be committed in another town, say : take him before S. T., Esq., or any other magi- strate resident and being in the town of , aforesaid,] to be dealt with according to law. Witness, &o., [as in § 648.] § 653. General Form of Warrant. County, ss: To any Constable of the said county, greeting : Whereas, A. B. has made complaint, upon oath, before me, G. H., one of the Justices of the Peace of the said county, on this - day of , 18 , that, (fee, [state the offence, as in the complaint:^ Therefore, the People of the State of New York command you forth- with to apprehend the said C. D., and bring him before me, at my oflSce, in the town of , in said county, [or, change the form as in § 652, if the offence was committed in another town, and is triable before a Court of Special Sessions^ to be dealt with accord- ing to law. Witness, &c., [as in § 648.] § 654. Complaint for Grand or Petit Larceny. County, ss: A. B., of said county, being duly sworn, says, that certain personal property of the said A. B., \or, as the case may 6e,] to wit: [de- scribe property,^ of the value of doEars, or upwards, 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 pays process to apprehend the said offender. A. B. Sworn, &c., [as in § 594.] justices' COURTl 863 § 655. Warrant for Larceny. County, ss: To any Constable of the said County, greeting : Whereas, A. D. has made complaint, upon oath, before me, G. H., one of the Justices of tlio 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 complaiiitA 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 § 652, to the end.'\ § 656. Complaint for Murder.' Coun^, 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 afore- ^;hought, killed 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 \m- known to the deponent] Sworn, &c., [as in § 594.] § 657. Complaint 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 the 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 , afore- said, one E. 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, (fee, [as in § 594.] 1 The forms of warrants to accompany the I form (S 653)the precise langauge of the com- complaints for murder, and the subsequent plaint^ commencing at Iho word " that," after forms to § 705; are not given, for the reason I the * in each form, and concluding with the that no difficulty can be experienced in pre- command to arrest, as in § 648. Where the paring them from §§ 548, 652, 653, and 655. word " deponent " occurs, the name of the ft is only necessary to insert in the general I individual should be inserted in full. 804 NEW ei>BRE's AssisTAm;. § 658. Qomplaint for Murder hy Stahling. Coimty, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last pasl^] 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 aforethought, stab one M. P., Tjfith 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 § 594] § 669. Complaint for Murder hy 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 afore- thought, 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 which the said M. P., &c., [as in § 658, to the endi\ § 660. Oomplointfor Mwrder 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 R D., feloniously, wilfully, and of malice afore- thought, with a bowie knife, made an assault upon, and did strike and cut the throat of M. P. therewith, and did give him one mortal woimd thereon, of which the said M. P., &c., [as m § 658, to the end] § 661. Complaint against Accessory After the Fact. County, ss: A. B., of said county, &c., [as in either of the preceding com- plaints for murder, to the end, and then add/] And that afterwards, to wit, on the day of instant [or, last past,] at the town of , in said county, one R S., well knowing the said R D. to have done and committed the said felony and mui-der, did feloniously and wilfully conceal [or, aid, comfort and assist] the said justices' courts. 386 R D., ■with the intent and in order that the said K D. might avoid, or escape from, arrest, [or, trial; or, conviction and pimishment,] for the said felony and murder. Sworn, &c., [as in § 694.] § 662. Complaint for Arson, in the Pirst Degree. County, ss: A. B., of said county, being dxdy 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, ma- liciously 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 dwelling house. Sworn, (fee, [as in § 594.] § 663. 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 § 662, to the end, substituting "in the day time "/or "in the night time; " or, say, at the town of , in said county, in the night time, one R D. did unlawfully, wilfully, maliciously and feloniously, set fire to and bum the warehouse of ' one M. P., situate in said town ; which said warehouse was adjoining to, [or, within the curtUage of,] the inhabited dwelling house of the said M. P., whereby the said dwelling house was endangered.] Sworn, (fee, [as in § 594.] § 664. 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 R. D. did wilfully, maliciously and feloniously, set fire to and burn the warehouse, &c., [as in § 663, to the end; or, in the night time, one R. D. did unlawfully, wilfully, maliciously and feloniously, set fire to and burn a certain school house, situate in school district number , in said town.] Sworn, (fee, [as in § 594.} S66 KKW CLERK'S ASSISTANT. § 665. Complaint 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 R D. did unlawfully, wilfully, maliciously and felo- niously, set fire to and bum a certain crop of barley then growing in the field of the said A. B., situate in said town. Sworn, &c., [as in § 694.] § 666. 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 R D. did wilfully and feloniously strike one M. P., with an axe, then in the hands of the said E. 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, &c., [as in § 694.] § 067. Complaint for Manslaugliter, 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 kiQ an unborn quick child, of which one E. P. was then and there pregnant, by kicking the said E. P., with intent to kill her, the said E. P., or the said unborn quick cliild. Sworn, &c., [as in § 594.] § 668. Complaint for Manslaughter, in Killing an Unborn ChUd, by Administering Drugs, etc., to the Mother. County, ss: A. B., of said county, being duly sworn says,* that on the day of instant, [or, hist past,] at the town of , in said county, one R D. did wilfully and feloniously administer to one E. P., who was then and there pregnant with a quick cliild, a certain medicine, di-ug, or substance, called "savin," [or, use or employ a justices' COtTRTS. 367 certain instrument, called a "forceps,"] -with intent thereby to des- troy such unborn quick child : ■whereof the said unborn quick child died immediately, [or, languished a short time, and then died.] Sworn, &c., [as in § 594.] § 669. 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. did 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 car- nally know. Sworn, (fee, [as in § 594.] § 670. 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 R. 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 feloniously, did carnally know. Sworn, (fee, [as in § 594.] § 671. Complaint for Assault, with Intent to Commit a 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. did feloniously make an 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, (fee, [as in § 594.] § 672. 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 866 KEW clerk's assistant. said county, one R D. did make an assault upon Ler, the said A. B., [or, one E. P.,] and did then and there unlawfully, 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 R. D., [or, one L. M. ; or, with the intent that she should be defiled.] Sworn, (fee, [as in § 594] § 673. Complaint for taking Female under Fourteen Years of Age from Her Parent, or Chmrdian. 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 feloniously 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 pros- titution, [or, concubinage; or, marriage.] Sworn, &c., [as in § 594.] § 674. Complaint for Mayhem, or Maiming. 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., from premeditated design, and by Ipng in wait for the purpose, did unlawfully and feloniously assault the said A. B., and did then and there put out one of the said A. B.'s eyes, [or, one R 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 § 694.] I 675. Complaint for Child baling. 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 eounty, one R. D., did feloniously, maliciously and forcibly, [ro, fraudu- JTJSTIOKS' COTTRTB. 369 lendy, if no force was tisedyl take, [or, lead,] and carry away; [or, decoy ; or, entice away ;] one R. 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 A. B. Sworn, &c., [as in § 594.] § 676. Complaint for Abandoning Child. 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 expose and leave a certain child, named E. D., imder the age of years, of which child said R D. was the father, [or, which child had been confided to the care of the said K D.,] with intent wholly to abandon the said child. Sworn, &c., [as in § 594.] § 677. Complaint for Shooting at, or Attempting to Shoot at, with Intent to Kill, Boh, 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 Idll him, the said A. R, [or, did feloniously 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 § 594.] § 678. Complaint for Assatdt with Deadly Weapon, with Attempt 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 means of a certain deadly weapon, to wit, an axe, then in his hands, make an assault 24 370 KEw clerk's assistant. ■ia<. ':■ upon the said A. B., and him, the said A. B., did then and there, with the said deadly weapon, beat and ill-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., with intent, &c., as above.^ Sworn, &c., [as in § 594.] § 679. Complaint for Poisoning Food. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instarit, [or, last past] at the town of , in said county, one R. D., with intent to injure and kill one M. B., and divers other persons, did maliciously and feloniously 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 other persons. Sworn, (fee, [as in § 594,] § 680. Complaint 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 R. D., with intent to injure and kill one M. B., and one or more of the members of his family, and divers other persons, did maliciously and feloniously mingle a certain poison, called arsenic, with the waters of the well belonging 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 purpose 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 members, of his family, and divers other persons. Sworn, &c., \as in § 594.] § 681. Complaint for Assault, with Intent to Rob, or Commit Burglary. Coimty, 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 justices' OOtlRTS. 871 cbunty, one R. D. did feloniously make an assault upon the said A. B., ■with intent to commit robbery upon 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 § 594.] § 682. Complaint for Burglary. Coun County, \ We, C. D. and E. F., of , in said county, acknowledge ourselves to be severally indebted to the people of the State of New York ; that is to say : the^aid C. D. in the sum of dollars, and the said E. F. iii 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 appear at the next Court of Oyer and Terminer, [or. Court of Sessions,] to be held in and for said county,* then and there to answer to a complaint against him for, (fee, [state the com- plaint,'] and to do and receive what shall, by the coiirt, be then and &ere enjoined upon him: [if the recognizance is entered into by a witness and surety, say: then and there to give evidence on the part of the said people against C. D., charged with, &c., [as the of- fence may he,] as well to the grand jury as to the petit jury,]* and shall not depart the court without leave;] [in a recognizance on a peace warrant insert here: and in the meanwhile shall keep the peace towards the people of this State, and particularly towards A. 380 NEW clerk's assistant. B., and omit ail that part of the form between the two *«,] tlien this recognizance to be void; otherwise of force. Taken, subscribed, and acknowledged, ) C. D. [i. S.1 the day of , 18 , before me, % E. F. [l. s.J G. H., Justice, &o. § 709. Record of Conviction at Special Sessions, State of New York, ) County, J 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 ia the town of , in said county, C. D. was brought before the said court, charged on the oath of A. B., 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 plead not gmlty, [or, guilty :] whereupon such jjrooeedings were had in the said court, that the defendant was con- victed of the charge [or, charges] above specified,* and the court rendered judgment thereon, that the said C. D., &c., [as the jvdg- ment may Je.J In witness whereof, I have hereunto subscribed these presents, the day of , 18 . G. H., Justice of the Peace. § 710. Commitment from Special Sessions. Stateof New York, )g. County, j To any Constable of the said County, greeting: At a Court of Special Sessions, duly held by the undersigned, 7 Cowen, 326, | • 2 R. S. (3 d ed.) 22, § 137 ; Id 194, 5 8 : 16 > 4 Cowen, 350, 473 ; 1 Denio, 113. Wendell, 465 : 21 Id. , 492 ; 10 Paige, 393, 637. •IDeiu'o. 602. I > 7 Hill, 83. 382 NEW clerk's assistant. a subsequent purchaser in good faith, and for a valuable consideration. Leases for life or lives, or for years, in the counties of Albany, Ulster, Sullivan, Herkimer, Dutchess, Columbia, Delaware and Schenectady, in the State of New York, need not be recorded.' 7. In South Carolina, a conveyance of an estate in land for life, or lives, must be in writing, signed, sealed and delivered. In Virginia and Kentucky, the same rule prevails as to all estates or interests in land exceeding a term of five years ; and in Rhode Island and Ver- mont, as to all estates exceeding a term of one year. In Louisiana, all conveyances of land must be in writing, and registered in the offioe of a notary." 8. A lease for years, without saying how, many, is good for two years. In the city of New York, if no time is agreed on as to the duration of an agreement for the occupation of lands or tenements, it will be deemed valid until the first day of May next after posses- sion is given.' 9. Where a lessor consents to a change of tenancy, and accepts a substituted tenant, the first tenant is discharged.* 10. A new lease, if valid, whether by parol or not, will operate as a surrender of a former lease.' 11. The interest of a tenant under a lease executed by a mortga- gor, subsequent to the execution of a mortgage, is extinguished by a foreclosiure and sale under such mortgage." 12. Where a fraudulent representation is made by a landlord, as to the property demised, or the extent of his rights, the lessee is en- titled to a deduction froin the rent for the fraud.' 13. Interest is recoverable on a covenant for the payment of rent, from the time the rent is due, even where the rent is payable in grain or services, the value of which is not liquidated by the lease.' 14. A covenant by the lessee to pay assessments runs with the lease, and the assignee of the term is bound by it.' ik There are four kinds of leases— /or Zi/e or lives, for years, at will, and by sufferance. A tenant at will is one who occupies under an ag-reement to be determined at the pleasure of either of the par- ties. One who enters under an agreement to purchase, or for a lease, but has not paid rent, is a tenant at wiU ; a parol gift of lands has also been held to create this species of tenancy. If the agree- ment be to let, premises so long as the parties choose, reserving a compensation io be paid daily, it creates a tenancy at will. A notice to quit terminates a tenancy at will, and turns it into a tenancy from year to year. Where a tenant holds over after the expiration of his • 2R.S.(3a ed.) 4q,51;Id.,47,55«,49; ' Vjrendeli, 485; 6 Id., 213; 8 Id., m ' 4 Kent's Comnicntaries, (2d ed.) 451. •2R. S. (3d ed.) 29, 51. * 2 Barbour's S. C. Bep., 180. » 2 Barbour's S. C. Rep., 180. <> 3 Uenio, 214. ' 1 Comsloct, 305. • 2 Comstock, 135. • 2 Coimtock, 394. LANDLORD AND TENANT. 383 term, or where a person selling lands refuses to deliver them up, and continues in possession, a tenancy by sufferance is created' 16. No lease or grant of agricultural land, for a longer period than twelve years, made subsequent to the first day of January, one thou- sand eight hundred and forty-seven, in which any rent, or service of any kind, is reserved, will be valid ; and all fines, quarter sales, and other hke restraints upon alienation, reserved in any grant of land subsequent to that day, will likewise be void." 17. A tenancy at will, or by sufferance, may be terminated by the landlord's giving one month's notice in writing to the tenant. In the Eastern States, three months, and in the Middle and Southern States, six months' notice.is required. A tenant may also give notice of his intention to quit the premises, and if he does not yield pos- session at the time specified in his notice, he is Uable to pay double rent' 18. A tenancy from year to year may be determined, in New York and Vermont, by a notice of at least half a year, (182 days, or six calendar months,) ending with the period of tlie year at which the tenancy commenced. In Massachusetts, reasonable notice is required, and a notice of sixty days has been held sufficient In Pennsylvania, the notice is one of three months, in all cases.* 19. Where a tenancy is for a short period — as for a quarter, a month, or a week — the length of the notice must be regulated by the letting ; as a month's notice for a month's letting, and a week's notice for a week's letting.' 20. Distress for rent has been abolished in the State of New York. 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 sufficiency of goods and chattels whereon to distrain, such re-entry may now 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, Ms heirs, executors, administrators, or assigns ; and this, notwith- standing there be a sufficiency of goods and chattels to satisfy the rent, provided the same were taken in distress." 21. The mode of re-entry above provided, by giving a notice of fifteen days, does not repefi that under the Revised Statutes ; the former is merely an additional mode.' 22. A tenant or under tenant, or his assigns or legal representa- tives, may be removed from any premises occupied by him, by any 1 4 Johnson, 150 ; 4 Cowen, 349 ; 11 Wen- dell, G19 ; 23 Id., 616. 2 Amended Constitution of New York, Ar- ticle l.M 14. IS. » 2R. S. (3d ed.) 30, §5 7-9; 11 Wendell, C16. * i Rent's Commentaries, (2d ed.) Ill- 113; I Johnson, 322; 8 Cowen, 13. » 4 Kent's Commentaries, (2d ed.) 113. • Laws of l!*J6, chap. 274. ' 2 Barbour's S. C. Rep., 316. 884 NEW clerk's assistant. Judge of the County Courts of the county, or by any Justice of the Peace of the city or town where such premises are situated ; or by any Mayor or Recorder of the city where such premises are situated; or in the city of New York, by the Mayor, Recorder, any Justice of the Marine Court, or any one of the Justices of the Justices' Court of the city of New York; where such tenant holds over and continues in possession of the premises, or any part thereof, after the expira- tion of his term, without permission of the landlord ; or where the tenant holds over without permission after default in the payment of rent, and a demand has been made of the rent, or three days' notice in writing served on the tenant, requiring payment of the rent or possession of the premises ; or where the tenant or lessee of a term of three years, or less, has taken the benefit of any insolvent act, or been discharged from liability to imprisonment ; or where one holds over and continues in possession of any real estate which has been sold under an execution against him, after a title under such sale has been perfected.' 23. Rent previously due may be collected by action, after the sum- mary removal of the tenant for non-payment of rent." 24. If any tenant, being in arrear for rent, desert the demised premises, and leave the same unoccupied and uncultivated, any Jus- tice of the Peace of the county may, at the request of the landlord, and upon due proof that the premises have been so deserted, go upon and view the premises ; and upon being satisfied, upon such view, that the premises have been so deserted, he shall affix a notice in writing upon a conspicuous part of the premises, requiring the tenant to appear, &c., as in the form hereinafter given, at some time to be specified in the notice, not less than five nor more than twenty days after the date thereof.' 25. Where any forcible entry is made into any lands or posses- sions: or where the' entry is made in a peaceable manner, and the possession held by force, the person so forcibly put out, or so forcibly holden out, of possession, and the guardian of any such person being a minor, may be restored to such possession, by making complaint to a Justice of the Supreme Court, or County Judge ; any Mayor, Re- corder, or Alderman, of any city ; or, in the city of New York, in addition to the officers already named, to any Justice of the Superior, or Marine Court, or any Justice.* 26. An affidavit made by an agent, under the statute authorizing summary proceedings to recover possession of land, must state the • 2 R. S. (3a ed.) 603, 5 28 ; Laws of 1849, chap. 193 : 6 Cowen, 448 ; 8 Id., 68 ; 5 Wen- dell, 281 : 9 Id., 227; 11 Id., 616; 15 Id., 226; 17 Id., 464; 19 Id., 103; 21 Id., 687; 1 Hill, 612 ; 6 Id., 314, 607 ; 1 Denio, 190. 9 SDenlo, 452. s 2 R. S. (33 ed.) 603, 5§ 24, £5. * 2 R. S. (3d ed.) 699, 5 1, et seq. ; 8 John- son, 464; 11 Id., 504; 13 Id., 40; 8 Cowen, 226; 4 Wendell, 213; 9 Id., 50; 11 Id., 157; 1 Hall's Superior Court Rep., 240. LAITDLOBD AND TENANT. 385 fact of the agency in positive terms; it will not answer merely to describe the person as agent* FORMS. § Vll. Landlord's Certificate of Renting. This is to certify, that I have, this , day of > 18 , let and rented unto C. D. my house and lot, known as number , in street, in the of , with the appurtenances, and the sole and uninterrupted use and occupation thereof, for one year, to commence the day of next, at the yearly rent of dollars, payable quarterly : [add, with aU taxes and as- sessments, where the same are to he paid by the tenanti\ § 712. Tenant's Agreement. This is to certify, that I have hired and taken from A. B. his house and lot, known as number , in street, in the of , with the appurtenances, for the term of one year, to commence the day of next, at the yearly rent of dollars, payable quarterly. [Insert the clause in relation to taxes, if necessary. '\ And I do hereby promise to make punctual payment of the rent in manner aforesaid, except in case the premises become untenantable from fire or any other cause, when the rent is to cease: And I do further promise to quit and surrender the premises, at the expiration of the term, in as good state and condition as reasonable- use and wear thereof will permit, damages by the elements excepted.* Given under my hand and seal, the day of , 18 . In presence of ) C. D. [l. s.] G. H. f § 713. Security for Bent. In consideration of the letting of the premises above described, and for the sum of one dollar, I do hereby become surety for the punctual payment of the rent, and performance of the covenants, in the abov9 < 4 Denio, 71. 25 386 NEW clerk's assistant, ', ■written agreement mentioned, to be paid and performed by C. D., as therein specified ; and if any default shall at any time be made therein, I do hereby promise and agree to pay unto the landlord in said agreement named, the said rent, or any arrears thereof that may be due, and fully satisfy the conditions of the said agreement, and all damages that may accrue by reason of the non-fulfilment thereof without requiring notice or proof of demand being made. Given under my hand and seal, the day of , 18 . E. F. [l. b.] § 714. Landlord's Certificate, where Tenant is Not to Underlet, or Occupy for any Business deemed Extra Hazardous, This is to certify, that I, C. D., have let and rented unto A. B., the premises known as number , in street, in the of , for the term of one year from the first day of next, at the yearly rent of dollars, payable quarterly.* The premises are not to be used or occupied for any business deemed extra-hazardous on account of fire ; nor shall the same, or any part thereof, be let or underlet, except with the consent of the landlord, in writing, under the penalty of forfeiture and damages. Given under my hand, this day of , 18 . CD. § '115. Tenant's Agreement in Foregoing Case. This is to certify, &c., \as in § 712 to the *, and then add:'\ And I do hereby engage not to let or underlet, the whole or any part of the said premises, or to occupy the same in any business deemed extra-hazardous on account of fire, without the written consent of the landlord, under the penalty of forfeiture and damages. Given, &c., [as m § 712.] § 716. Tenant's Agreement, Embracing a Pledge of his Property, as Security. Tills is to certify, that I, A. B., have hired and taken from C. D., the premises known as number , in street, &c., [as in § 712 to the *, and then add/] And I do hereby mortgage and pledge all the personal property, of what kind soever, which I shall at any time have on said premises, and whether the same be exempt by law from sale under execution or not, to the faithful performance LANDLORD AND TENANT. 387 of tbese covenants ; hereby authorizing the said C. D., or Ms assigns, ■without legal process, to seize upon and sell the same, in case of any failure on my part to perform the said covenants, or any or either of them, — and out of the proceeds of such sale to pay and discharge all arrearages of rent and expenses, and to return the surplus moneys, if any there be, to me or my representatives. Given under my hand and seal, this day of ,18. A. B. [l. 8.J § 7l7. Landlord's Certificate, under the Exemption Act o/1842. This is to certify, i&c, \as in § '7r4, to the *, and then add:'\ The above lease is upon the further condition, that the said tenant shall make punctual payment of the rent» in manner aforesaid, and shall quit and surrender the premises, at the expiration of the said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted, and shall not assign, let or underlet, the whole or any part of the said premises, or occupy the same for any business deemed extra-hazardous on account of fire, without the written consent of the landlord, xmder the penalty of forfeiture and damages. And the said tenant, for the consideration aforesaid, has waived the benefit of the exemption specified in the first section of the act entitled " An Act to extend the exemption of household furniture and working tools from distress for rent and sale under execution," passed April 11th, 1842, and has agreed that the property therebj exempted shall be liable, and also that all property liable to distress for rent shall be so liable, whether on or off the said premises, wher»- Boever and whensoever the same may be found. Given, &c., \as in § 714.] §718. Tenant's Agreement, Waiving the Benefit of the Exemption Act of 1842. This is to certify, &c., [as ?n § 712 to the *, and tlien add:"] And I do hereby promise, in consideration thereof, to make punctual pay- ment of the rent, in manner aforesaid, and quit and surrender the premises at the expiration of the said term, in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted, and not to assign, let or underlet, the whole or any part of the said premises, or occupy the same for any business deemed extra-hazardous on account of tire, without the written con- sent of the landlord, under the penalty of forfeiture and damages S88 NEW clerk's assistant. And I do hereby, for the consideration aforesaid, waive the benefit of the exemption specified in the first section of the act entitled " An Act to extend the exemption of household furniture and working tools from distress for rent and sale under execution," passed April 11th, 1842, and agree that the property thereby exempted, shall be liable to distress for said rent ; and also, that aU property liable to distress for rent shall be so liable, whether on or off the said premises, wheresoever and whensoever the same may be foimd. Given, &c., [as m § 712.] § 719. Agreement for a Lease. This agreement, made the day of, &c., between A. B. of, (fee, and C. D., of, &c., witnesseth: That the said A. B. hereby agrees to demise and let to the said C. D., by indenture, to be executed on flie day of next, the dwelling-house and lot now occu- pied by the said A. B., in the village of , to have and to hold the same unto the said C. D., his executors, administrators and assigns, from the first day of next, for and during the term of five years, at or under the yearly rent of one hundred dol- lars, payable quarterly, cleaf of all taxes and assessments : in which lease there shall be contained covenants on the part of the said C. D., his executors, &c., to pay rent, (except in case the premises are deistroyed by fire, ihe rent is to cease until they are re-built,) and all taxes a,nd assessments; to keep the premises in good repair, (dama- ges by fire excepted ;) not to carry on any ofiensive business upon wie same ; and to deliver up peaceable possession of the said premises at the expiration of the terih aforesaid: and the said lease shall also contain covenants on the part of the said A. B., his heirs and assigns, for quiet enjoyment; to renew said lease at the expiration of the term aforesaid, at the request of the said C. D., to be made fifteen days prior to the time of such expiration, for a further term of five years ; and that, in case the said premises shall be destroyed by fire, the said A. B. w31 forthwith proceed to re-buUd the same. And it is agreed between the aforesaid parties, that the costs and diarges of making, executing and recording, the said lease, and du- plicate thereof, shall be equally borne and divided between them. In witness whereof, the said parties have hereimto set their hands and seals, the day and year first above written. Sealed and delivered ) A. B. [l. a] in presence of >• C. D. [i. s.1 G.H. ) LANSLOED AITD TENANT. § 720. Zease and Chattel Mortgage. This agreement, made the day of , 18 , between A- B., of, &c., of the first part, and 0. D., of, &c., of the second part» witnesseth : That the said A. B. has agreed to let, and hereby does let, and the said C. D. has agreed to take, and hereby does take, all the premises known as number 34V, streef» in the city of , for one year commencing the day of ,18 , and ending the day of , 18 , at twelve o'clock, noon, of that day, at the annual rent of dollars, payable in equal quar- terly payments. And the said C. D. hereby covenants and agrees to pay the rent in manner aforesaid; to permit the said A. B., or his agent, to pnter the said premises at all reasonable hours in the day time, to make sijch repairs and alterations as may be necessary for the preservation thereof, and to esdiibit the same to persons wishing to rent, after the day of ,18 , and put notices " To Let," on the walls thereof ; to quit and surrender the said premises, at the expiration of the said term, in as good state and condition as reason- able use and wear thereof will permit, damages by the elements excepted ; and that he wiU not assign, let or underlet, the whole or any part of the said premises, or occupy the same for any business deemed extra-hazardous, without the written consent of tiie said A- B., or his agent And the said C. D., in consideration of the premises, and of the sum of one dollar to him paid by the said A. B., doth hereby grant, bargain and sell, unto the said A. B., all and singular the following goods and chattels, [or, the goods and chattels, mentioned in the schedule hereto annexed :] viz : [describe property if there be no schedule/] To have and to hold the said goods and chattels to the said A. B., forever; upon the condition, hdwever, that if the said C. D. shall well and truly pay, or cause to be paid, unto the said A. B.j the rent above reserved, punctually, at the several times when the same shall become due, as aforesaid, then the said bargain and sale shall be null and void. But in case default shall be made in the pay- ment of the said rent> or any part thereof, at the several times men- tioned as aforesaid, and the same remain unpaid five days after the same becomes due and payable, then it shall be lawful for the said A. B. to take possession of the said goods and chattels, wherever the same may be found, and to sell the same at public sale, (first giving three days' notice of the time and place of such sale,) or so much thereof as may be necessary to pay the rent due, and the balance of rent for the whole unexpired term, whether due or not due, and all costs and expenses that may have accrued on account thereof, rendering the remaining goods and chattels, and the surplus money from said sale, if any there shall be, unto the said C. D., or his representatives : 390 HEW clerk's assistant. And it is further agreed between the said parties to these presents, that if at any time default shall be made in the payment of the said rent, or any part thereof, at the times above specified, the said A. B. shall and may re-enter the said premises, and remove all persons therefrom ; and the said C. D. hereby expressly waives the service of any notice in writing of the intention to re-enter, or any legal process 6r proceeding to put the said A. B. in possession ; and, also, that in case the said C. D. shall sell, assign or dispose of, or attempt to sell, assign, or otherwise dispose of, the goods and chattels aforesaid, or shall attempt to remove the same from the of , it shall and may be lawful for the said A. B. to take. possession of the same, and retain them in his possession until the said rent shall be pdd, or untU default in the payment thereof But until default be made in the payment of the said rent, the said goods and chattels (unless the said G. D. shall sell, or attempt to sell, or remove the same, as afore- said,) shall remain in the possession of the said C. D.' In witness, &c., [as in § 719.] § 721. Agreement between a Home-Keeper and Lodger. This agreement, by and between A. B., of, (fcc, and C. D., of, &o., made the day of, &c., witnesseth : That the said C. D.,'in consideration of the agreement hereinafter contained, to be performed by A. B., has let to the said A. B. the entire first floor, and one room in the attic story, or garret, with the use of the offices, and of the yard for drying linen, or beating carpets or clothes, being part of the dwelling-house now occupied by the said 0. D., situate in the village of , \or, known as number in street, in the city of Albany,] for and during the term of two years from the day of the date hereof ; to hold to the said A. B., for the said term of two years, at the yearly rent of dollars, payable quarterly to the said C. D. In consideration of the premises, A. B. agrees to pay to the said C. D., the aforesaid yearly rent of dollars, at the times above Umited for the payment thereof ; and at the end of the said term, or in case of any default in the payment, to yield and dehver up to the said 0. D., or his assigns, on request, the quiet and peace- able possession of the premises above described, and leave them in as good condition and repair as they shall be on his taking possession thereof, reasonable wear excepted. In witness, &c., [as in § 7X9.] ' A lease, containing a mortgage of personal property, or a copy thereof, should be filed B the same manner as chattel mortgages, in order to have the lieA valid against third persons. LANDLORD AND TENANT. 891 § 722. Indenture of Lease. This indenture, made the day of , in the year of our Lord one thousand eight hundred and , between A. B., of, &c., of the first part, and C. D., of, &c., of the second part, wit- nesseth : That the said party of the first part, for and in considc- falion of the rents, covenants and agi-eements, hereinafter mentioned, reserved and contained, on the part and behalf of the party of the second part, his executors, administrators and assigns, to be paid, kept and performed, hath granted, demised, and to farm lettcn, and by these presents doth grant, demise, and to farni let, unto the said party of the second part, his executors, administrators and assigns, all [give descriiHion (^premises:'] To have and to hold the said above mentioned and described premises, with the appm-tenances, unto the said party of the second part, his executors, administrators and assigns, from the day of , one thousand eight hundred and , * for and during, and until the full end and term of, ten years thence next ensuing, and fully to be complete and ended, \or, for and during the natural life of E. R ;] yielding and paying there- for, unto the said party of the first part, his heirs or assigns, yearly, and every year, during the said term hereby granted, the yearly rent or sum of dollars, lawful money of the United States of America, in equal quarter \or, half ] yearly payments, to wit : on the first day of May, August, November, and February, in each and every year during the said term: Provided always, nevertheless, that if the yearly rent above reserved, or any part thereof, shall be behind or unpaid, on any day of payment whereon the same ought to be paid, as aforesaid ; or if default shall be made in any of the covenants herein contained, on the part and behalf of the said party of the second part, his executors, administrators and assigns, to be paid, kept and performed, then and from thenceforth it shall and may be lawful for the said party of the first part, his heirs or assigns,- into' and upon the said demised premises, and every part thereof, wholly to re-enter, and the same to have again, re-possess and enjoy, as in his or their first and former estate, any thing hereinbefore contained to the contrary thereof in any wise notwithstanding. And the said party of the second part, for himself and his heirs, executors and administrators, doth covenant and ag'ree, to and with the said party of the first part, his heirs and assigns, by these presents, that the said party of the second part, his executors, administrators or assigns, shall and will, yearly, and every year, during the term hereby granted, well and truly pay, or cause to be paid, unto the said party of the first part, his heirs or assigns, the said yearly rent above reserved, on the days, and in the manner, limited and pre- scribed, as aforesaid, for the payment thereof, without any deduction, fraud, or delay, according to the true intent and meaning of these presents: [if necessary, insert: and that the said party of the second 398 NEW clerk's assistant. part, his executors, admiidstrators, or assigns, shall and -will, at their own proper costs and charges, bear, pay and discharge, all such taxes, duties and assessments whatsoever, as shall or may, during the said term hereby granted, be chai-ged, assessed, or imposed upon the said described premises :] and that on the last day of the said term, or other sooner determination of the estate hereby granted, the said party of the second part, his executors, administrators, or assigns, shall and will peaceably and quietly leare, surrender and yield up, unto the said party of the first part, his heirs or assigns, all and eingidar the said demised premises. And the said party of the first part, for himself, his heirs and assigns, doth covenant and agree, by these presents, that the said party of the second part, his executors, administrators, or asagns, paying the said yearly rent above reserved, and performing the covenants and agreements aforesaid, on his and their part, the said party of the second part, his executors, adminis- trators and assigns, shall and may at all times during the said term hereby granted, peaceably and quietly have, hold and enjoy, the said demised premises, without any manner of let, suit, trouble or hindrance, of or from the said party of the first part, his heirs or assigns, or any other person or persons whomsoever. In witness, &c., \_as m § 719.] § 723. Farming Zease on Shares, with Agreement to Renew. This indenture made, &c., [as in § 722 to the *, and then add:'\ for and during the term of three years next ensuing, to be fuUy com- plete and ended : To have and to hold the said demised premises, unto ihe party of the second part, his heirs, executors and adminis- trators, for his and their sole and proper use and benefit, for and during the term aforesaid, together with all the tenements and he- reditaments thereunto appertaining, and all the stock and farming utensils, of every name and nature, now being in or upon the same, belonging to the said party of the first part. In consideralion whereof, the said party of the second part hereby covenants and agTees, to and with the party of the first part, that be win occupy, tin, and in all respects cultivate the premises above men- tioned, during the term aforesaid, in a husbandlike manner, and according to the usual course of husbandry practiced in the neigh- borhood; that he will not commit any waste or damage, or sufiFer any to be done ; that he will keep the fences and buildings on the said premises in good repair, reasonable wear thereof and damages by the elements excepted ; and that he will deliver to the said party of the first part, his heirs, executors or administrators, or to his or their order, one equal half of all the proceeds and crops produced on the LANDLORD AND TENANT. 393 said farm and premises aforesaid, of every name, Itind and descrip- tion, — to be divided on the said premises, in the mow, stack, or half bushel, according to the usual course and custom of making such divisions in the neighborhood, and in a seasonable time after such crops shall have been gathered and harvested. It is further understood and agreed between the aforesaid parties, that the party of the first part shall find one equal half of all seed or seeds, necessary to be sown on said premises, and pay all taxes and assessments upon the same ; that the party of the second part is to do, or cause to be done, all necessary work and labor in and about the cultivation of the said premises ; that he is to have fuU permission to inclose, pasture, or till and cultivate, the said premises, so far as the same may be done without injury to the reversion, and to cut all necessary timber for firewood, farming purposes, and repaiting fences ; and that he is to give up and yield peaceable possession of the said premises, at the expiration of his said term ; \vf the lease is executed by a person having only a life estate, insert: and that the said term shall be determined and ended by the death of the party of the first part, at any time within the said period of three years.] And the said party of the first part, in consideration of the premises, and of the sum of one dollar to him in hand paid by the party of the second part, hereby promises and agrees, to and with the party of the second part, to make and execute imto him a new lease, similar in all respects to this, and to run for the same period of three years, of the premises aforesaid, upon the due reqitest and application of the said party of the second part, made within twenty days prior to the expiration of the aforesaid term granted by these presents. In witness, &c., \as in § 719.] § 724. Surrender of a Term of Years to the Person having th* Eeversioh. This indenture, made the day of , between A. B., of, &c., of the one part, and C. D., of, &c., of the other part : Where- as, the said C. D., by his indenture of lease, bearing date, &c., did demise and to farm let, ■ E. F. [l. s.l A. M. ) I approve of this bond as the security for the appeal therein men- tioned. S. T., Justice. § 755. Notice to the Justice of the Appeal. To S. T., Esq., Justice of the Peace : Sir : I have appealed, and do hereby appeal, to the County Court of the county of , from your proceedings at the instance of A. B., by which he has been put in possession of the premises lately occupied by me, in the town of , in the county of , under color of the provisions of the statute authorizing summary pro- ceedings to recover possession of lands in certain cases : And of this you will take notice, and return the proceedings had before you to the said court, within ten days. Dated the day of , 18 . Yours, &c., C. D. 8 756. Notice to the Landlord of the Appeal. To A. B.: Sir: You wUl take notice, that 0. D., upon giving the reqviired security, has tliis 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 situate in , in said county, and demised by you to the said C. D., for the term of years. Dated this day of , 18 . Yours, (fee, S. T., Justice. *>8 SEW clerk's assistant. § 757. Qomplaint for Forcible Entry, and Affidavit^ County, ss: The complaint of A. B., of , in said county, to G. H., Esq., County Judge of said county, showeth : That C. D., of , afore- said, on the day of , in the year , at the town of , in the county of , aforesaid, did unlawfully make a forcible entry into the lands and possessions of this complainant, to wit: the dwelling-house and appurtenances of this complainant there situate, bounded, &o., [insert bovndaries;^ ^nd then and there did violently, forcibly, and unlawfully, and with strong hand, eject and expel the complainant from his said lands and possessions, wherein thfe complainant had, at the time aforesaid, an estate of freehold, [or, sack other estate, jts ike case may 6e,] then and stiU subsisting ; and that the said G. D. still doth hold and detain the said lands and pos- sessions from the said A. B., unlawfully, forcibly, and with strong hajad, and agaiSast the form of the statute in such case made and pro- vided. Dated this day of , in the year A.R Coimty, ss: A. B., of , in said county, being duly sworn, says, that the facts and circumstances stated and set forth in the foregoing com- plaint, by him sighed, are true. Sworn, &c., [as in § 731.] A. B. § 758. Precept to Summon the Jiiry bf Inquiry. County, ss : To the Sheriff, or any Constable, of the County of : In the name of the People of the State of New York, you are here- by commanded to cause to come before me, at the house of , in the town of , ia said county, on the day of in- stant, at o'clock in the noon, twenty-four good and lawful inhabitants of the said comity, duly qualified by law to serve as jurors, J The complaint may be made by any party in the actual and peaceful possession oriands M the time a forfcibl6 entry ie made, or in the constructive possession where there ia a forci- Ure holding out. Vpon receiving the complaint, the Judge issues the precept to summon a jury, to the Sheriff or a Constable of the county, and at the same time notifies the party Isgamst whom the complaint is made, of the time and place of trial ; which notice is to be served in the same manner as directed in the note to § 732. At the time appointed for tlie return of the precept, the Judge administers an oath to the persons returned summoned, who appear, not bemg less than thirteen, nor more than twenty-three, well and truly to in- quire mto the matters complained of, and a true inquisition thereon to make. The jury then proceed to inquire into the matter, and hear the testimony ; the inquisition ia to be made and signed before the Judge, and delivered to Iiim. LANDLORD AND TENANT. 409 to inquire upon their oaths for the said people, of a certain forcible entry and detainer unlawfully made by C. D., as is said, into the dwelling-house of one A. B., in the toivn of , in said county, against the form of the statute in such case made and provided. And have you then there this precept Givea imder my hand, the day of , in the year G. H., County Judge. § 769. Notice to the Person Complained of. To CD.: On the complaint of A. B., of the town of , in the county of , made to me, the undersigned, G. H., County Judge of said county, that you did unlawfully make a forcible entry into the dwelling-house of the said A. B., situate in said town, and bounded, [insert description,'] and then and there did violently, forcibly, un- lawfully, and with strong hand, eject and expel the said A. B. from his said dwelling-house, and do still unlawfully and forcibly, and with strong hand, detain and hold the said dwelling-house, and the posses- sion thereof, from the said A. B. : I have this day issued my precept, directed to the Sheriff, or any Constable, of said county, commanding him to cause to come before me, at the house of , in the town of , in said county, on the day of instant, at o'clock in the noon, twenty-four good and lawful inhabitants of the said county, duly qualified by law to serve as jurors, to inquire upon their oaths of the said forcible entry and detainer ; of aU which you are notified. Dated this day of , 18 . G. H., County Judga § 760. Affidavit of Service of Preceding Notice. County, ss: R R, of said county, being duly sworn, says, that on the day of instant, he served a notice, of which the annexed is a copy, on C. D., by delivering the same to him personally, [or, by delivering the same on the premises in question, to A. D., the son of the said C. D., of the age of twenty years and upwards, because the said C. D. could not be found ; or, by afiSxing the same on the front door of the house in question, there being no person on the premises ; or, by afiixing the same on the post at the principal entrance of said 410 NEW clerk's assistant. premises, being a public and suitable place, and there being no house or person on said premises.] Sworn, Ac, [as in § 731.] R- F. § 761. Inquisition of the Jury. State of New- York, )^. County, j An inquisition taken at the house of , in the town of , in the county of , on the day of , in the year , by the oaths and affirmations of E. F., &c., [insert the names of the jurors sworn, or by whom the in- quisition is signed,'] inhabitants of said county, duly qualified to serve as jurors, before Gr. H., Esq., County Judge of said county, who say upon their oaths and afiBrmations aforesaid, that A. B., of the town of , aforesaid, long since had an estate of free- hold, [or, as the estate may be;] in the dwelling-house, with the ap- purtenances, situated in the town of , aforesaid, and bounded, (fee, [as in complaint;] and that the said A. B. was long since lawfully and peaceably possessed thereof; and that his said es- tate and possession so subsisted and continued, until C. D., of the same place, on the day of , &c., did forcibly and unlawfully, and with strong hand, enter into the said land and premises, and expel him, the said A. B., therefrom ; and the said A. B., so expelled from the said > dwelling-house, with the appurtenances aforesaid, from the said day of, (fee, until the day of the taking of this inquisition, unlawfully and forcibly, and with strong hand, did keep out, and doth yet keep out, to the great disturbance of the people of the State of New York, and contrary to the form of the statute in such case made ; and that the said estate of the said A. B. still subsists therein.. And we, the jurors aforesaid, whose names are hereto set, do, on the evidence produced before us, find the inquisition, aforesaid, true. E. ¥., &c., &c. § 762. Venire for Petit Jury. Coimty, ss: To the Sheriff, or any Constable, of said County, greeting: The People of the State of New York command you to summon, personally, twelve good and lawful men of the town of , ' If the inquisition is not traversed witliin twenty-four liours, the Judge issues his warrant to make restitution immediately. The party complained against may, however, traverse the inquisition, in writing, (§ 739,) denying the forcible entry or forcible holding out, or al- LANDLORD AND TENANT. 4H in said county, duly qualified to serve as jurors, and not exempt from serving on juries in Coui-ts of Eeoord, and in no wise of kin to A. B., or to C. D., to come before G. H., Esq., County Judge of said county, at the house of , in the town of , afore- said, on the _ day of instant, to make a jury of the county, upon their oaths to try a certain traverse of an inquisition found upon the complaint of A. B., and now pending before the said Judge, against C. D., of county, for a certain forcible and unlawful entry made by the said C. D., into the dwelling-house of the said A. B., in the town of , in said county, and for the forcible and unlawful detainer thereof, agaiirst the form of the statute in such ease made and provided; and that you make a list of the persons summoned, certify and annex the same to this precept, and make return hereof to me. Given, &c., [as in § 758.] § 763. Warrant to the Sheriff, or Constable, to make Restitution} County, ss: The People of the State of New York, to the Sherifl) or any Consta- ble, of said County, greeting: Whereas, A. B., of , in said county, did, on the day of last, make complaint, duly verified by oath, to the under- signed, G. H., County Judge of said county, that C. D., of , aforesaid, on the day of, &c., [recite the complaint, and the subsequent proceedings, and then add/] You are, therefore, hereby commanded to go to the said premises, taking with you the power of the county, if necessary, and cause the legiog that he or his ancestors, or those whose interest he claims, have been in quiet pos- session of the premises, for three whole years next before such inquisition found, and that his interest therein is not ended or determined ; and if the traverser pay to the Jud^e the fees of summoning ajury to try such traverse, and thejurors' and Judge's faes on such trial all further proceedings on the complaint will be stayed until the traverse be tried. Any person may make aiiidavit before the Judge, that the party complained of is his tenant, under a valid subsisting demise, and traverse the inquisition in like manner. Upon such traverse be- ing made, the Judge issues his precept to summon twelve jurors to try the same, at a time not less than four, nor more than eight cays thereafter. Twenty-four hours' notice to % juror is sufficient. The jurors are to be impanneled and sworn, as in civil actions. On the trial, the title is not to be investigated ; except so far as the complainant is required to show the actual or constructive possession required by the statute ; and the tenant may show tlireo years' possession, as above mentioned, which showing will be a complete bar to ihe prosecu- tion. If the Jury find for the complainant, the Judge issues a warrant to make restitution, unless the proceedings be removed to the Supreme Court, by certiorari, which may be allow- ed by a Justice of the Supreme Court, or other oflicer authorized to perform the duties of such Justice at chambers. ■ All the proceedings are to be recited in the warrant of restitution, and the Judge is requir- ed, in the same or in a separate precept, to direct the costs and expenses to be levied and collected, in the same manner as on judgments in Justices' Courts, in personal actions. This form of warrant may be adapted to either case, whether the origmal inquisition be traversed, or otherwise. 412 NEW olebk's assistant. said A. B. to be restored and put in full possession of the said dwell- ing-house and premises, according to his estate and right therein before the said entry, in pursuance of the statute in such case made and provided. And you are also commanded to levy the sum of $ , of the goods and chattels of the said C. D., (excepting such goods and chattels as are by law exempt from execution,) and to bring the money before me within thirty days from the date hereof, to render to the said A. B. ; and if no goods or chattels can be found, or not sufficient to satisfy the said sum of money, you are commanded to take the body of the said 0. D., and convey him to the common jail of the said county, there to remain until the said sum of money, and your fees for collecting the same, shall be satisfied and paid. Given, &c., [as in § 758.] § 764. , Complaint for a Forcible Detainer, or Holding Out after u Peaceable Entry, and Affidavit. County, ss: The complaint of A. B., of , in said county, to G. H., Esq., County Judge of said county, showeth; That the said A. B., on the day of , in the year , and long before that day, had an estate of freehold, \or, a term of years, as the case may 5e,] in all that Certain lot of land, with the house and other buildings thereon, and the appurtenances, situate in the town of ' , in said county, bounded as follows: \insert description^ ; and which said estate of freehold \or, which said term of years] is still subsisting; And that C. D., of the town of , aforesaid, on the day of , aforesaid, while the said A. B. was in the possession of the said premises, entered thereon in a peace- able manner, and thenceforth by force, and with strong hand, hath held and kept, and still holds and keeps, the said A. B., out of the possession thereof, contrary to the form of the statute in such case made and provided. County, ss: A. B., of , in said county, bemg duly Sworn, says, &C., [as in the affidavit to § 757, to the ervd.'\ CHAPTER XXVII. LUNATICS. PRACTICAL REMAREB. 1. No patient can be admitted into the State Lunatic Asylum, at Utica, except upon an order of some Court, Justice, or Judge, Tvitli- Qut lodging with the Superintendent, — first, a request under the hand of the person by whose direction he is sent, stating his age and place of nativity, if known ; his christian and surname, place of resi- dence, occupation, and degree of relationship, or other circumstances of connection between him and the person maldng the request, — and second, a certificate, dated within two months, under oath, signed by two respectable physicians, of the fact of his being insane. Each person signing such request or certificate, must annex to his name his profession or occupation, and the town, county, and state, of his residence, unless these facts appear upon the face of the document' 2. When a person in indigent circumstances, not a pauper, becomes insane, application may be made in his behalf to the County Judge of the county in which he resides ; and said Judge is required to give reasonable notice to one of the superintendents of the poor of the county, or overseer of the town, to be charged with the support of the lunatic, and to call two respectable physicians, and other cre- dible witnesses, and investigate the facts of the case, either with or without a jury, at his discretion. If the Judge is satisfied of the insanity and indigence of the person, and that he became so within one year previous, he will give his certificate, which, if authenticated by the County Clerk and seal of the County Court, will admit such person into the Asylum, to be supported there at the expense of his county, until he be restored to soundness of mind, if effected in two • Laws of 1842, chap. 13B, 5 19. 414 KEW clerk's assistant. years. On granting the certificate the Judge may, in his discretion, require the friends of the patient to give security to the Superin- tendent of the Poor of the county to remove the patient from the Asylum at the end of two years, in case he does not recover.' 3. The expenses of a lunatic sent to tli£ Asylum in indigent cir- cumstances, but not a "pauper," or "furiously mad," cannot be charged to his town by the county." FORMS. § 765. Bequest to Superintendent for the Admission of a Patient To C. R., Esq., Superintendent of the State Lunatic Asylum at Utica: I hereby request that C. D., [give the name of the patient infull,^ my son, [or, lately in my employ : or, as the case may 6e,] who re- sides in the town of , in the county of , and State of , may be admitted as a patient into the said asylum. Said C. D. was born in the town [or, parish] of , in the county of , and State [or, kingdom; or, province,] of : his age is years, and his occupation a clerk, [or, as the case may be.] A. B., Merchant, of the town of , in the county of , and State of § 766. Certificate of Physicians to Accompany the Bequest. In the matter of ) C. D., a lunatic: ) We, the undersigned physicians, residing in the town of , in the county of , and State of New York, do hereby certify, that we have carefully examined into the mental state and condition of C. D., above named ; and tha,t, in our opinion, formed upon such examination, the said C. D. is insane. Given under our hands, tliis day of , 18 . L. B. S. W. 1 Laws of 1842, chap. 135, 5 26 j Laws of I s 7 Uill, 171. 1800, chap. 282. j LUNATICS. 4ia County, ss: L. B. and S. W., of said county, being by me severally swom, depose and say, and each for himself deposes and says, that the facts stated and set forth in the above certificate, by him signed, are true. Sworn to, this day of , ) L. B. 18 , before mc, J S. W. H. T. C, Justice of the Peace. § 767. Application to County Judge, and Affidavit. To the Hon. J. P. H., County Judge of the County of : The petition of A. B., of the town of , in said county, respectfully showeth : That C. D., now a resident of the said town, is, and for the terra of years last past, has been, a lunatic; that he is now in the care and custody of E. R, at the town afore- said ; that he is in indigent circumstances, and has no property in his own possession, or held by any person in trust for him, sufficient for his support, lor, for the support of himself and family,] under the visitation of insanity aforesaid : Your petitioner Iherefore prays, that an examination and investigation may be had in the premises, pursu- ant to the provisions of the act entitled " An Act to organize the State Lunatic Asylum, and more effectually to provide for the care, main- tenance, aTid recovery of the insane," passed April 7, ] 842, and tho act entitled "An Act in relation to the State Lunatic Asylum," passed AprU 10, 1850. A, B. County, ss: A. B., of said county, being duly sworn, says, that the facts and circumstances stated and set forth in the foregoing petition, by Mm Hgned, are true. Sworn, &e., [as in § 766.] A. B. § 768. Order of Judge on the Foregoing Petition. In the matter of C. D., ) an alledged indigent lunatic: j Upon the petition of A. B., of the town of , in the county of , herein presented to me, and duly verified, it is ordered : That J. T. P. and Di D., two respectable physicians of the said county, be hereby designated and appointed, pursuant to the provis- ions of the act entitled, &c., [as in § 767,] to examine the said C. D. in respect to his alledged insanit)', within days after they shall be respectively served with a copy of this order, certified by me ; and that they appear before me at my office in , on tlio *16 NEW clerk's assistant. day of instant, [or, next,] at o'clock in the noon, and certify their respective opinions in relation thereto; and that, at the time and place aforesaid, other witnesses be exam- ined touching the mental condition and peeuniary circumstances of the said C. D. J. P. H., County Judge of the county of § 769. Subpoena to Witness. County, ss: To E.'F., 0. P., &c., &c., of said County, greeting: You, and each of you, are hereby commanded, in the name of the people of the State of New York, to appear before me, at my office in , on the day of instant, \or, next,] at o'clock in the noon, to testify what you, or either of you, may know, touching the mental condition and pecuniary cir- cumstances of C. D., now of the town of , in said county. Given under my hand, at , this day of , 18 . J. P. H., County Judge, &c. § 770. Notice to Superintendent or Overseer. To E. F., one of the Superintendents of the Poor of the County of [or, an overseer of the poor of the town of in the County of .] Sir: You will please take notice that an apphcation has been made to me in behalf of C. D., of in said county, an aUedged indigent lunatic, prayiag for an examination and investigation under the act entitled "An Act to organize the State Lunatic Asylum, &c.," passed April 7, 1842, and the act entitled "An Act in relation to the State Lunatic Asylum," passed April 10, l'850; and that a hear- ing upon the said application wiU be had at my office in the of , on the day of , instant, \or, next,] at ten o'clock in the forenoon of that day. Yours, &o., J. P. H., County Judg-e of said County of . § 771. Certificate of Physicians, and Affidavit. In the matter of C. D., ) an alledged indigent lunatic : J We do hereby certify, that in pursuance of the order of J. P. H., County Judge of the county of , made in the above entitled LUNATICS. 417 matter, and bearing date the day of , 18 , we have carefully examined into the mental state and condition of C. D above named, and particularly in reference to his alledged insanity"; and that, in our opinion, derivad from such examination, the said c! D. is a confirmed lunatic. Given under our hands, this day of , 18 . J. T. P. D. D. County, ss: J. T. P. and D. D., of said county, being by me severally sworn, depose and say, and each for himself deposes and says, that the facts stated and set forth in the foregoing certificate, by them signed, are true. J. T. P. Sworn, (fee, [as in § 766.] D. D. § 772. Certificate of Judge} In the matter of C. D., ] an aUedged indigent lunatic : J Application having been made to me, by A. B., of the town of , in the county of , for an examination into the mental state and condition, and alledged indigence, of C. D., of the said town of , under the provisions of the act entitled, &c, [as in § 767:] I thereupon appointed J. T. P. and D. D., two re- spectable physicians of the said county, to examine said C. D., who have appeared before me, and certified that the said C. D. is a con- firmed lunatic; and I have also taken the depositions of witnesses touching the indigence and lunacy of the said C. D. : Now, there- fore, I do hereby adjudge and certify, that it satisfactorily appears to me, from said certificate and depositions, that the said C. D. is a luna- tic, that he became such lunatic within one year prior to the date hereof, that he has no estate of any kind, either in possession, or held by any person in trust for him, suflBcient for his support, [or, for the support of himself and his family,] under the visitation of insanity as aforesaid. Given, &c., [(m m § 769.] J. P. H., County Judge, &c 1 The depositions taken before the Judges ghouid be reduced to writing, and entitled aa in h 772. The certificate of the physicians, and other papers, together with a report of the proceedings and the decision, are to be tiled by the Judge in the office of the County Olerk Be ia^iBO required ts report the facta to the Board of Supervisors. 27 CHAPTER XXVIIL MECHMICS' AND LABOREES^ LIEN. PRACTICAL REMARKS. 1. Any person who, by virtue of any contract with the owner or his agent, or any person who, in pursuance of any agreement with any such contractor, and in conformity with the terms of the contract ■with such owner or agent, performs any labor, or furnishes materials, in building, altering or repairing, any house or other building, or ap- purtenances, in the several cities of the State, and in the ■^'illages of Williamsburgh, Geneva, and Canandaigua, has a lien upon such house or building, and appurtenances, and upon the lot on which the same may stand, to the extent of the owner's interest therein ; but the ag- gregate of all the liens for labor and materials, in any case, is not to exceed the price stipulated to be paid therefor by the owner or his agent In order to perfect this lien, speciiications of the work to be performed, or materials to be furnished, stating the prices to be paid therefor, or a true copy of the contract, if there be any in writing, must be filed in the office of the Clerk of the county, and a notice thereof served on the owner, or his agent, within twenty days after making such contract, or commencing such labor, or furnishing such materials. The County Clerk enters in a book alphabetically, the names of the owners, and opposite to them the names of the contract- ors, or laborers, or other persons claiming a lien, and the lot of land on which the work is to be done, or materials furnished, and the time of filing the specification, or copy of the contract The book in which these entries are made, is called " The Mechanics' and Labor- ers' Docket" The hen thus created, takes effect from the time of the filing of the specification, or copy of the contract and continues in force for the space of one year thereafter. 2. In order to enforce this lien, the owner, contractor, laborer, or mechanics' and laborbrs' likn'. 419 person furnisb'ng materials, must serve a notice on the other party, personally, to appear and submit to an accounting and settlement, in the Court of Common Pleas of the city and county of New York, or in the County Court, or any Justice's Court of such county, (except in New York,) or in the Marine Court in the city of New York, as in the form hereinafter given. Within ten days after service of such notice, the owner, or his agent, is to be personally served with a bill of the particulars of the amount claimed to be due, and with a notice to produce a bUl of particulars of any offset which may be claimed, within ten days thereafter. If the contractor, laborer, or person fur- nishing materials, does not appear and produce his claim, in pursu- ance of the notice to be served, as aforesaid, he loses his lien. If the owner does not appear, his default may be entered, and a writ of inquiry issued to the Sheriff ; or, if in the Marine Court of the city of New York, or in a Justice's Court in any other city or county, the damages may be assessed, and judgment rendered, and execution issued thereupon, as in actions on contract. Where the parties ap- pear, issue must be joined on the claims made; notices of set-off and of trial, if necessary, be served ; and the same proceedings had as in actions on contract. 3. Within thirty days after labor has been performed, or materials furnished, the person claiming payment therefor must either deliver to the owner, or his agent, a statement in writing, signed by himself and the contractor, specifying how much is due, or take the neces- sary proceedings against the contractor, as above directed ; otherwise the lien will be lost 4. The owner is required to pay the amount agreed to be due by the statement of the laborer and contractor, or the judgment, if any be recovered ; which will be deemed a payment on the contract. If the owner neglect to pay the sum due, for ten days after service of the statement or of a transcript of the judgment, the Clerk of the county, on having filed with him a duplicate copy of the statement sigTied by the laborer, or person furnishing materials, and the con- tractor, as aforesaid, vrith an affidavit that the same is a true copy, or a transcript of the judgment, with an affidavit of demand of the amount due, of the owner or agent, and of the refusal or neglect to pay, may issue an execution against such owner, in the same form as upon a judgment recovered on contract, on the day of the attach- mg of such lien, reciting that such execution is issued pursuant to the tenth section of the act of 1844 ; which execution will be sub- ject to the jurisdiction and control of the court, as are also the liens and judgments docketed by virtue of the foregoing provisions. 5. Any person who shall furnish materials, or perform any labor, as above specified, may certify to the owner, or his agent, at any time previous to, or during the progress of the work, that he will discharge such owner, or his agent, from any liability on the lien ; and such 420 ' NEW glebe's assistabt. certificate, executed by the person in presence of a subscribing -wit- ness, will be conclusive in barring such person from any lien.' 6. There is a special lien law applicable to the county of Richmond only, which may be foimd in Volume III, of the Revised Stat"*"« (3d ed.) p. 111. FORMS. § 'I'IS. Notice to Owner or Agent, of Filing Specification. Sir : You will please to take notice, that I have this day filed in the office of the Clerk of the county of , a specification of work, [or, materials,] contracted to be performed [or, furnished] bj^ me, and the prices agreed to be paid for the same, by E. F., of the city [or, village] of : and that the said work is [or, materials are] to be done [or, furnished] upon and for the dwelling-house known as number , in street, in said city, [or, village.] Dated , the day of , 18 . CD. To Mr. A. B., of § 774. Notice of Filing Contract. Sir: Tou will please to take notice, that I have this day filed in the office of the County Clerk of the county of , a true copy of a contract, made and executed between E. F., of the city [or, village] of , and the undersigned C. D., dated the day of , 18 : and that the said contract relates to work or labor to be done [or, materials to be furnished] on or about the dwelling-house known as number , in street, in said city, [or village.] Dated, &c., [as in § 773.] C. D. § 775. Notice to Appear and Submit to Accowni, <&c* Sir : You wiU please to take notice, that you are required to ap- pear in the Court of Common Pleas of the city and county of New York, [or, the County Court of the county of ; or, before G. ' Laws of 1844, chap. 220; M.,chap. 305 j Laws of 1845; chap. 235; 4 Hill, 193; 7 Id., 625. a The notice must be served twenty (ten, in the city of New York,) days before the time for appearance. mechanics' and labokers' lien. i21 H., Esq., a Justice of the Peace of the county of ,] either in pej'- son or by attorney, on the day of next, and silbmit to an accounting and settlement in said court, of the amount due, or claimed to be due, for work and labor done \or, materials furnished] by the imdersigned, under a contract made between E. F., of said city of , [or, village of ,] and myself, bearing date the day of 18 , on or about the dwelling-house known as number , in street, in said city, [or, vil- lage,] and a copy whereof is on file in the ofiBce of the Clerk of the county of Dated, Ac, [as in § 773.] § 776. Notice to Produce BUI of Particulars of Offset. Sir : You will please to take notice, that you are required to pro- duce and serve on the undersigned, at his dwelling-house, in the city [or, village] of , within ten days after service hereof, a biU of particulars of any oflfset which may be claimed to the account herewith presented ; and you will also take notice, that the following is a bill of particulars of the amount claimed to be due by the under- ^gned, viz : [set forth the particulars, as in an ordinary account^ Dated, &c., [as in § 773.] § 777. Statement of Labor Done, or Materials Furnished, to he Signed hy the Person Doing the Work, or Furnishing the Materials, and the Contractor, and Delivered to the Owner or his Agent. We do hereby certify and agree, that the undersigned C. D., has performed labor [or, furnished materials] on or about the dwelling- house known as number , in street, in the city [or, village] of , to the value of dollars ; of which you wiU please take notice. Dated, &c., [as in § 773.] C. D. To Mr. A. B. E. F. § 778. Writ of Inquiry from the Court. The People of the State of New York, to the Sheriff of the County of , greeting; 1 Whereas, C. D., lately in our Court of Common Li* B.J pjggg ^£ jj^j. jjj^y. g^jj^ county of New York, [or, our County Court of our said county of ,] before the Judges 422 HBW clebk's assistant. [or, Judge] thereof, at the court-house in the city [or, town] of produced and showed to the said court, that on the day of ,16^ , in pursuance of an act entitled " An Act for the better security of mechanics and others erecting buildings and fur- nishing materials therefor, in the city and county of New York," passed April 29, 1844, [or, in the several cities in this State, (except the city of New York,) and in the villages of Sj'racuse, Williamsburgh, Geneva, Canandaigua, Oswego and Auburn, " passed May 7, 1 844,]* he personally served A. B. with a notice to appear and submit to an ac- counting and settlement in the said court, of which the following is a copy, viz: [copi/ notice. 'I And whereas, on the day of ,18 , that being the day on which the said A. B. was required to appear in and by the said notice, he, the said A. B., did not appear, but made default ; whereupon such proceedings were had in our said court, before our said Judges [or. Judge] thereof, that the said C. D. ought to recover against the said A. B. his damages on occasion of the premises; but because it is unknown to our said Judges, [or. Judge,] what damages the said C. D. has sustained; Therefore, we command you, that by the oaths of twelve good and lawful men of yom: county, you diUigently inquire what damages the said C. D. hath sustained, as well by means of the premises aforesaid, as for his costs and charges in this behalf expended ; and that you send to our said court, before our Judges [or. Judge] thereof, at the court-house, [or, city hall,] in the town [or, city] of , on the day of next, the inquisition which you shall thereupon take, under your seal, and the seals o^ those by whose oaths you shall take that mquisition, together with this writ. Witness, G. H., Esq. First Judge, [or. County Judge,] at the City Hall of the city of New York, [or, court-house in the town [or, city] of ,] on the day of 18 . P. v., Clerk. § 779. Affidavit for Execution. County, ss: 0. D., of said county, being duly sworn, says, that the annexed statement is a true copy of an original statement delivered by him, personally, to A. B., on the _ day of ,18 , and that the amount specified to be due in said statement now remains unpaid, [or, that on the day of , 18 , and more than ten days prior to this day, he demanded of A. B., the payment of the judgment of which the within is a correct transcript, and that the said A. B. refused to pay the same.] Sworn to, this day of , ) 18 , before me, j A. B, G. H., Justice of the Peajse. mechanics' and laboreks' hew. 423 § V80. Execution hy County Clerk. The People of the State of New York, to the SheriflF of the city and county of New York, [or, of the county of ,] greeting : r ■■ We command you, that of the goods and chat- ^ ■-' tels of A. B., in your bailiwick, you cause to be made dollars, which C. D., lately, in our Court of Common Fleaa of the said city and county, [or, in our County Court of said coun- ty of ,] recovered against the said A. B., in pursuance of the tenth section of an act, &c., [as in § Y78, to the* and then addi] whereof the said A. B. is convicted, as appears of record; and if sufficient goods and chattels of the said A. B. cannot be fonnd in yom- county, that then you cause the amount of dol- lars, aforesaid, to be made of the real estate whereof the said A. R was seized, on the day of ,18 , or at any time thereafter, in whose hands soever the same may be, and have you those moneys before our Judges of our said Court of Common Pleas, [or, our Judge of our said County Court,] at the City Hall in the city and county of New York, [or, court-house in the city [or, town] of ,] at the expiration of sixty days from the receipt hereof by you, together with this writ Witness, &c., [as in § 778.] CHAPTER XXrS. NATUEALIZATION. PRACTICAL REKARES. 1. Congress has the exclusive power of establishing uniform rules of naturalization.' 2. The terms upon which any alien, being a free white person, can be naturalized, are as follows, m : It is required that he declare on oath, before a State court, being a court of record with a seal and clerk, and having common law jurisdiction; or before a Circuit or District Court of the United States ; or before a clerk of either of said courts ; two years, at least, before his admission, his intention to become a citizen, and to renounce his allegiance to his own sove- reign. This declaration need not be previously made, if the alien resided here previous to the 18th June, 1812, and has since con- tinued to reside here ; nor if he be a minor under twenty-one years of age, and shall have resided in the United States three years next preceding his arrival to majority. It is sufficient to be made at the time of his admission, and that he then declare on oath, and prove to the satisfaction of the court, that for three years' next preced- mg, it was his hona fide intention to become a citizen ; and then the five years' residence, including the three years of his minority, will entitle him to admission as a citizen, on complying with the other requisites of the law. At the time of his admission, his coimtry must be at peace with the United States, and he must take an oath, before one of the courts above mentioned, to support the Constitution of the United States, and likewise, on oath, renounce and abjure his native allegiance. He must, at the time of his admission, satisfy the court, by other proof ' 1 Kent's Commentaries, (2d ed.) 424 ; 2 Wheaton, 269 ; 5 Id., 49. NATURALIZATION. 426 than his own oath, that he has resided five years, at least, within the United States, and one year, at least, within the State where the court is held; and if he shall have arrived after the peace of 181-5, his residence must have been continued for five years next preceding his admission, without being at any time, during the said five years, out of the territory of the United States. He must satisfy the court that, during that time, he has behaved as a man of good moral charac- ter, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. He must, at the same time, renounce any title, or order of nobility, if any he has.' 3. The children of persons duly naturalized, being minors at that time, wUl, if dwelling in the United States, be deemed citizens. If any alien shall die after his declaration, and before actual admission as a citizen, his widow and children will be deemed citizens.'^ 4. Any alien who may purchase and take a conveyance of lands or real estate in the State of New York, or to whom the same may be devised, or would descend if he were a citizen, and who shall have filed the deposition or aflfirmation, a form of which is hereinafter given, or who may file the same within one year from the time of such pur- chase, devise, or descent cast, may hold or convey such land or real estate, during the term of five years from the 10th day of April, 1843, in the same manner as if he were a citizen.' 5. A married woman, who is an alien, may be naturalized.* FORMS. § 781. Declaration of Jnieniion, and Certificate of Cleric. I, A. B., do declare on oath, that it is bona fide my intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to all and any foreign prince, potentate, state, and sovereignty, whatever ; and particularly to Victoria, Queen of the United Kingdom of Great Britain and Ireland, [or, as the name and title of the sovereign may Je.] Sworn in open court, this ) A B. day of , 18 , before me, J W. B., Clerk of the Court of 1 Laws of U. S., 1802, chap. 28; Id., 1813, chap. Ilj4 ; Id., 1866, chap. 32 j Id,, 1824, chap. 186; Id., 1828. chap. 106; 7 Hill, 66, 137. ' 2 Kent's Commentaries, (2d ed.) 64, 66 ; Laws oft S. 1804 chap 47, a 2 R. S. (3d ed.) 4, 5, M 16-21 ; Laws of 1830, chap. 171; Laws or 1836, chap. 339; Laws of 1838, chap. 32 ; Laws of 1^13, chap. 87; Laws of 134.5, chap. 116; 6 Paige, 114; 6 Id., 448; 20 Wendell, 338; 21 Id., u9; 2 Hill, 07. i 20 Wendell, 33S. 426 NEW clerk's absistast. I, W. B., Clerk of the Court of , being a court of record, having common law jurisdiction, and a clerk and seal, do certify that the above is a true copy of the original declaration of in- tention of A. B. to" become a citizen of the United States, remaining of record in my office. In testimony whereof, I have hereunto subscribed my name, and affixed the seal of the said court, the day of , one thou- sand eight hundred and [l. s.] W. B., Clerk. § '782. Oath of Alien. United States of America ; State ) of New York, County, j A. B., being duly sworn, doth depose and say, that he is a resident in the State of New York, and intends always to reside in the United States, and to become a citizen thereof, as soon as he can be natu- ralized ; and that he has taken such incipient measures as the laws of the United States require, to enable him to obtain naturalization. Sworn before me, the ) day of , 18 . \ W. B., Clerk of Court § 783. Affidavit of Alien under Eighteen Years of Age at the time of his Arrival. In the matter of CD., ) g^^^^ ^^ ^ork, County, ss : on his naturalization, j ' •" C. D., being duly sworn, says, that, for the' continued term of five years last past, he has resided within the United States, without being at any time, during the said five years, out of the territory of the United States, and that for one year last past, hO/has resided within the State of New York ; and that, at the time he so arrived in the United States, he had not attained his eighteenth year. Sworn in open court, this day ) of , 18 , before me, j W. B., Clerk of the Court of § 784. Oath to Support the Constitution in preceding case. I, C. D., do solemnly swear, that I will support the Constitution of tiie United States, and that I do absolutely and entirely renounce HATUKAUZATIOW. 427 and abjure all allegiance and fidelity to any foreiafn prince, potentate, state, or sovereignty, whatever, and particularly to Ernest Augustus, King of Hanover, of whom I was a subject Sworn, (fee, [as in § 783.] C. D. § 785. Proof of Good Behavior, ibc, to Accompany the foregoing Oath. State of New York, ) g. County, J E. F., of said county, being duly sworn, doth depose and say, that he is a citizen of the United States ; that he is well acquainted with the above named CD.; and that the said C. D. has resided within the limits, and under the jurisdiction of the United States, for five years last past, and, for one year last past, within the State of New York ; and that duiing the same period he has behaved himself as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good or- der and happiness of the same. And he further saith, that, at the time the said C. D. arrived in the United States, he had not attained his eighteenth year. Sworn, &c., [as in § 783.] E. F. § 786. Declaration of Intention to become a Citizen for Three Years past. I, C. D., do declare, on oath, that it is bona fide my intention, and has been for the last three years, to become a citizen of the United States, and to renounce forever all allegiance to all and every foreign prince, potentate, state, and sovereignty, whatever, and particularly to I'erdinand, Emperor of Austria. C. D. Sworn, &c., {as in § 783.] § 787. Certificate of Citisenskip. United States of America; State ) g^. of New York, County, j Be it remembered, that on the day of , in the year of our Lord one thousand eight hundred and , A. B., late of , in the kingdom of France, at present of , in the State of , aforesaid, appeared in the Court of , 428 »EW CLERK'S ASSISTANT. (the said court being a court of record, having common law juris- diction, and a clerk and seal,) and applied to the said court to be admitted to become a citizen of the United States of America, pur- suant to the directions and requisitions of the several acts of Con- gress in relation thereto: And the said A. B. having thereupon produced to the court such evidence, made such declaration and rentmciation, and taken such oath as are by the said acts required ; thereupon it was ordered by the said court, that the said A. B. be admitted, and he was accordingly admitted by the said court, to be a citizen of the United States of America. In testimony whereof, the seal of the said court is hereunto affixed, this day of , in the year one thousand eight hundred and , and in the year of our independence the [l. s.] By the Court. W. B., Clerk. l^For the form of the oath, see § 784.] § 788. Deposition of Alien to enable him to hold Seal Estate.' United States of America; State ) of New York, County, | ^^' A. B., being duly sworn, doth depose and say, that he is a resident ^i the State of New York, and intends always to reside in the Uni- ted States, and to become a citizen thereof, as soon as he can be naturalized ; and that he has taken such incipient measures as the laws of the United States require, to enable Mm to obtain naturali- zation. Sworn to before me, this ) day of , 18 . f Q. H., County Judge. 1 The deposition, or affirmation, is to be made, or taken, before any oiHcer authorized to take the proof of deeds, and isto^e tiled and recorded in the office of the Secretary of State. CHAPTER XXX. OFFICIAL OATH AND BOND. PRACTICAL REMARKS. 1. All persons elected or appointed to any civil office in this State, and in the several counties and cities thereof, are required to take the official oath of office. Supervisors, Town Clerks, Assessors, Over- seers of the Poor, Commissioners of Highways, and Town Sealers, are also required to take such oath, within ten days after receiving nolioe of their election or appointment. 2. Official bonds are to be executed within the time prescribed for taking the oath of office, unless otherwise directed by law. 3. Overseers of Highways, and Poundmasters, are required to give notice to the Town Clerk, in writing, signifying their acceptance of their respective offices, within ten days after receiving notice of their election or appointment 4. The official oaths and bonds of town officers are to be filed with the Town Clerk, except that the bond of a Collector is to be filed with the County Clerk, and that Justices of the Peace are required to file their oaths of office, within fifteen days after the first day of January next after their election, in the offices of the County Clerks of their respective counties.' 5. A person elected to the office of Justice of the Peace, and not taking the oath, but entering upon the duties of the office, is Justice de facto, although he is guilty of a misdemeanor." ■ Anmeded Constitulion of New York, Art. xii ; IB. S. (3d ed.) 123, § 33, et eeq.; Id., 395, { 29, et seq. ". 2 Barbour's S. C. Kep., 320. ■*30 Jisw clerk's AS6ISTANT. FORMS. § 789. Official Oath. I do solemnly swear, [or, affirm,] that I will support the Constitu- tion of the United States, and the Constitution of the State of New Y"ork, and that I will faithfully discharge the duties of [give the titU of the office] according to the best of my ability. A. E Sworn and subscribed, this day ) of ,18 , before me, ) P. v.. Clerk of the County of § 790. Notice of the Acceptance of a Town Office. To C. D., Clerk of the Town of , in the County of : Take notice, that I hereby accept the office of Overseer of High- ways of district No. , in said town of Dated the day of , 18 . O. R § 791. Instrument to he Given hy a Constable and his Sureties. H. C. B., chosen [or, appointed] Constable of the town of , in the county of ; and L. M. and S. T., as sureties of the said H. 0. B., tlo hereby jointly and severally agree to pay to each and every person who may be entitled thereto, all guch sums of money as the said Constable may become liable to pay, on account of any execution which shall be delivered to him for col- lection. Dated the day of ,18 Executed in the presence of, and ) the sureties approved by, J E. F., Supervisor, [or, C. D., Town Clerk] of the Town of H. C B. L. B. L. M L. S. S. T. L. S. § 792. Sheriff's JBond.^ Know all men by these presents: That we, A. P., L. M., and a T., of the town of , in the county of , ai-e held and 1 The penal sum of llic ShcrilT's bond in (he city oTNew York, is twenty thousand dollars: and there must be two sureties. In other counties, the bond must be iit the peual stun of ten thousand dollars, with two or more sureties. OFTIOIAL OATH AND BOND. 431 firmly bound unto the people of the State of New York, in the penal Bum of thousand dollars, to be paid to the said people ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and seve- rally, firmly by these presents. ' Sealed with our seals, and dated the day of , A. D. 18 .* Whereas, the above bounden A. P. hath been elected to the office of Sheriff of the county of , aforesaid, at the general election [or, at a special election] held therein, on the day of : Now, therefore, the condition of the above obligation is such, that if the said A. P. shall well and faithfully, in all things, perform the du- ties and execute the office of Sheriff of the said county of , during his continuance in the said office, by virtue of the said elec- tion, without fraud, deceit, or oppression, then the above obligation to be void ; else to remain in full force. A. P. " Executed in the presence of, and ) L. M. the sureties approved by, j S. T. P. v., Clerk of the County of L. S. L .8. § 793. Oath of Sheriff's Sureties, to be Indorsed on the Bond. I, L. M., one of the siu'eties named in the within bond, do solemnly swear, that I am a freeholder within the State of New York, and worth the sum of thousand dollars, over and above all debts whatsoever owing by me. L. M. Sworn and subscribed, this day ) of ,18 , before me, j P. v., Clerk of the County of § 794. Bond of a Deputy Sheriff. Know all men by these presents : That we, G. H., S. T., and 0. P., of the town of , in the county of , are held and firmly bound unto A. P., Esquire, Sheriff of the said county of , in the penal sum of thousand dollars, to be paid to the said A. P.; for which payment, ifec, [as in § 792 to the *, and then addfl Whereas the above bounden G. H. has been appointed to the of- fice of Deputy Slieriff in and for the said county of , by the above named A. P., Sheriff, as aforesaid ; Now, therefore, the condi- tion of this obligation is such, that if the said G. H. shall save and keep the said A. P. harmless of and from any liability incurred by 432 NEW clerk's assistant. and through any act of the said G. H., as such deputy, as aforesaid, then this obligation to be void, otherwise of force. Signed and sealed in ' presence of C. D. G. S. 0. H. L. S.' T. L. S. P. L. B.' § 795. Oeneral Form of an Officicd Bond. Know all men by these presents : That we, A. B., C. D., and E. F., of, &c., are held and firmly bound unto the people of the State of New York, [or, the officer, or officers, to whom the bond is to be given,"] in the penal sum of dollars, to be paid to the said people, [or officer, or officers, as aforesaid;] for which payment, 1 Denio, 402. > 9 Johnson, iSS: 19 Id., 513; 1 WendeU, 326; 9 Id., 437; 12 Id., 53; 20 Id,, 251 ; 2 Hill, 595; 5 Id,, 163. ♦ 1 Johnson, 106 ; 20 Id,, 611. » 20 Johnson, 176; 11 WendeD, 96; 20 Id., 81 : 3 Hill, 333. ° 3 Denio, 125 ; 2 Barbour's Cb. Hop,, 167. !• 2 Barbour's S, C. Rep,, 625. ' 2 Comstock, 622. FABTHSBSHIP. 485 shall not be liable beyond the fund so contributed by him, or them, to the capital.' 14. In order to form a limited partnership, a certificate must be made and signed by the parties, as in the form . hereinafter given. An affidavit of one or more of the general partners must also be made, stating that the sums specified in the certificate as having been con- tributed by the special partners, have been actually and in good faith paid in cash. The certificate must be acknowledged and filed, with the affidavit, in the office of the Clerk of the county in which the business is to be carried on ; and, if such business is to be conducted in more than one county, transcripts of the certificate and acknowledg- ment must be filed in such other counties. The terms of the partner- ship, when registered, are to be pubUshed for at least six weeks im- mediately after such registry, in two newspapers, to be designated by the Clerk of the county, and to be pubhshed in the senate district m which the business shall be carried on." 15. In publishing the terms of a limited partnership, they must be in all respects truly stated, in each newspaper, or the special partners will become liable as general partners.' 16. The general partners only may transact the business of a lim- ited partnership. A special partner may examine into the state of the partnership concerns, and advise as to their management; but his name cannot be used in the transactions of the firm ; nor can he interfere in the management thereof, either as agent, attorney, or otherwise, without rendering himself liable as a general partner. The business is to be conducted under a firm, in which the names of the general partners only can be iaserted, without the addition of the word " company," or any other general term.'' 17. Every association, or company, formed for the purpose of the transportation of passengers or property, either by boats, vessels or stages, is required to maie a statement of the names of the persons composing such association, or company, and to file a copy thereof in the office of the Clerk of each county through which its business is transacted. Until such statement be filed, no suit will be abated, on account of the non-joinder of any of the members of the association, or company, against which the action may be brought' 1 2 R. S. (Sded.,) 49, §§ 1, 2; 7 Paige, 585. a 2 R. S. (3d ed.,) 49, 60, 5 4, et seq. : 24 WendeU, 496 j 5 Hill, 309; 6 Id., 479. ' 3 Demo, 435. * 2 R. S. (3d ed.,) 50,-;5 13 ; Id., 51, 5 17; 21 Wendell, 496 : 6 HiU, 309 ; 6 Id., 479. s Laws of 1836, Chap. 385. ^36 KEW clkek's assistant. FORMS. § 796. Articles of Co-partnership. — General Form. Articles of agreement, made tlie day of , one thou- sand eight hundred and , between A. B., of, &c., of the one part, and C. D., of, &c., of the other part, witnesseth, as follows : The said parties above named have agreed to become co-partners in business, and by these presents do agree to be co-partners together, under and by the name, or firm of B. and D., in the business of wholesale dry goods merchants, and in the buying, selling and vending all sorts of goods, wares and merchandise, to the said business belonging, and to occupy the store No. , in street, in-the city of ; their co-partnership to commence on the day of 18 , and to continue for the term of five years from thence next ensuing, fuUy to be complete and ended; and to that end and purpose, the said A. B. and C. D. have dehvered in as capital stock, the sum of twenty thousand dollars, share and share alike, to be used and em- ployed in common between them, for the support and management of the said business, to their mutual benefit and advantage. And it is agreed, by and between the parties to these presents, that at aU times during the continuance of their co-partnership, they, and each of them, will give their attendance, and do their and each of their best endeavors, and, to the utmost of their skill and power, exert themselves, for their joint interest, profit, benefit and advan- tage, and truly employ, buy, sell and merchandise, with their joint -stock, and the increase thereof, in the business aforesaid : And also, ■that they shaU, and will, at all times during the co-partnership, bear, jpay and discharge, equally between them, all rents and other expenses that may be required for the support and management of the said business ; and that all gains, profits and increase, that shall come, grow, or arise, from or by means of their said business, shall be di- vided between them, the said co-partners, share and share alike ; and all loss that shall happen to their said joint business, by iU commodi- ties, bad debts, or otherwise, shall be borne and paid equally between them : And it is agreed, by and between the said parties, that there shall be had and kept, at all times during the continuance of their co-partnership, ^perfect, just and true books of account, wherein each of the said co-partners shall enter and set down, as well all money by them, or either of them, received, paid, laid out and expended, in and about the said business, as also all goods, wares, commodities and merchandise, by them, or either of them, bought or sold, by reason or on account of the said business, and all other matters and things PARTNERSHIP. 437 whatsoever, to the said business and management thereof in anywise belonging ; which said books shall be used in common between the said co-partners, so that either of them may have access thereto, with- out any inten-uption or hindrance of the other : And also, the said co-partners, once in each year, during the continuance of the said co- partnership, as aforesaid (to wit : on the day of , in each year!) or oftener if necessary, shall make, yield and render, each to the other, a true, just and perfect, inventory and account, of all the profits and increase by theni, or either of them made, and of all loss by them, or either of them, sustained ; and also, of all pay- ments, receipts and disbursements, and of aU other things by them made, received, disbursed, acted, or suffered, in their said co-partner- ship and business ; and the same account being so made, they shall, and wiU, clear, adjust, pay and dehver, each to the other, at the time, their just share of the profits so made as aforesaid. And the said parties hereby mutually covenant and agree, to and with each other, that during the continuance of the said co-partnership, neither of them shall, nor will, indorse any note, or otherwise become surety for, any person or persons whomsoever, without the consent of the other of the said co-partners: And at the end, or other sooner determination of their co-partnership, the said co-partners, each to the other, shall and will make a true, just, and final account, of all things relating to their said business ; and in all things truly adjust the same, and all and every stock and stocks, as well as the gains and increase thereof, which shall appear to be remaining, either in money, goods, wares, fixtures, debts, or otherwise, shall be divided between them, share and share alike. In witness whereof, the said parties to these presents have here- unto set their hands and seals, the day and year above written. Signed and sealed in ) A. B. [l. s.l presence of J C. D. [l. s.l G.H. 8 797. Articles of Co-partnership between Coimtry Merchants. Articles of agreement made and entered into, this day of , A. D. 18 , between A. B., of, (fee, of the one part, and C. D., of, for the buying and selling groceries, and such other articles as are usually dealt in by wholesale and retail grocers', in which all the parties interested are the said A. B. and C. D., who are the general partners, and the said E. F. and L. M., who are the special partners; that the said E. F. has contributed, &c., \as in § 800 to the * ] Dated New York, July 1st, 1847. A. B. CD. &c., &0., < The place where the business is to be earned on may be inserted here, although tha ■tatute does not seem to require it. CHAPTER XXXn. PATENTS. PRACTICAL REMARKS. 1. Patents ate granted to any person, or persons, for the term ef fourteen years, for any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not known or used by others, before his or their discovery or invention thereof, , and not, at the time of the appUcation for a patent, in public use, or on sale, with his or their consent, or allowance, as the inventor or discoverer.' 2. A patent may also be granted, for the term of seven years, for a design for a manufacturer; or for a design for the printing of woolen, silk, cotton, or other fabrics ; or a design for a bust statute, or has-relief, or composition in alto or basso-relievo ; or an impression or ornament to be placed on any article of manufacture ; or a pat- tern, or print, or picture, to be either worked into, or worked on, or printed, or painted, or cast, or otherwise fixed on any article of man- ufacture ; or a shape or configuration of any article of manufacture not before known or used by others. Such design, impression, or configuration, must be entirely new and original. A patent for a design, impression, or configuration, can issue only to a citizen, or to citizens, of the United States ; or to an alien, or aliens, who shall have resided one year in the United States, and taken the oath of his or their intention to become a citizen, or citizens.' 3. Where the term for which a patent is granted is fourteen years, it may be renewed for seven years, on application, in writing, to the Commissioner of Patents, notice of which application must be pub- lished in one or more of the principal newspapers in Washington, and in such other papers published in the section of the country • Laws of U. S., 1836: 1 a Laws of V. S., 1842. PATENTS. 443 most interested, adversely to the extension, as the Commissioner may direct; and any person may appear and show cause against such extension, to the Board, composed of the Secretary of State, Com- missioner of Patents, and Solicitor of the Treasury, who are author- ized to decide the question. 4. The assignment of a patent may be to the whole, or to an un- divTded part, by any instrument in writing. All assignments of pa- tents, or conveyances of the right to use the same, in any specified district, must be recorded in the patent office, within three months from the date of the same. 5. Before any inventor can receive a, patent for any new invention or discovery, he miist deliver a written description of his invention or discovery, specifying the manner in which the same is made, or com- pounded ; the improvement therein which he claims as his own inven- tion or discovery ; and the application of the principle or character which distinguishes it from other inventions. The appUcation must also be accompanied by duphcate drawings and written references, when the nature of the case wUl admit, which are to be signed by the patentee, and attested by two witnesses, except when the specification refers to them by letters or figures. A model, or a specimen of the ingredients and of the composition of matter, must also be delivered at the patent office, or to one of the agents appointed to receive models, &c. 6. A caveat, setting forth the design and purposes of any inven- tion, may be filed in the patent office by any citizen ; or by an alien who shall have been a resident in the United States one year next preceding, and shall have made oath of his intention to become a citizen ; who shall have made any new invention, on paying the sum of twenty doUars, which will be deemed part of the regular fee, if the patent is afterwards issued. If an appUcation be made, witW one year after filing the caveat, for a patent for any invention which may interfere with that specified in the caveat, the Conmaissioner is required to give notice by mail to the person filing the same, who wiU be required to file his specifications, &c., withia three months. 7. The following are the fees payable at the patent office : If a citizen of the United States, or an alien resident in the United States one year next preceding the application, and who shall have made oath of his intention to become a citizen, thirty dollars, as a patent fee; if a subject of the King of Great Britain, five hundred dollars; if a citizen of any other country, three hundred dollars. On ex- tending a caveat, the fee is twenty dollars ; on entering an application for the decision of arbitratws, twenty-five dollars ; on entering a pa- tent beyond the fourteen years, forty dollars; far recording each assignment, or transfer, if not over three hundred words, one dollar — - if more than three hundred words, and less than one thousand, two doUars — if more than one thousand words, three dollars ; for adding 444 KEW clerk's assistakt. the specification of a subsequent improvement, fifteen dollars; on surrendering an old patent for a re-issue, to CQrrect a mistake of the patentee, fifteen dollars ; for every additional patent in case of re- issue, thirty dollars ; for a disclaimer, ten dollars ; for copies of papers, ten cents per folio. The fee on an application for a patent for a de- sign, impression, or configuration, is one-half the sum required in other cases. AU fees are payable in advance in specie. 8. Every married woman, who is a resident of the State of New York, and who may receive a patent for her own invention, may hold and enjoy the same, and all the proceeds and benefits thereof, and of such invention, to her own separate use, free and independent of her husband and his creditors ; and may transfer and dispose of the same, in the same manner as if she were unmarried ; but she cannot contract any pecuniary obligations to be discharged at any future time.' FOEMS. § 805. Petition. To the Commissioner of Patents : The petition of A. B., of , in the county of , and State of , respectfully represents : That your peti- tioner has invented a new and improved mode of preventing steam boilers from bursting, which he verily believes has not been known or used prior to the invention thereof by your petitioner. He there- fore prays that letters patent of the United States may be granted to him therefor, vesting in him, and his legal representatives, the ex- clusive right to the same, upon the terms and conditions expressed in the act of Congress in that case made and provided; he having paid thirty doEars into the treasury, and complied with the other provisions of the said act. A. B. § 806. Specification. To all whom it may concern : Be it known, that I, A. B., of , in the coimty of , and State of New York, have invented a new and improved mode of 1 Laws of New York, 1845, chap.ll. PATEITTS. 445 preventing steam boilers from bursting; and I do hereby declare, that the following is a fuU and exact description of the said invention : The nature of my invention consists in providing the upper part of a steam boiler with an aperture, in addition to that for the safety valve ; which aperture is to be closed by a plug, or disk, of alloy, which win fuse at any given degree of heat, and permit the steam to escape, should the safety-valve fail to perform its functions. To enable others skilled in the art to make and use my invention, I will proceed to describe its construction and operation : I construct my steam boiler in any of the known forms, and apply thereto guage- cocks, a safety-valve, and the other appendages of such boilers ; but b order to obviate the danger arising from the adhesion of the safety- valve, and from other causes, I make a second opening in the top of the boiler, similar to that made for the safety-valve, as shown at A, in the accompanying drawing ; and in this opening I insert a plug, or disk, of fusible alloy, securing it in its place by a metal ring and screws, or otherwise. This fusible alloy, I, in gensral, compose of a mixture of lead, tin and bismuth, in such proportions as will insure its melting at a given temperature, which must be that to which it is intended to limit the steam, and will, of course, vary with the pres- sure the boiler is intended to sustain. I surround the opening con- taining the fusible alloy, by a tube, B, intended to conduct off any steam which may be discharged therefrom. When the temperature of the steam in such a boUer rises to its assigned limit, the fusible al- loy wiU melt, and allow the steam to escape freely, thereby securing it from all danger of explosion. What I claim as my invention, and desire to secure by letters patent, is the application to steam boilers of a fusible alloy, which wiU melt at a given temperature, and allow the steam to escape, as herein described, using any metallic com- pound which will produce the intended eflFect, Witness, G. H. A. K E. F. § 807. Specification of a Machine} To all whom it may concern : Be it known. That I, A. B., of , in the county of , and State of , have invented a new and useful machine for , \state the me and tide of the machine; and if the appli- cation is for an improvement, it should read thus: a new and useful improvement on a \or, on the] machine, &c.] : and I do hereby I Where the specification is of an improTement, the original inrentiou should be dis. claimed, and the claim confined entirely to the improvement. 446 NEW cleek'b assistant. declare that the following is a full, clear, and exact description, of the construction and operation of the same, reference being had to the annexed drawings, making f. part of this specification, in which figure 1, is a perspective view; figure 2, a longitudinal elevation; figure 3, a transversa section, &c., [describe all the sectiong of the drawings, and refer to the parts by letters. Then give a description of the construction and operation of the machine, and conclude with the claim, which should express the nature and character of the inven- tion, and identify the part or parts claimed, separately, or in combi- nation.'] Witness, G. H. A. B. E. F. § 808. Oath to Accompany Specification. County of , State of , ss: On this day of > 18 , before the subscriber, a Justice of the Peace in and for the said county, personally appeared the within named A. B., and made solemn oath, [or, affirmation,] that he verily believed himself to be the original and first inventor of the mode herein described for preventing steam boilers from bursting : and that he did not know, or believe, that the same was ever before known or usejl ; and that he was a citizen of the United States. G. H., Justice of the Peace. § 809. Application for a Patent on a Design. To the Commissioner of Patents : The petition of A. B., of the town of , and county of , in the State of , respectfully represents : That your petitioner has invented or produced a new and original design or fig- ure to be stamped or printed on fabrics, which, when thus printed, are termed calicoes, which he verily believes has not been known prior to the invention or production thereof by your petitioner. He therefore prays that letters patent of the United States may be granted to him therefor, vesting in him and his legal representatives the exclusive right to the same, upon lihe terms and conditions ex- pressed in the act of Congress in that case made and provided; he having paid fifteen dollars into the treasury, and complied with the other provisions of the said act A. B. PATENTS. 447 § 810. Certificate of Deposit of the Patent Fee. The Bank of : The Treasurer of the United States has credit at this ofifice, for dollars in specie, deposited by A. B., of the town of , in the county of , and State of , the same being for a patent for a steam boiler, [or, as the case may Je.] § 811. Withdrawal, with Accompanying Receipt. Sir : I hereby withdraw my application for a patent for improve- ments in the steam boiler, now in your office, and request that twenty- dollars may be returned to me, agreeably to the act of Congress authorizing such withdrawal. A. B. Washington, March 15, 1847. Received of the Treasurer of the United States, per Hon. E. B., Commissioner of Patents, twenty dollars, being the amount refunded on withdrawing my apphcation for a patent for improvements, &c. I 812. Surrender of a Patent for Re-issue. To the Commissioner of Patents : The petition of A. B., of , in the county of „ and State of , respectfully represents : That he did obtain letters patent of the United States, for an improvement in the boilers of steam engines, which letters patent are dated on the first day of March, 18 ; that he now believes that the same is inoperative and invalid, by reason of a defective specification, which defect has arisen from inadvertence and mistake. He therefore prays that he may be allowed to surrender the same, and requests that new letters patent may issue to him for the same invention, for the residue of the period for which the original patent was granted, under the amended specification herewifli presented ; he having paid fifteen dollars into the treasury of the United States, agreeaWy to the re- quirements of the act of Congress in that case made and provided. § 813. Assignment of a Patent Right. Whereas, letters patent, bearing date the day of , A. D. 18 , were granted and issued by the government of the United States^ under the seal thereof, to A. B„ o^ „ . County, ^ I, W. B. , Clerk of the Court, of the county and State aforesaid, do hereby certify, that G. H. is a Justice of the Peace, in and for said county, duly commissioned and qualified ; that his com- mission was dated on the day of , 18 , and will expire on the day of ,18 ; and that his signature above written is genuine, r -, Given imder my hand, and the seal of said county, this L^ ^--l day of , 18 . W. B., Clerk. § 824. Power of Attorney, and AcTcnovjledgment. Know all men by these presents : That I, A. B., of , a revolutionary [or, an invalid, as the case maj 5e,] /pensioner of the United States, do hereby constitute and appoint E. F. my true and lawful attorney, for me, and in my name, to receive from the agent of the United States for paying pensions in Albany, State of New York, my pension from the day of , 18 , to the day of , 18 . _ Witness my hand and seal, this day of ,18 Sealed and delivered in ) A. B. [l. s.] presence of f CD. State of , ) gg. County, j Be it known, that on the day of ,18 , before the subscriber, a Justice of the Peace in and for said county, duly authorized by law to administer oaths, personally appeared A. B., above named, and acknowledged the foregoing power of attorney to be his act and deed. In testimony whereof, I have hereunto set my hand, the day and year last above mentioned. G. H., Justice of the Peace. § 825. Oath of the Attorney. State of ,K„. County, ^ Be it known, that on the day of ,18 , before the subscriber, a Justice of the Peace in and for said county, duly au- thorized by law to administer oaths, personally appeared E. F., the attorney named in the foregoing power of attorney, and made oath 456 NEW clerk's assistant. that he has no interest whatever in the money he is authorized to re- ceive, by virtue of the foregoing power of ^ attorney, either by any pledge, mortgage, sale, assignment, or transfer; and that he does not know or believe that the same has been so disposed of to any person whatever. Sworn and subscribed, the day and year ) E, F. last above mentioned, before me, J Q. H., Justice of the Peace. § 826. Oath of Gaardian/or Pensioner. State of ' I ss • County, J Be it known, that before me, H. T. C, a Justice of the Peace in and for said county, duly authorized by law to administer oaths, per- sonally appeared G. H., guardian of A. B., and made oath, in due form of law, that the said A. B. is stUl living, and is the identical person named La the original certificate in his possession, of which (I certify) the following is a true copy : [insert here a copy of the cer- tificate of pension, including names and dates :^ That he resides in , and has resided there for the space of years past, and that previous thereto he resided in Sworn and subscribed, this ) Q. H., Guardian, day of ) 18 , before me, j H. T. C, Justice of the Peace. § 827. Oath of a Widow, a Pensioner. State [or. Territory] of ' I ss- County of , j ' Be it known, that before me, G. H., a • Justice of the Peace, duly authorized by law to administer oaths, in and for the county afore- said, personally appeared M. B., and made oath, in due form of law, that she is the identical person named in an original certificate in her possession, of which (I certify) the following is a true copy : [Insert here a copy of her certificate of pension, including names and dates :^ That she has not intermarried, but continues the widow of the above mentioned A. B. ; and that she now resides in , and has resided there for the space of years past; and that previous thereto she resided in ; of the truth of which statements I am fully satisfied. Sworn to and subscribed, this ) M. B. day of ,18 , before me, J G. H., Justice of the Peace. PENSION VOUCHERS. 457 828. Oath of a Widow, who drew a Pension wider the Act of March Sd, 1843. United States of America, State of , County, Be it known, that before me, G. H., a Justice of the Peace, in and for the county aforesaid, duly authorized by law to administer oaths, personally appeared M. B., and made oath, in due form of law, that she is the identical person who drew a pension under the act of the 3d of March, 1843, on account of the revolutionary service of her husband, the late, \insert here the name and rank of the hushand,'\ at the rate of $ per annum ; that she now makes this affidavit for the purpose of drawing a pension under the act of Congress, passed on the I'Zth of June, 1844, entitled "An Act to continue the pensions of certain widows;" that she has not intermarried, but con- tinues to be a widow ; that she now resides in , in the county of , and State of , and has resided there for the space of years past; and that previous thereto she resided in Sworn to and subscribed, this day ^ M. B. of , 18 , in presence of >■ R P. before me, ) G. H., Justice of the Peace. 8 829. Oath of Identity for the Widow, or Child, of a Deceased Pensioner. State of ' I ss : County, j Be it known, that before me, G. H., a Justice of the Peace in and for the county aforesaid, duly authorized by law to administer oaths, personally appeared M. B., and made oath, in due form of law, that she [or, he] is the widow \or, son; or, daughter] of A. B., the iden- tical person who was a pensioner, and is now dead, and to whom a certificate of pension was issued, which is herewith surrendered: That the deceased pensioner resided in , in the State of , for the space of years bdfore his death; and that previous thereto he resided in Sworn and subscribed, this } M B. day of ,18 .before me, S G. H., Justice of the Peace. 1 Where the pension has been increased, the magistrate should note the fact. The ahova fortD may be used for an executor or administrator, by substituting the word " executor " or "administrator " for " widow." 468 NEW clerk's assistant. § 830. Power of Attorney for the Widow, or Child, of a Deceased Pensioner.^ Know all men by these presents: That I, M. B., of , in the cojinty of , State of , widow [or, child,] of A. B., who was a revolutionary [or, an invalid] pensioner of the United States, do hereby constitute and appoint E. R, my true and lawful attorney, for me, and in my name, to receive from the agent of the United States for paying pensions in , State of , the balance of said pension from the day of ,18 , to the day of , 18 , being the day of his death. Witness my hand and seal, this day of ,18 Sealed and delivered ) M. B. [l. s.J in presence of ) CD. ;}ss: § 831. Certificate of the Court as to the Death of a Pensioner. State of County of I, W. B., Clerk of the Court of , holden at in and for , do hereby certify, that satisfactory evidence has been exhibited to said court, that A. B. was a pensioner of the United States at the rate of dollars per ; was a resident of the county of , in the State of , and died in the , in the State of , in the year 18 , on the day of ; that he left a widow, [or, left no widow; or, left a chUd, or, left children,] whose name is [or, whose names are] M. B., [or, K B., C. B., &c., &c.] [If the certificate has been lost, insert here, in addition: And that the pension certificate of said pensioner has been lost, and, after due search and inquiry therefor, it cannot be found.] In testimony whereof, I have hereunto set my hand and affixed r -| my seal of office, at , this day of , L^ "J in the year of our Lord 18 W. B., Clerk of the 8 832. Oath where Pension Certificate is Illegally/ Withheld. State of ' I ss • County, j Be it known, that before me, Cr. H., a Justice of the Peace, in and for the county aforesaid, duly authorized by law to administer oaths. 1 For forms of acknowledgment, and attsrney'a oath, see §§ 824 and 825. Where one of tha children is appointed by the others to receive the balance, the attorney's oath is not required. PENSION VOUCHEES. 459 personally appeared A. B., and made oath, in due forna of law, that he [or, she] is the identical A. B. named in an original pension certi- ficate now illegally withheld by, [here state the facts respecting the detention of the pension certificate ;'\ that he [or, she] is entitled to a pension of [insert the amount to which the pensioner is entitled at the time of making the oathi\ dollars per month ; that he [or, she] now resides in , and has resided there for the space of , years past; and that previous thereto, he [or, she] resided in Sworn and subscribed, this ) A. B. day of , 18 , before me, ) G. H., Justice of the Peaca § 833. Certificate of Magistrate and Clerk, to Accompany § 832. State of , ) County, y ss : May lst» 1849. ) Conformably to the regulations of the War Department of the 27th of October, 1832, I, G. H., a magistrate in the coimty above named, do hereby certify that I have the most satisfactory evidence, viz : [state what the evidence is; whetlier personal knowledge, or the affidavits of respectable persons, giving their names,^ that A. B., who this day appeared before me to take the oath of identity, is the iden- tical pensioner he [or, she] declares himself [or, herself] to be, in the annexed affidavit; and I am also satisfied that the statement made by him [or, her] in relation to the pension certificate, is true. Given under my hand, at , the day and year above written. G. H. I, W. B., Clerk of the Court of county, certify that G. H. is a magistrate, as above, and that the foregoing certifi- cate, purporting to be his, is genuine. In testimony whereof, I have hereunto affixed my seal of office, p 1 and subscribed my name, this day of , L ■ ' in the year W. B., Clerk of the Court of county. CHAPTER XXXIV. PLANK AND TURNPIKE EOADS. PRACTICAL REMARKS. 1. Any number of persons, not less than five, may form them- selves into a corporation for the piu-pose of constructing and owning a plank or turnpike road, under the Laws of the State of New York. In order to form such a corporation, notice of the time and place or places, where books for subscribing to the stock of such road will be opened, must be given in at least one newspaper, printed in each counly through which the road is to be constructed. When stock to the amount of five hundred dollars for each mile of the pro- posed road has been subscribed in good faith, the subscribers may choose directors and make and sign articles of association, which articles are to be filed in the office of the Secretary of State ; and thereupon the subscribers will bfecome a body corporate, clothed with the powers and privileges, and subject to the liabilities of corpo- rations generally, as contained in titles three and four of chapter eighteen of the first part of the Revised Statutes, (volume I, 3d edition, pp. 713-736.)' 2. The articles of association are not to be filed tUl five per cent on the amount of stock subscribed shall have been, in good faith, paid in to the directors in cash, to be verified by the affidavit of at least three of the directors. Copies of the articles, and of the affidavit indorsed, cei-tified to be correct by the Secretary of State, may be read in any state court as presumptive evidence of the incorporation of the Company, and of the facts therein stated. ' Laws of 1847, chap. 210; Id., chap. 287 ; | Laws of 1849, chap. 250; Laws of 1850 Id., chap. 398; Laws of 1848, chap. 360 ; | chap. 71. PLANK ROADS. 461 3. Whenever a plank or turnpike road company desires to con- struct a road througk any part of any county, application must be made to the Board of Supervisors, notice of which must be pub- Hshed for six successive weeks, in all the newspapers printed in the county, or in three, if there be more than three. Special meetings of the Board of Supervisors may be called to hear the application, any three of the members thereof fixing the time of the meeting. The expenses of a special meeting are to be paid by the Company, for whose benefit the same is called. Upon the hearing of the ap- plication, owners of land on the hne of the proposed road, and all persons residing in the county, may appear and be heard ; and testi- mony may be taken by the Board, or by any judicial officer autho- rized by it. If the Board are of opinion that the public interests will be promoted by the construction of the proposed road, they may, by a majority vote, authorize the same to be laid out and constructed. 4. Where a road is authorized to be constructed by a Board of Supervisors, they must appoint three disinterested persons, not the owners of real estate in any town through which the proposed road is to be constructed, or in any town adjoining such town, as Commis- sioners to lay out the same. The Commissioners are required to hear all persons interested, at such time or times as they may ap- point, to take testimony, to determine the width of the road, and to make an actual survey and description thereof, as laid out by them. The survey is to be signed and acknowledged in the same manner as conveyances of real estate, and recorded in the Clerk's office of the county. Where a road is proposed to be constructed in more than one county. Commissioners are to be appointed in each county. Each Commissioner is entitled to receive two dollars per day for lus fees, to be paid by the Company. 5. No plank or turnpike road can be laid out through an orchard of the growth of four years or more, to the injury of fruit trees, or through a garden cultivated four years or more, unless with the con- sent of the owner of such orchard or garden; nor can any such road be laid out through any dwelling-house, or building con- nected therewith, or any yard, or inclosure properly appurtenant thereto, without the consent of the owner ; neither can a plank or turnpike road company, bridge any stream navigable by vessels or steamboats, or in any manner so as to obstruct the passage of rafts twenty -five feet in width. 6. Where the route of a plank or turnpike road has been laid out and surveyed by Commissioners, the Company may enter upon and talce possession of the lands described in the survey, provided the same be purchased of the owners thereof But if, on account of the ina- biUty or unwillingness of the owners to sell or convey, the right to such lands cannot be acquired, application must be made to the County Judge, by whom a jury will be drawn to hear the parties 462 NEW clerk's assistant. interested, take testimony, and ascertain and assess the damages. The verdict of the jury will be final, unless application be made within twenty days to the Supreme Court for a new trial, and un- less such appUcation be granted. 7. Lands may be obtained by a plank or turnpike road company, for the construction of a road, by purchase of the owner or owners, and in such case no application to the Board of Super\isors will be necessary. An accurate survey must be made by a practical sur- veyor, signed by the President and Secretary of the Company, acknowledged by them, and recorded in the County Clerk's office. 8. Where it is desired to construct a plank or turnpike road on the hne of a public highway, the Supervisor and Commissioners of Highways of any town, or a majority of them, if there be more than one Commissioner, may, with the consent in writing of at least two- thirds of all the owners of land along such highway, actually residing on the line of the proposed road and on such highway, agree with the Company upon the compensation and damages. This agree- ment must be in writing, and must be filed in the office of the Town Clerk. In case such agreement be entered into, and an accurate survey be made, sig-ned, acknowledged, and recorded, no application to the Board of Supervisors will be necessary ; otherwise, the damar ges must be ascertained by a jurytobe called bythe County Judge; and if the Supervisor and Commissioners refuse to give their con- sent to the construction of the proposed road, application must be made to the Board of Supervisors for their assent Moneys received by Commissioners of Highways for compensation and damages, must be expended in improving the highways in their respective towns. 9. Three inspectors of plank and turnpike roads are to be ap- pointed by the Board of Supervisors in each county in which any such roads may be constructed. They hold their offices during the pleasure of the Board, and are allowed two dollars per day for their services, to be paid by the Company whose road they may inspect 10. Plank and turnpike roads are not to exceed four rods in width, except vrith the consent of the owners of adjoining lands ; and the Commissioners, or Inspectors, may Sx the width at four rods, or less than that, if they choose so to do. 11. Whenever a plank or turnpike road Company has constructed three consecutive miles of their proposed roact they may apply to the Inspectors, or a majority of them, to inspect the road; and if such inspectors, or a majority of them, certify that a sufficient num- ber of miles of road have been constructed according to law, upon fiUng their certificate, the Company will be authorized to taie toE Toll gates, however, are iiot to be erected within three miles of each other, on the same road. 12. The rates of toll on plank roads are not to exceed one and a half cents per mile, for vehicles drawn by two animals — one-half cent PLANE ROADS. 463 per mile to be added for each additional animal more tlian two ; three-quarters of a cent per mile, for every vehicle drawn by one animal; or half a cent per mile, for eveiy score of sheep or swine, and for every horse and rider, or led horse. Turnpike companies may collect three-quarters of a cent per mile, for every vehicle drawn by one animal ; one and one-quarter cent per mile, for every vehicle drawn by two animals — one-quarter cent per mile to be added for every animal more than two ; one cent per mile, for every score of neat cattle ; and one-half cent per mUe, for every score of sheep or swine. Eates of toUs may be determined by the distance between toll gates, instead of the distance actually traveled, except that where persons reside within one mile of a gate, only half tolls are to be exacted from them at such gate.i 13. Persons going to or from any court to which they have been summoned as jurors, or subpoenaed as witnesses ; going to or from any training at which they are by law requu-ed to attend ; going to or from religious meetings ; going to or from any funeral, or belong- ing to a funeral procession ; or going to any town meeting or election at which they are entitled to vote, for the piu^ose of voting, and returning therefrom ; are exempt from the payment of toUs at the gates of plank road companies. Farmers going to or returning from their work on their farms, when not employed in the transportation of other persons or their property, and troops in the actual service of the State, or of the United States, are also exempt from toUs on plank roads. Persons going to or returning from any grist mill or blacksmith's shop, where they ordinarily get their grinding or black- smith's work done, for the express purpose of getting grinding or blacksmith's work done, are exempt from the payment of toll at one gate only, within five miles of their residence, provided the plank road be constructed on a public traveled highway. 14. The business and property of a plank or turnpike road com- pany must be managed and conducted by a Board of Directors, consisting of not less than five, nor more than nine, who are to be elected annually, after the first year, at such time and place as may be designated in the by-laws of the corporation. Vacancies are to be filled by the remaining directors, for the remainder of the year. 15. It is the duty of the directors of every plank or turnpike road company, to make an annual report to the Secretary of State, under the oath of at least two of the directors, stating the cost of their road ; the amount of their capital stock; the amount expended; the amount paid in ; the whole amount and the annual amount of tolls and earn- ings, in separate items ; the amount set apart tor a reparation fund ; and the amount of indebtedness of the company, with the object for which it accrued. > 1 Caines' 182; 23 Wendell, 193. 464 KEW clerk's assistant. 16. Branches may be constructed by plank road companies, with the written consent of a majority of the inspectors ; and the capital stock may be increased, for that purpose, not exceeding two thou- sand dollars for each mile of additional road. 17. The inhabitants of any road district in the State may grade, gravel, or plank, the road or roads in such district, by anticipating Sie highway labor of such road district, for one or more years, and applying it to the immediate construction of such plank or gravel road ; and they wiU thereupon be exempt from the labor so antici- pated, except so far as their labor may be required to keep such road or roads in repair. Any road so constructed wiU be a free road. FORMS. § 834. Notice of Subscription. PLANK ROAD NOTICE. Notice is hereby given, that books of Subscription to the capital stock of a company proposed to be incorporated for the construc- tion of a plank \or, turnpike] road from to , to be called " The Road Company," will be opened at the house of O. P., in the city of , on the day of , 18 , and that such books will remain open at the said place until the whole amount of the capital stock shall be subscribed. Dated ,18 . § 835. Articles of Association for the Formation of a Plank Road Gompany. Articles of Association made and entered into this day of , by and between the persons whose names aie hereunto subscribed, Witnesseth: First — That we, the undersigned, do hereby form ourselves into a Corporation, for the purpose of constructing and owning a Plank Road from to , wholly within the county of , [or, counties of , and ] and State of New York. Second — The name of such Corporation shall be , and the same shall continue years from the day of the date of > these articles. FLANK RO^DS. 466 Third — The capital stock of said Corporation shall be dollars, and shaU. be divided into shares, of lars each. dol- Fourth — There shall hb B., C. D., &o., of the town of Directors thereof. Directors of said Companj;, and A. , &c., shall be the first Fifth — Said Road shall commence at , in the town of , in said county of , and rim thence, through a part of said town of , to the town of ; thence through said town of , to the village of ; thence through said village, &c., [describe the route to the place of termination, giving each town, village and dty through which it is proposed to con- struct the road^ Sixth — It shall be the duty of the Directors, to issue Scrip to those who shall be entitled to stock in said Company ; when five per cent on the amount of such stock shall have been paid in thereon, which Scrip shall be signed by the President and countersigned by the Secretary of said Company. Seventh — It shall be the duty of the Treasurer, to indorse upon the Scrip, which shall be held by any Stockholder, every sum which shall be received by such Treasurer thereon, and the time when any such sum shall be so received. Names of SLUckbolders. Residence, (Town or Village.) County. No. Sharet The § 836. Scrip Certificate. Plank Road Company. This certifies that A. B., of is entitled to shares of the capital Stock of the Plank Road Company, each share being dollars, upon each share of which there has been paid the sum of , subject to such future payments as may from time to time be required by the Directors and the cona- tions of the Articles of Incorporation; said Stock is transferable only on the books of the Corporation, by the Stockholder in person, or by his attorney, and on surrender of this certificate. In testimony •whereof, the President and Secretary have hereunto set their hands at , this day of , 185 . a G., Secretary. S** 1 B., President 466 KEW clerk's assistant. § 837. Affidavit of Amount of StocTe 'paid in. State of New York, ) County, Bs: J A, B,, C. D., and E. R, being duly swom, depose and say, and each for himself deposeth and saith, that they are Directors of " The Eoad Company," and that five per cent of the capital stock of said Company, described in the witmn articles of association, has been actually and in good faith paid in to the Directors thereof m cash. Swom to before me ,1 A. B. ftris day of , 18 . ^ C. D. G. H., County Judge. ) E. F. [Or any officer authorized to administer oaths.l § 838. Notice of Application to Board of Supervisors} Plank Eoad Notice. by " The Eoad Company." Notice is hereby ^yen that application wiU be made to the Board of Supervisors of the county of , at their annual meeting to be held at the Court House in the of , on the day of 18 , for their assent to the construction of a plank [or, turnpike] road, from the of to the of , in said county. Dated , 18 . § 839. Conveyance of Bight of Way hy Owner. This Indenture, made this day of , 18 , between A. B., of the town of , in the county of , and State of New York, of the first part, and " The Eoad Company," of the second part, Witnesseth : That the said party of the first part, for and in consideration of dollars to him in hand paid, and also in consideration that the said Eoad Com- pany shall commence and complete a plank road from the of to , has bargained and sold, and by these pre- sents does bargain, sell and convey unto the said party of the second part, and its successors, the right of way over and through the lands ^ where a special meeting ia called to hear'an application, each member of the Board must be notilied of the time and place of such meeting, at the expense of the Company. FLANK ROADS. 467 of the said party of the first part, for the purpose of laying, con- structing, and using such plank road. Said road is to be laid out, constructed and used on the line of the highway, [or, as the case may 5e,] leading from to , and to be not exceeding four rods in width, mcluding the line and width of the present high- way. The route hereby intended to be conveyed, begms at the north line of lands now owned by and occupied by , and runs thence northerly to the south line of land owned by and occupied by , in said county of Cayuga Witness the hand and seal of the said party of the first part the day and year first above written. Sealed and delivered ^ A. B. [l. s.] in presence of > R P. § 840. Consent of Inhabitants. We, the undersigned, owners of land along the highway leading from to , and residing on said highway, do hereby give our consent to the construction of a plank [or, turnpike] road on the line of said highway from to aforesaid. Witness our hands this day of , 18 . A. B. &o., &c. § 841. Release of Bight of Way, ly Supervisor and Commissioners. This Agreement, made this day of , between G. H., Supervisor of the town of , in the coimty of , and A. B., C. D., and E. R, Commissioners of Highways of said town, of the first part, and the Plank Road Company of the second part, Witnesseth: That the said parties of the first part do hereby sell and convey mito the said party of the second part, in consideration of dollars to them in hand paid, by the said party of the second part, the receipt whereof is hereby acknow- ledged, the right to use and occupy the highway, &c., [describe the route,'] for the purpose of constructing, owning and using a Plank Boad thereon, during the time it shall be needed, or required, tiere- for by the said Company. Witness our hands, as such Supervisor and Commissioners of the town aforesaid, the day and year first above written. Signed in presence of ) G. H., Supervisor. R F. J A. B., ) Commissioners of C. D., y Highways of the E. R, ) Town of 468 NEW cuerk's assistant. § 842. Achnawledgntent of a Survey. State of New York, ) County, ) On this day of , 18 , before me, personally appeared A. B., C. D., and E. R, Commissioners appointed by the Board of Supervisors of the county of , to lay out a road, to be constructed by the Company, from to , [or, A. B. and C. D., the President and Secretary, respectively, of the Company,] and severally acknowledged that their signatures to the foregomg [or, within] survey of the said road, were true and genuine. G. H., County Judge. [Or any officer authorized to take acknowledgmenis.'] § 843. IfoUce to Pay in Installment. OfiBce of the Road Company, ) July ,18 . f Sir: By order of the Board of Directors of the Road Company, you are required to pay iu to the Treasurer, at his office in , a second installment of per cent on your stock, on or before the day of , 18 . Yours, &c., S. G., Secretary. To Mr. A. B. § 844. Proxy. [For Proxy, Oaths, and Affidavits, Power to receive Dividends, and other forms used by OorporaMons or Stockholders, see Chapter VII] I 846. Notice of Drawing Jv/ry to Assess Damages. Office of the Company, ) July ,18 . f To Mr. A. B. : Please take notice. That on the day of ,18 , at 10 o'clock A. M„ Hon. J. P. H., County Judge of county, will ' For other forms, where the signatures are proreJ by a subscribing witness, or the panin ue not known to the oflicer, see Chap. I. PLANE R0AD8. 469 attend a drawing from the grand jury-box of county, at the oflSce of the County Clerk, in the city of Auburn, said drawing to be made by E. B. C, County Clerk of Cayuga county, pursuant to an order of said Judge, of twenty-four competent and disinterested Jiffors, and as many more as said Judge shall direct, to ascertain the compensation and damages of each person owning land on or ad- joining the line of the road, running through the town of , in said county, on the straight road (so called) from to , between the north line of said town and the house of C. D, ; said road being of the width of four rods, as surveyed by G. H., and located by L. M., 8. T., and V. W., Commisiomers duly appointed by the Board of Superyisors of county for such purpose ; and also to ascertain the compensation and damages of the town of , for taking said road to construct a plank road thereon, [or, of the persons owning land on the line of the said proposed road'] By order of the Board of Directors. S. G., Secretary § 846. Notice of Meeting of Jwrj. ;he July , 18 Office of the Company, ) To Mr. A. B. : Please take notice. That a jury drawn in pursuance of the Statute itt such case made and provided, to ascertain the compensation and damages of the several owners of land on the line of the road, between the north line of the town of , and the house of C. D., on the line of the present highway, called the straight road, and being of the width of four rods, and also to ascertain the compen- sation and damages of the town of for the same, will meet, pursuant to an order made by Hon. J. P. H., County Judge of county, at on the day of ,18 , at o'clock in the noon, to ascertain such damages and compensa- tion. By order of the Board of Directors. S. G., Secretary 1 If the jury are to assess the damages both of the town and private individuals, it should be mentioned in the notice. CHAPTER XXXV. POOR LAWS. PRACTICAL REMARKS. 1. The father, mother, and children, Trho are of suflScient ability, of any poor person who is blind, old, lame, impotent, or decrepit, so as to be unable to maintain himself, must, at their own charge, re- lieve and maintain such poor person, in such manner as shall be ap- proved by the Overseers of the Poor of the town; and upon the failure so to do, such Overseers may apply to the Court of Sessions of the county, to compel such relief i 2. Whenever the father, or mother, being a widow, or living sepa- rate from her husband, shall abscond from their children, or a hus- band from his wife, leaving any of them chargeable, or likely to be- come chargeable, upon the public, for support, the Overseers of the Poor may apply to any two Justices of the Peace of any county in which any estate, real or personal, of the said father, motier, or hus- band, may be situated, for a warrant to seize the same. In those counties where all the Poor are a charge upon the county, the Su- perintendents of the Poor have the same powers as Overseers of the Poor in respect to compelling relatives to maintain paupers, and the seizure of the property of any parent absconding and abandoning his family.2 3. Every person who is blind, lame, old, sick, impotent, or decre Eit, or, in any other way disabled, or enfeebled, so as to be unable bj is work to maintain himself, must be maintained by the coimty or town in which he may be.^ UR.S. (3dea.,)782,§l.elBeq.;7Cowen, I "IR. S. (3ded.,)783, §8, et sen. ; Id., 784, 235. ■■ ' U 13: 21 Wendell, 181. 'IR. S. (3ded.,)784, 514. POOR uiws. 471 4. Three County Superintendents of the Poor are chosen at the annual November election, in each county in this State, except the city and county of New York, — one Superintendent being annually elected, — to serve for three years from the first day of January next after such election. The Board of Supervisors of any county may, however, at any annual meeting, direct only one Superintendent to be elected, who will hold his office for three years.' 5. Every person elected to the office of County Superintendent of the Poor, must, before the first day of January succeeding his elec- tion, take the oath of office, and execute a bond, conditioned as in § 847, to the Supervisors of the county, in such penalty, and with two or more sufficient sureties, as the board may direct and approve. The bond, with the approbation of the board indorsed by their clerk, is to be filed in the office of the County Clerk. In the recess of the board, the sureties may be approved by the County Clerk." 6. The County Superintendents constitute a corporation, by the name of the Superintendents of the Poor of the county in and for which they are so elected, and have the general supervision and con- trol of the relief and support of the poor in such county. They are authorized to audit and settle aU accounts, and to draw from time to time on the County Treasurer for all necessary expenses incurred in the discharge of their duties, and are required to account therefor, to the Board of Supervisors at their annual meeting.' T. It is the duty of the Superintendents of the Poor of each county, during the month of December in each year, to report to the Secretary of State, the number of paupers relieved, or supported, in such county, the preceding year, with the sex, and native country, of each pauper, and the expense of their support or maintenance.* 8. In those counties where all the poor are not a county charge, the Supervisors of the respective towns are required to report to the Clerk of the Board of Supervisors, within fifteen days after the accounts of the Overseers have been settled by the Board of Town Auditors, an abstract of all such accounts. These abstracts are to he delivered by the Clerk of the Board of Supervisors to the County Superintendents, to be included by them in their report to the Secre- tary of State.' 9. Every person of full age, who has been a resident and inhabi- tant of any town, for one year, and the members of his family who have not gained a separate settlement, wUl be deemed settled in such town, so far as the provisions of law. relative to the support of the poor are concerned.' I Laws of 1847, chap. 498; Laws of 1849, 1 292; 10 Wend., 612; 4 Hill,S53; 8 Paige,409. chap. 116. < 1 R. S. (3d ed.,J 798, {.81 ; Laws of 1842, s Laws of 1848, chap. 327 ; Laws of 1850, chap. 214 ; Laws of 1349, chap. 100. chap. 12. ^ SIR. S. (3d 8d.;)799, § §80; 86. 3 1 R. S. (3d ed.,) 785, § 18, et seq ; Laws MRS. (3d id;,) 788, « 33 • LaWB of 1830, of 1831, chap. 277; Laws of 1832, chap. 26, | chap. 320. 472 NEW clbbjk's assistant. 10. The electors of each town in this State, except in the counties of Montgomery, Kings and New York, have the power at their annual town meeting, to determine whether they will choose one or two Overseers of the Poor, and the number determined upon will be the number to be elected. Such overseers have the discretionary right to expend a sum not exceeding ten dollars, for the relief of one poor person or family, without any order from a Justice of the Peace there- for.' 11. The Overseers of the Poor in the several towns in the county of Livingston, may reheve poor persons within their respective towns, previous to their removal to the county house, but at the expense of such towns. The names of the persons so relieved must be entered in a book, which is to be laid before the Town Auditors at the time of auditing the accounts of such Overseers. The foregoing provisions may be extended to any county in the State, provided the Board of Supervisors, by resolution, declare their intention to adopt them." 12. It is not lawful for any officer whose duty it is to provide for the maintenance, care, or support, of indigent persons, at public ex- pense, to put up at auction the keeping, care, and maintenance, of such person, to the lowest bidder ; and any contract so made with a bidder will be absolutely void.' 13. All idle persons, who, not having any visible means to main- tain themselves, live without employment; all persons wandering abroad, and lodging in taverns, groceries, beer-houses, out-houses, market places, sheds, or bams, and not giving a good account of themselves ; all persons wandering abroad and begging, or who go about from door to door, or place themselves in the streets, highways, passages, or other public places, to beg or receive alms, are to be deemed vagrants, and may be taken before a magistrate, to be com- mitted to the county poor house, if proper objects for relief ; or, if otherwise, to the county jail. Children found begging are to be sent to the poor house, and may be bound out by the Superinten- dents, or Overseers of the poor, or Commissioners of the Alms house.' 14. If the committee, or the relatives of a lunatic or mad person, refuse or neglect to confine and maintain such person, the Overseers of the Poor may apply to any two Justices of the Peace of the city, or town, where such lunatic shall be found, for a warrant to appre- hend and confine such person.' 15. Overseers of the Poor may designate and describe any person whom they discover to be a habitual drunkard, in writing, and by written notice require every person dealing in spirituous liquors, or • Laws oflMS, chap. ISO. | » Laws of 1848. chap. 176. > Laws of 1845, chap. 334 ; Laws of 1846, ! * 1, R. S. (3d ed.,) 802, S 1, et seq. •hap. 243. I ' 1 K' S. (3d ed.,) 805, 9 1, ec soq. POOR LAWS. 41'8 any other person, not to give or sell spirituous liquors to such drunk- ard.' 16. If any -woman be delivered of a bastard child, which shall be chargeable, or likely to become chargeable, to any county, city, or town ; or be pregnant of a child likely to be born a bastard, and to become so chargeable, the Superintendents of the Poor of the county, or juiy of them, or the Overseers of the Poor of the town, or any ot them, are required to apply to some Justice of the Peace, to inquire into the facts and circumstances of the case. Superintendents of the Poor may compromise with, and discharge, putative fathers of bas- tards, upon such terms as they may think to be just. When any such compromise is made, the mother may receive the money, on giving security for the maintenance of the ohild.' FOEMS § 847. Bond of County Superintendent. Khow all men by these presents : That we, Gr. H., C. D., and E. F., of, &c., are held and firmly bound unto the Supervisors of the county of , State of , in the penal sum of dollars, to be paid to the said Supervisors, for which payment weU and truly to be made, we bind ourselves, our, and each of our heirs, executors and administi:ators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , A. D. 18 . Whereas, the above bounden G. H. has been duly elected to the office of County Superintendent of the Poor for the county of , aforesaid, to serve for the term of three years from the first day of January, A. D. 18 : Now, therefore, if the said G. H. shall faithfully execute the duties of his office, and shall pay, according to law, aU moneys which shaU come to his hands, as Superintendent of the Poor, and render a just and true account thereof to the Board of Supervisors, then the above obligation to be void ; else to remain in full force. Signed and sealed in ) G. H. [l. s. presence of >■ C. D. [l. s.' A. M. ) E. F. [l. s.] The sureties in the above bond were duly approved by the Board of Supervisors, this day of , 18 . D. M., Clerk of the Board. ' 1 R. S. (3d ed.,) 817, 5 1, et seq. I chap. 26 ; Laws of 1838, chap. 202 j 10 John- • 1 R. S. (3d ed.,) 823, § 6; Laws of 1832, | son, 93; 3 Hill, 116. 474 NEW clerk's assistant. § 848. Application to Compel a Person to support a Poor Relative. To the Court of Sessions of tie County of : The application of the undersigned, E. F., Overseer of the Poor ol the town of , in said county, respectfully represents : That A, B., a poor person, who is blind, \or, lame, old, impotent, or decrepit, OS the case may 6e,] so as to be unable by work to maintain himself, \or, herself,] is in the said town ; that C. B., who resides at , in the said county, is the father of the said A. B., and has failed, at his own charge, to relieve and maintain the said A. B. in such man- ner as has been approved by the imdersigned: Wherefore, pursuant to the provisions of section 2, title 1, chapter 20, part 1, of the Ke- vised Statutes of the State of New York, the undersigned hereby ap- plies for an order to compel the said C. B., who is of sufficient ability, to relieve and maintain flie said A. B., in the manner to be in such order specified. Dated at the town of , this day of ,18. •E. F., Overseer of the Poor. § 849. Notice to Accompany the Foregoing Application.i ToC. B.: You wiU take notice, that On the day of , at ten o'clock in the forenoon, or as soon thereafter as a hearing can be had, the undersigned. Overseer of the Poor of the town of , will apply to the Court of Sessions of the county of , at the court house in the town of , in said county, for an order toacompel the relief applied for by the application, which will, at the time and' place above mentioned, be presented to the said court, and of which the annexed is a copy. Dated at , this day of , 18 . E. F., Overseer of the Poor. § 850. Affidavit of Service. County, ss: E. F., of the town of , in said county, being duly sworn, says, tha,t on the day of , he served a copy of the annexed notice and application, on C. B., therein named, by deliver- ing the same to him, [or, by leaving the same at his last place of resi- dence, with 0. P., a person of mature age.] Sworn to, before me, this ) E. F. day of ,18 . f Q. H., Justice, &c. 1 A copy of the application with the above notice, should be personally served on the person to whom it is directed, or be left at his last place of residence with some person of mature age. It will be borne in mind, that in those counties where all the poor are a county charge, the application, (S 848,) should be made by a Coimty Superintendent and the forioa from § 848 to § 864, may be varied for the purpose. POOR LAWS. 476 § 851. Warrant to Seize the Goods of an Absconding Father, Hushand, or Mother. County, ss: To E. F., Overseer of the Poor of the Town of , in said county : It appearing to us, two of the Justices of the Peace of said coun- ty, as well by the application and representation to us made by you, the said Overseer, as upon due proof of the facts before us made, that A. B., late of said town, has absconded from his wife and chil- dren, leaving the said wife and children chargeable [or, likely to be- come chargeable] to the public for support; and that the said A. B. has some estate, real or personal, in said county, whereby the public may be wholly or in part indemnified against said charge ; We there- fore authorize you, the said Overseer of the Poor, to take and seize the goods, chattels, effects, things in action, and the lands and tene- ments of the said A B., wherever the same may be found in said county : And you wUl, immediately upon such seizure, make an inven- tory of the property by you taken, and return the same, together with your proceedings, to the next Court of Sessions of said ooimty. Given under our hands, in the town of , this day °f '18 • g;H- 1 Justices. § 852. Return of Overseer to the Foregoing Warrant. County, ss. : To the Court of Sessions of said County : The undersigned, to whom the annexed warrant is addressed, on the day of , 18 , ia the coxmty of , therein mentioned, seized, by virtue of the said warrant, the property of which an inventory is hereunto annexed; and the proceedings of the undersigned, subsequent to the said seizure, are as follows : ptote the proceedings particiiiarly.'\ AU which is herewith respectfully re- turned. Dated, &c., [as in § 848.] § 853. Bond to he Given by Party where Property has been Seized.\ 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 » Upon ihe eiecution of the bond and approval of the security, by any two Justices of tUe town, the warrant must be discharged, and the property restored. *7(J NEW clekk's assistant. firmly bound unto E. R, Overseer of the Poor of the town of , in the sum of dollars, for the payment whereof to the said Overseer, or his successor in office, we bind ourselves, our heirs, ex- ecutors and administrators, jointly and severally, firmly by these presents. Scaled with our seals, and dated at , this day of . , 18 . The condition of this obligation is such, that whereas the said Over- seer of the Poor lately seized the property of the said A. B., under a warrant issued by Gr. 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 liis wife and children, leaving them chargeable [or, likely to become chargeable] upon the public for support ; and the said A. B. having returned, and being desirous of having his property so taken restored to him : Now, therefore, if the said wife and children so abandoned shall not become chargeable either to said town or county, then this obligation is to be void ; otherwise of force. Sealed and delivered, and the security 1 A. B. [l. s.] approved, by and before us, two of >■ 0. D. [l. b.J the Justices of the town of . ) a' m'' [• Justices. § 854. Order to Discharge the Warrant, and to Restore Property. County, ss: To E. F., Overseer 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 tenements, of A. B., upon proof that he had absconded from his wife and children, leaving them chargeable to the public for support : And whereas, the said A. B. has returned, and now supports his wife and children so adandoned, \or, has given security to the Overseer of the Poor, satisfactory to us, that his said wife and children shall not become chargeable either to said town or county :] 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 Iuhl Given, &c., \as in § 861.] POOR LAWS. 477 § 855. Notice from one Town to another, in a County where the Towns are Liable to Support their own Poor, requiring the Overseer of the Town in which the Pauper has a Residence, to Provide for his Support} Cotmty, ss: To E. F., Overseer of the Poor of the Town of , in said county : You are hereby notified, that A. B., a pauper, who has gained a settlement in your town, to which he belongs, is in the town of , in said county, and is supported at the expense of the said town of , for which the undersigned is Overseer : You are there- fore required to provide for the relief and support of the said pauper. Dated at , this day of , 18 . R R, Overseer of the Poor of the Town of § 856. Notice that the Allegation of Settlement will be Contested. County, ss: To R. F., Overseer of the Poor of the town of , in said county : You will take notice, that the undersigned, Overseer of the Poor of the town of , in said county, will appear before the Su- perintendents of the Poor of the said county, at the poor house, \or, as the case may be,'\ on the day of , at ten o'clock in the forenoon, to contest the alledged settlement of A. B., a pauper, as set forth in your notice of the instant in y c, [c Dated, Every case in which a certificate is granted must be reported to the hoard, who may, at their next meeting, affirm or annul it. Notice of the hearing should be served on the GTep. eeer not less than twenty days previous thereto ; and the final decision of the Superintendents is to be entered and filed as specified in the note to % 858. 480 NEW clerk's assistant. will affirm or annul the certificate given by Q. H., one of the Tinder- Bigned, on the day of , 18 , declaring that the said A. B. was chargeable upon the county. Given, &c., [ 3 Hill, 262. <3HiU. 262. sat ■Wenden,325; 3 Hill, 652; 6Id., 107, 137. 8 9 Johnson, 163 ; 6 Hill, 101. '2R. S. (3d ed.,] 194, § 6, et seq. ; 6 Wen- dell, 461 ; 10 Id., 436 ; 13 Id., 481 ; 16 Id., 25, 28; 2 Hill, 485; 5 Id., 107. POWERS OF ATTOENEY. 603 9. It is not necessary that a letter of attorney to convey land should be recorded ; though when duly proved or acknowledged, in the same manner as conveyances of real estate, it may be so recorded. When such letter of attorney has been recorded, the instrument re- voking it must also be recorded, in the same office.' 10. When any married woman residing out of this State, unites with her husband in the execution of a power of attorney to convey real estate, she must acknowledge such execution, in the same man- ner as conveyances executed by married women residing out of the State." 11. When a person has the power to do an act, in his own right, he may delegate it to an attorney ; but an attorney cannot delegate his authority to a substitute, unless expressly authorized so to do. Whenever a substitute is regularly appointed, he must act in the name of the principal. 12. The authority of an attorney ceases when it is withdrawn by the principal ; but where the letter of attorney forms part of a con- tract, and is security for money, or for the performance of any act which is considered valuable, it will be deemed irrevocable in law.' 13. The revocation of a letter of attorney takes effect, as to the attorney, from the time it is communicated to him ; and as to third persons, from the time they have notice of it 14. If a power of attorney is to be used in a different State or Territory from that in which the principal resides, it should be duly acknowledged or proved. Where the attorney resides, or is to tran- sact business in a foreign country, the acknowledgment should be made before a Notary. FOEMS. § 913. General Form of Power of Attorney.^ Know all men by these presents : That I, A. B., of , in the county of , and State of New York, have made, consti- tuted and appointed, and by these presents do make, constitute and appoint, C. D., of, &o., my true and lawful attorney, for me, and in my name, place, and stead, *[se< forth the subject matter of the power, "] giving and granting unto my said attorney, full power and authority, to do and perform all and every act and thing whatsoever. '2R. S. C3ded.04r, S§45,46; 10 Paige, 346. a 2 R. S. (3d ed.,) 47, § 47 ; Laws of 1835, chap. 275. sllJolmson,47; 12 Id., 343; 6Cowen,489. * For different forme of , acknowledgments, to accompany powers of attorney, wHen ne- ceseary, see Chapter 1. 504 NEW clerk's assistant. reqviisite and necessary to be done, in and about the premises, as fuUy, to all intents and purposes, as I might or could do if personally- present, with full power of substitution and revocation, hereby rati- fying and confirming all that my said attorney, or his substitute, shall lawfully do, or cause to be done, by virtue thereof. In witness whereof, I have hereunto set my hand and seal, the day of , in the year one thousand eight hundred and Sealed and delivered in ) A- B. [i» s.] the presence of f G. H. § 914. Power of Attorney to Collect Debts. Know all men by these presents, &c. : [as m § 913, to the *, and then add :] and to my use, to ask, demand, sue for, collect and re- ceive, all such sums of money, debts, rents, dues, accounts, and other demands whatsoever, wliich are or shall be due, owing, payable and belonging, to me, or detained from me, in any manner whatsoever, by E. F., of, (fee, his heirs, executors and administrators, or any of them, [or, by any person or persons residing or being in the State of ;] giving and granting imto my said attorney, &c., \_as in § 913, to the ervd.'] § 915. Power to Collect Rents. Know all men by these presents, (fee. ; [as in § 913, to the *, and then add:^ and for my use, to ask, demand, [insert, distrain for, if necessary,^ collect and receive, all such rents, and arrears of rent, as now are or may be, or shall hereafter grow, due, or owing to me, from E. F., R F., and L. M., of, (fee, or any of them, as tenants or occupiers of any lands, tenements, or hereditaments, belonging to or claimed by me, situate La the county of , in the State of , or which may be due from, or payable by, any other person or persons whomsoever, as tenants, occupiers, lessees, or assignees, of any term or terms, of such lands, tenements, or heredita- ments, or any of them, or any part or parcel of them ; and upon receipt thereof, to give proper acquittances and suJBficient discharge thereof ; giving and granting unto my said attorney, (fee, [as in, § 913, to the end.] « § 916. Power to Receive a Legacy. Know all men by these presents : That whereas, L. M., late of , deceased, by his last will and testament, did gire and POWERS OP ATTORNET. 605 bequeath unto me, A. B., of, 8 Paige, 229. 510 NEW clerk's assistant. where the party executing it has a present interest, or a present right to take effect in future; and it must be deUvered to the witness hun- self, or to a third person, for the use of the witness, before his com- petency will be deemed to have been restored.' FORMS. § 925. General Form of Beceipt on Account. 150. Albany, May 1, 1847. Received of C. D. fifty dollars, to apply on account A.B. § 926. Beceipt in FvB. $110 10. Albany, May 1, 184'i. Received of C. D. one hundred ten dollars and ten cents, in fuU of all demands against him. A. B. § 927. Beceipt for Money paid hy Third Person. $100. Albany, May 1, 1847. Received of C. D., by the hand of E. F., one hundred dollars, to apply on account of said C. D. A. B. § 928. Beceipt for Money on Bond. $200. Albany, May 1, 1847. Received of 0. D. two hundred dollars, to apply on his bond, dated the day of . 18 , bemg the same sum this day in- dorsed on said bond. A. B. § 929. Beceipt for Interest Money. $140. Albany, May 1, 1847. Received of 0. D. one hundred forty dollars, being the annual in- terest due on his bond, dated the day of ,18 , given to me, \or, to E. F.,] and conditioned for the payment of the sum of two thousand dollars, in three years from date, with annual interest. A, B. » 2 Johnson, 170 ; 9 Id., 123 ; 4 Hill, 256. BEOEIPT AND RELEASE. 611 § 930. Receipt to he Indoned on a Bond or Contract. $140. Albany, May 1, 1847. Eeoeived of C. D. one hundred forty dollars, being the annual m- terest due on the within bond, and the same sum this day receipted by me to the said C. D. A. B. § 931. Release of all Demands. Khow all men by these presents : That I, A. B., of the of , for and in consideration of the sum of dollars, to me in hand paid by C. D., of , have remised, released, and forever discharged, and by these presents do, for myself, my heirs, execijtors, administrators and assigns, remise, release, and for- ever discharge, the said C. D4 his heirs, executors and administrators, of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, claims and de- mands, whatsoever, in law or in equity, which I ever had, or now have, or wliich I or my heirs, executors, administrators, or assigns, hereafter can, shall, or may have, by reason of 'any matter, cause, or thing, whatsoever, from the beginning of the world to the date of these presents.* In witness whereof, I have hereunto put my hand and seal, this day of , one thousand eight hundred and In p^es^nce of > ^^ j-^ ^ j § 932. Special Release. Know all men, &c., [as in § 931, to the *, and then add:"] arising out of any dealings, or transactions, between myself and the said C. D., at my store in the city of In witness, &c., \as in § 931.] § 933. Release hy Creditor Named in an Assignment. Ejiow all men, &c., [as in § 931, to the *, and then add:'\ saving and excepting, however, and without prejudice to, all my righte, reme- dies, claims and demands, and the rights, remedies, claims and de- mands, of my heirs, executors, administrators and assigns, under a certain deed of trust, bearing even date herewith, and made and exe- cuted by the said C. D. to E. R, upon the trusts therein expressed and declared. In witness, (fee, [as in § 931.] 512 NEW clerk's assistant. § 934. Release of Part of Mortgaged Premises} This indenture, made this day of , in the year > between A. B., of, &c., and C. D., of, &c., witnesseth : That whereas, the said C. D., by his indenture of mortgage, bearing date the day of , A. D. 18 , did, for the consideration and for the purposes therein mentioned, convey to the said A. B. [or, to one E. F., by mortgage duly assigned to the said A. B.,] certain lands in aforesaid, and of which the lands hereinafter described are part and parcel ; and the said C. D., on the day of the date hereof, has paid unto the said A. B. the sum of dollars, being part of the money secured by the mortgage aforesaid, as therein specified, on which payment the said A. B. hath agreed [or, and the said A. B., at the request of the said C. D., hath agreed] to release to the said C. D., his heirs and assigns, the lands hereinafter described, and to take and accept the residue of the said mortgaged premises as his security for the payment of the moneys remaining unpaid on the said mortgage: Now, therefore, the said A. B., in consideration of the premises, doth hereby grant, release, assign and make over, to the said C. D., and to his heirs and assigns, all that part of the said mortgaged lands, bounded and described as follows, viz : [give de- scription :'\ with the hereditaments and appurtenances thereunto be- longing, or in any wise appertaining : To have and to hold the lands and premises hereby released and conveyed, to the said C. D., his heirs and assigns, to his and their only proper use and behoof forever, free, cleai*, and discharged of and from the lien of the said mortgage. In witness whereof, the said A. B. hath hereunto set his hand and seal, the day and year above written. Sealed and delivered ) A. B. [l. s.J in presence of J G. H. § 935. Release of Land hy a Judgment Creditor* In Court A. B. -i against > Judgment rendered the day of , CD. ) 18 , in the Court, in the county of : [or, before C. C, Esq., a Justice of the Peace in and for county.] Judgment perfected and docketed in County Clerk's office, the day of , 18 : [or. Transcript filed and judgment docketed in County Clerk's office, tlie day of , 18 .] ■ ' — '^ ■ ' . I— . j I ' A release of a lien on real estate, by morlgasc or judgment, should be acknowledgedi and recorded in the couniy where the premises ore silualed. sSeenoteto§9^. RECEIPT AND RELEASE. 613 In consideration of dollars, to me in hand paid, the receipt W'liercof is aclfnowledged, 1 do liereby reraise, release and discharge, the following described land and premises, to wit: [describe the pre- mises:] from all claim to, or interest in, the same, or any part thereof; which I ma}- have, under and by virtue of the above men- tioned judgment, and from all lien or incumbrance that has attached to the same by reason of the recovery of the said judgment, as free and clear, in all respects, as though said judgment had not been ren- dered. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . It Sealed and deUvered ) A. B. [l. s.] in presence of J G. H. § 936. Release of a Legacy. Know all men by these presents : That, whereas, A. B., of , in the county of , and State of , by his last will and testament in writing, bearing date the day of , A. D. 18 , did, among other legacies therein contained, give and be- queath unto me, C. D., of , in the county of , and State of , the sum, or legacy, of dollars, and of his said will and testament did make and constitute E. F. the sole ex- ecutor, [or, E. F. and G. H. joint executors :] Now, therefore, I, the said C. D., hereby acknowledge the receipt from the said E. R, ex- ecutor, [or, E. F. and G. H., executors,] as aforesaid, of the said sum, or legacy, of dollars, so given and bequeathed to mo as aforesaid, and do acquit, release and discharge, the said E. F. [or, E. F. and G. H.,] of and from all legacies, dues and demands what- soever, under or by virtue of the said last wUl and testament, or against, or out of, the estate of the said A. B. In witness, &c., [as in § 931.] § 937. Release from a Party to a Witness. Supreme Court. [or, Justice's Court A.B., \ A. B., 1 against \ against \ Before G. H., Esq.] CD. ) CD, ) For value received, I do hereby release E. F., a witness offered ^or, to be offered] by me, on the trial of this cause, of and from any claim or demand which I now, or may hereafter have, against hira, by reason of the determination of this suit, or any matter, either di- 33 614 tfsvr oleek's assistant. rectly or indirectly brought, or to be brougbt, in question, in fliis suit, either for or against me. And I do further release him from all demands connected with, or depending upon, the subject matter of this suit, or any part thereof, which I now or may hereafter have aigainst him. Ib witness, &o., [as in § 031.] § 938. Eelease/rom a WUness to a Party. %. Supreme Court. against V [or, as in § 937.] CD.) For value received, I do hereby release A. B., plaintiff in the above cause, of and from any claim or demand which I now, or may hereafter have, against him, by reason of the determination of this suit, or any matter, either directly or indirectly, brought or to be brought in question, in this suit, either for or against him. And I 4o further release him, &c., [as in § 937, to the end.'] CHAPTER XXXVni. SCHOOLS. PRACTICAL REMARKS. 1. Common Schools in the State of New York are free to all per- sons residing in the district over five and under twenty-one years of age ; and persons who are not residents may be admitted therein, with the consent, in writing, of the trustees, or a majority of them.' 2. The inhabitants of school districts entitled to vote at district meetings, when legally assembled, have power, by a majority of the votes of those present : To appoint a chairman for the time being ; to adjourn from time to time, as occasion may require ; to choose a District Clerk, three Trustees, a District Collector, and a Librarian, at the first meeting, and to supply vacancies whenever they occur ; to designate a site for a district school-house ; to lay such tax on the taxable inhabitants as the meeting shall deem sufficient to purchase or lease a suitable site for a school-house, and to build, hire, or pur- chase such school-house, and to keep the same in repair and furnish it with necessary fuel and appendages ; to designate sites for two or more school-houses for their district, and lay a tax in the same man- ner as above provided, with the consent of the Town Superintendent ; to levy a tax, not exceeding twenty dollars in any one year, for the purchase of maps, globes, black-boards and other school apparatus ; to vote a tax for the purchase of a book in which to record the pro- ceedings of the district ; whenever the site of their schQol-house has been legally changed, to direct the sale of the former site or lot, with the buildings and appurtenances ; in a district numbering more than fifty children, between the ages of five and sixteen years, and having over one hundred and twenty-five volimies in the district library, or munbering fifty children or less, between the above ages, and having ■> Laws of 1849, chap. MO 516 NEW clerk's assistant. over one hundred volumes, to appropriate the whole or any part of the library money belonging to the district for the current year, at a special meeting to be called for the purpose, to the purchase of maps, globes, black-boards, or other scientific apparatus for the use of the school ; to lay a tax, not exceeding ten dollars for each year, for the purchase of a district library, to consist of such books as the district may direct, and such further sum as they may deem necessary for the purchase of a book-case, — provided, however, that the intention to propose the tax be stated in the notice of the meeting ; with the consent of the Town Superintendent, to unite their library moneys with those of an adjoining district, or districts, and purchase a joint library fur the use of such districts, to be selected by the Trustees, or such person as they may designate ; to direct the public money going to the teachers, to be divided into not exceeding two portions for each year, one of which is to be assigned and applied by the Trustees to each term during which a school shall be kept in the dis- trict, for the payment of teachers' wages ; and to alter, repeal and modify, their proceedings from time to time, as occasion may re- quire.' 3. The amount of tax which may be voted for the purchase or lease of sites for the school-house, for repairs, fuel, furniture, and ap- pendages, is unUmited by law; but no tax for building, hiring, or purchasing a school-house, can exceed the sum of four hundred dol- lars, unless on the certificate of the Town Superintendent of the town in which the school-house is to be situated, that a larger sum, speci- fying the amount, is necessary ; in which case a sum may be raised not exceeding the amount so certified. In districts composed of parts of several towns, the certificate of a majority of the Town Superin- tendents of such towns will be necessary.'' 4. A majority of all the taxable inhabitants of any school district, to be ascertained by taking and recording the ayes and noes of such inhabitants attending at any annual, special, or adjourned school dis- trict meeting, may determine that a tax exceeding four hundred dol- lars, for building, hiring, or purchasing a school-house, be raised by installments; and it will then become the duty of the Trustees to raise the tax in accordance with such determination. The payment or collection of the last installment cannot be extended beyond five jrears from the time the original vote to raise the tax was taken ; and no vote to levy any sucli tax can be reconsidered, except at an ad- journed general or special meeting, to be held within thirty days thereafter, and the same majority will be requisite for a reconsidera- tion as was necessary to levy the tax." 5. The following are the qualifications of voters at district mecl- 1 l,iiW3 of 1347, chap. 430. 2 Laws ul'lcil", chap. 430; IS Johnson, 351 ; 5 Hill, 4G, > Laws or 1847, chap. 4d0. ecHooLS. 617 ings : The Toter must be a male, twenty-one years old, or upwards, and an actual resident of the district. In addition to the foregoing, he must possess one or other of the following qualifications : He must be entitled by law to hold land in this State, and must own or hire real property in the district, subject to taxation for school purposes — or he must be entitled to vote at town meetings of the town in which the district, or part of a district is situated, and must have paid a rate bill for teachers' wages in the district within one year pre- ceding, or must own, personally, property hable to be taxed for school purposes in the district, exceeding fifty dollars in value, exclusive of what is exempt from execution.' 6. The Town Superintendent of Common Schools is elected at the time, and in the manner, provided by law for the election of other town officers, and holds his office for two years, commencing on the first Monday of November succeeding his election. He is required to perform all the duties, and is subject to the restrictions and liabili- ties formerly imposed by law on Commissioners and Inspectors of common schools, in addition to the other powers and duties conferred and enjoined upon him. It is his duty, on or before the fii-st Mon- day of November succeeding his election, to execute to the Super- visor of his town, and file with the Town Clerk, a bond, with one or more sufficient sureties, to be approved by the Supervisor, in the penalty of double the amount of school money received from all sources during the preceding year ; and whenever the Supervisor is of the opinion that the security of the Town Superintendent is not sufficient for the protection of the pubhc, he may require further security. If the Town Superintendent fails to give such further security, witliin five days after the service of a written notice from the Supervisor upon him, his office will be vacant. A person appointed to fill a vacancy in the office of Town Superintendent, will hold his office, only till the first Monday of November, following the next annual town meeting, at which a successor to the incum- bent must be regularly chosen by the electors." 7. The Town Superintendent has the general supervision of the common schools in his town ; visits and inspects each school legally organized, at least twice a year, and oftener if, in his opinion, it be necessary; examines and hcenses teachers, and re-examines them and annuls their Hcenses whenever he thinks proper; receives and apportions the school moneys; regulates and alters school districts, (in conjunction with the Supervisor and Town Clerk, when required by the Trustees of any district interested ;) prosecutes for, and col- ■ Laws of 1847, chap. 480. ' Laws uflSir, chap. 4S0; Laws of 1819, chap. 332; Laws of IS50, chap ISA. 516 NEW clerk's assistant. leots all fines, penalties and forfeitures ; and makes an annual report to the County Clerk, of the condition, &c., of common schools in his town. Vacancies in the office of Town Superintendent are to be filled by any three Justices of the Peace, of the same town, by war- rant under their hands and seals.' 8. Town Superintendents are to be deemed qualified teachers, while they remain in office. They have power, also, to administer oaths in all cases relating to school afiairs and controversies, but they cannot charge any fees therefor.' 9. The Town Clerk of a town is required to act as the clerk of the Town Superintendent He receives all the estimates and appor- tionments of school money, and records the same; and receives, keeps, and files ia his office, all reports made to the Town Superin- tendent by the Trustees of School Districts, and, when required, all the books and papers belonging to the Town Superintendent He also notifies the Town Superintendent to make his annual report, wnen informed by the County Clerk that such report has not been made.' 10. Trustees of school districts are to be chosen by the inhabi- tants of the district entitled to vote, at their first meeting, and there- after at any annual or special meeting legally convened, whenever a vacancy occurs. Each district elects one Trustee annually, who serves for three years, and until a successor be elected or appointed. Any person elected to fiU a vacancy, holds the office only for the unexpired term. Where the office erf Trustee becomes vacant by the death, refusal to serve, removal out of the district, or incapacity of the officer, and the vacancy is not supplied by a district meeting within one month thereafter, the Town Superintendent of the town may appoint any person residing in the district to fiU the vacancy. The duties of Trustees are: To receive and apply the public money; to call annual and special meetings ; to assess and provide for the collection of district taxes ; to purchase and lease sites ; to build, hire and purchase school-houses, repair and furnish them, and attend to the custody and safe-keeping of district property ; to sell and execute conveyances of sites and houses when no longer required ; to employ teachers and pay them ; to make out and attend to the collection of tax lists ; and account annually to the district, and report to the Town Superintendent. Trustees are also required to pay over all balances in their hands, to their successors ; and the latter are Uable for all lawful contracts made by their predecessors. Joint Trustees are responsible for their own acts, and not for the acts of each otker, unless by express agreement; they are not answerable for mistakes of law, or mere errors of judgment, without any fraud or malice; ' Laws of 1847, chap. 480 ; 1 Denio, Ml I ' Laws of 1817, chap, 480. > Laws of 1849, chap. 382 | BOBOOLS. 614 but they are liable for fraud or neglect A contract made by aU the Trustees, and signed by two, is binding ; and where any official act is performed by two, the presence of the third wiU be presumed, until the contrary be shown.' 11. The Trustees of each school district are required, within thirty, and not lessjthan fifteen days, preceding the time for holding the annual district meeting in each year, to prepare an estimate of the amount of money necessary to be raised in the district for the ensuing year, for the payment of the debts and expenses to be in- curred by said district for fuel, furniture, school apparatus, repairs, and insurance of school-house, contingent expenses, and teachers' wages, exclusive of the public money, and the money required hy law to be raised by the counties and towns, and the income of local funds, and to cause printed or written notices thereof, to be posted for two weeks previous to said meeting upon the school-house door, and in three or more of the most public places in said district The Trustees are to present this estimate to the school meeting, and the voters present, of full age, residents of the district, and entitled to hold land in the State , who own' or lease real property in the dis- trict hable to taxation for school purposes, — or who have paid any district tax (not rate bill) within two years preceding, — or who own any personal property, liable to be taxed for school purposes, in the district, exceeding fifty dollars in value, exclusive of such as is ex- empt from execution, — and no others, may vote upon such estimate, for each item separately. So much of the estimate as shall be ap- proved by a majority of the voters present^ must be levied and raised by tax on the district, in the same manner as other district taxes. If the Trustees neglect to prepare the estimate, or to give the notice required by law, the meeting may adjourn to such time as will enable them to prepare the estimate, and give the notice. If the voters of any district, at their annual meeting, refuse or neglect to raise by tax a sum of money, which added to the public money, and the money raised by the county and town, will support a school for at least four months in the year, keep the school-house in repair, and provide the necessary fuel, it will be the duty of the Trustees to repair the school-house, purchase the necessary fuel, employ a teacher for four months, and levy and collect the additional expense from the district, in the same manner as other district taxes are levied and collected." 12. It is the duty of the Board of Supervisors of every county, at their annual meeting, to cause to be levied and collected from thefr respective coimties, in the same manner as county taxes, a sum equal to the amount of State school moneys apportioned to sueh 'Laws of 1847, chap. 480; 9 Johnson, 380 ; I « Laws of 1^», chao. 140; li, 11 Id., 114; 7 Wendell, 181; 9 Id., 17; 4 404. Bill, 168; lDemo,214. 1 620 HEW cleek's assistant county, and to apporfon the same as the State moneys are appor- tioned; also, to levy and collect from each of the towns in their re- spective counties, in the same manner as other town taxes, a sum equal to the amount of State school moneys apportioned to snch towns respectively.' 13. Every district tax must be assessed by the Trustees, the tax list made out, and the proper warrant attached, within thirty days after the district meeting at which the tax was voted. Immediately after the expiration of the thirty days, the tax list and warrant must be dehvered to the Collector.^ 14. Where no provision, by tax or otherwise, is made for the necessary fuel for the school in a district, the Trustees may procure it, and levy a tax upon the inhabitants to pay for the same. The Trustees may also expend a sum, not exceeding ten dollars in any one year, in the repair of the school-house, and collect the same as a Separate tax, or add it to any other tax to be collected.3 15. District Clerks are required to record the proceedings of the district ; to enter in the district book true copies of all reports made by the Trustees to the Town Superintendent; to give notice of special meetings called by the Trustees, to each inhabitant in the district liable to pay taxes, at least five days before the meeting, by reading the notice in the hearing of such inhabitant, or in case of his absence from home, by lea^'ing a copy thereof, or of so much thereof as relates to the time and place of meeting, at the place of his abode, at least six days before the time of the meeting ; to affix a notice in writing of the time and place for any adjourned district meeting, when adjourned over one month, in at least four of the most pubUo places in the district, at least five days before the meeting ; to give the like notice of every annual meeting ; to keep and preserve all books, records and papers, belonging to his office, and dehver them to his successor; within ten days after each annual or special meeting for the election of. officers, to forward to the Town Clerk the names of the persons elected to the several offices ; and to receive and keep the District School Journal, and cause the same to be bound.* 16. It is the duty of the Collector of a school district, to collect the moneys reqmred by all warrants placed in his hands, within the time required therein, and to pay the same over to the Trustees, taking their receipt therefor. When reqiiired by the Trustees, the Collector must execute a bond with sureties, one or more, to be approved by them, in double the amount of any tax list to be collected by him. He has the same powers as a Collector of a town, authorized to collect town and county taxes, and may, in like manner, seize any property under his warrant, except the arms and accoutrements of a 1 Laws of 1849, chap. 140. I * Laws of 1841, chap. 2B0; Laws of 1847, •Lawsofl849, chap. 382. chap. 480; 6 Wendell, 486: 11 Id., 604; 6 • Laws of 1849, chap. 382. | Hill, 546 : 1 Denio, 214 ; 3 Id., 526. SCHOOLS. 621 person enrolled in tlie militia, required by act of Congress to be kept by such person. The jurisdiction of a Collector.is unlimited, and extends to any otlier district or town in the same county, or in any other county where the district is a joint district, and composed of territory from adjoining counties.' IV. The Librarian of a district has charge of the libraiy thereof, subject to the directions and instructions of the Trustees, to whom he is amenable, and by whom he may be removed for wilful disobedience of their directions, or for wilful neglect of duty. If the office of Librarian be vacant, the District Clerk discharges the duties.' 18. The Town Superintendent may accept the resignation of a school district officer, for sufficient cause. Vacancies, except in the office of Trustee, are to be fiUed by the Trustees, or a majority of them; the persons so appointed will hold their offices until the next annual meeting, and until others aie elected in their places.^ 1 9. The term of office of school district officers expires at the time of the annual meeting, and they do not hold over tUl others are elected to fill their places.* 20. The apportionment of a school tax must be made by all the Trustees, or by two, the other being present, otherwise the warrant will be void.' 21. Want of notice of any annual or special district school meeting will not invalidate the proceedings, except where the omission was wilful and fraudulent. The annual meeting, however, must be held at the time and place fixed at the previous annual meeting." 22. Whenever a suit is commenced against the Trustees of a school district, in consequence of any official act by them performed, in pursuance of, and by the direction of such district, on the final determination thereof, or whenever, after the final determination of a suit commenced by or against any Trustees or other officers of a school district, a majority of the taxable inhabitants of any school district so determine, it will be the duty of the Trustees to ascertain the amount of all costs, charges and expenses paid by such officer, in the following manner, and to assess and collect the same as other district taxes are assessed and collected : The officer must serve a copy of his account, verified by oath or affirmation, upon the Trustees, together with a notice that on a certain day, to be therein specified, he will present such account to the Board of Supervisors of the county. It is the duty of the officer on whom the notice, &c., is served, to attend at the time specified. The Board of Supervisors will examine the account, and may adjourn from time to time for that purpose. The account of the officer, with his oath, is prima fade 1 Laws of 1S47, chap. 480; 5 Wendell, 170 ; 1 Denio, 233,- 2 Id., 86. ' Laws of 1847, chap. 480. a Laws of 1847, chap. 480. i Laws of 1849, chap. 382. » 4 Denio, 12S. • Laws of 1847, chap. 4S0 ; 3 Denio, 526. 522 NEW clerk's assistant. evidence of its correctness. The Board may make an order directing the whole, or such part of the account as they think proper, excepting the same appears to have been occasioned by the wilful neglect or misconduct of the claimant, to be paid by the district "Within thirty days after service of a copy of the order on the Trustees, it is their duty to enter the same in the book of records of the district, and issue a warrant for the collection of the amount directed to be paid in the same manner as upon a tax voted by the district. The amount, when collected, is to be paid to the officer. This provision does not extend to suits for penalties, nor to suits or proceedings to enforce the decisions of the Superintendent." 23. Where two school districts are consolidated into one, the new district succeeds to all the rights of property of the old districts. When a district is annulled, the Town Superintendent of the town in which the school-house is located, is required to sell the property of the annulled district at public auction, notices of which are to be posted, at least five days previous to the sale, in three or more public places in the town, one of which must be in the annulled district The proceeds of the sale are to be first applied to the payment of the debts of the district and the residue thereof apportioned among the taxable inhabitants of such district according to their respective assessments on the last assessment roU of the town, or towns, within which the district is located." 24. Appeals may be made to the State Superintendent from any decision made by a school district meeting ; from any official act pro- ceeding, or decision, of a Town Superintendent, and from a refusal to discharge any daty imposed upon him by law, or the regulations of the State Superintendent ; from the decision, or act, of any officer reqxured to perform any duty under the Common School Law; from any act or decision of Trustees of school districts, in relation to the libraries or the books therein; and in cases of disputes betweea dis- tricts and their officers, or between different districts.' 25. The person aggrieved by the act complained of, only, can appeal. Appeals may be made by Trustees, in behalf of their districts, whenever they are agg-rieved. An appeal must be in writing, and signed by the appellant Where Trustees make an appeal, it must be signed by all, or a reason must be given for the omission, verified by the oath of the appellant, or of some other person acquainted with such reason. A copy of the appeal, duly verified, and of all the statements, maps and papers, intended to be presented in support of it must be served on the officers whose act or decision is complained of, or some one of them ; or, where a district is concerned, on the District Clerk, or one of the Trustees, within 'Laws of 1847,chap. 172; Laws of 1849, I ' Laws of 1847, chap. 480 1 11 Wendell, 90; ehap. 383. i and Regulations of the Stale Superintendent, a Laws of 1849, chap. 382. | SCHOOLS. C28 thirty days aftei the maMng the decision, or the performance of the act complained of, or within that time after the appellant had knowledge of such act or decision, unless some satisfactory excuse be rendered for the delay. 26. The paxty on whom the appeal is serred, must answer the same within ten days afer such service, either by concurring in the appellant's statement of facts, or by a separate answer. Such state- ment or answer, must be signed by all the Trustees, or other officers, whose act, or decision, is complained of, or, if this be omitted, a good reason, on oath, must be given therefor. Where the parties concur in a statement, no oath will be required ; but all facts, maps, or pa- pers, not concurred in, or agreed upon, and evidenced by their sig- natures on both sides, must be verilied by oath. All oaths required in cases of appeal, may be taken before any Judge of a Court of Record, Commissioner of Deeds, or Justices of the Peace. 27. A copy of the answer, and of all the statements, maps and papers, intended to be presented in support of it, must be served upon the appellants, or some one of them, within ten days after service of a copy of the appeal, unless further time be given by the State Su- perintendent ; but no replication nor rejoinder shall be allowed, except by permission of that officer, and in reference exclusively to matters arising on the answer which he may deem pertinent to the issue. Replications and rejoinders, when allowed, must be duly verified by oath, and copies thereof served on the opposite party. Proof or ad.- mission of the service of copies of the appeal, answer, and all papers intended to be presented in support thereof, or used on the hearing, must accompany the same. 28. When any proceeding of a district meeting is appealed from, and when the inhabitants of a district generally are interested in the matter of the appeal ; or, where an inhabitant might be an appellant, had the decision or proceeding been the reverse ; any one or more of such inhabitants may answer the appeal, with or without the Trustees. 29. Where an appeal has relation to the formation or alteration of a school district, it must be accompanied by a map, exhibiting the site of the school-house, the roads, the old and new lines of districts, the different lots, the particular location and distance from the school- houses of the persons aggrieved, and their relative distance, if there are two or more school-houses in question ; also a list of all the taxa- ble inhabitants in the district or territory to be affected by the ques- tion ; the valuation of the property, taken from the last assessment roll ; and the number of children between five and sixteen belonging to each person, distinguishing the districts to which they respectively belong. 30. When the copy of an appeal is served, all proceedings upon, or in continuation of, the act complained of, or consequent in anyway fi24 KEw cleek's assistant. upon such act, must be suspended, until the case is decided. And where the Town Superintendent, or the Trustees of a district, have money in their hands, which is the subject of dispute and appeal, they must retain such moneys to abide the event. 31. Whenever a decision is made by the State Superintendent, and communicated to the Town Superintendent, respecting the formation, division, or alteration of districts, the latter must cause the decision to be recorded in the office of the Town Clerk. All other decisions communicated to him, or to the Trustees of a district, are to be kept among the official papers of the Clerk of the town or district; and the District Clerk is required to record all such as come to his hands, in the district bodf kept by him. FORMS. § 939. Town Superintendent's Bond, with Approval. Know all men by these presents : That we, A. B., C. D., and E. F., of the the town of , in the county of , are held and firmly bound unto L. M., Esq., Supervisor of said town, in the penal sum of dollars, \double the amount of school money received from all sources during the preceding year,] to be paid to the said L. M. or his successor in office; to the which payment, well and truly to be made, we bind ourselves and our legal representatives, jointly and severally, firmly by these presents. Witness our hands and seals, this day of ,18. Whereas, the above bounden A. B. has been duly elected \or, ap- pointed] Town Superintendent of Common Schools for the said town of : Now, therefore, the condition of this obhgation is such, that if the said A. B. shall faithfully apply, and legally disburse, all the school money which may come into his hands dmiug his term of office as such Town Superintendent, and faithfully discharge all the duties of said office, then this obligation to be void ; else, to remain in full force. Signed, sealed and delivered, ) A. B. [l. s.] in presence of j C. D. "l. s.] G. H. E. F. [l. s.] I approve of C. D. and E. F., as sureties to the foregoing [or, within] bond. Dated the day of ,18 L. M., Supervisor of the Town of SCHOOLS. 525 § 940. Warrant of three JiKtices appointing Town Superintendent to fill a Vacancy.^ Town of , ss: Whereas, A. B., duly elected Town Superintendent of Common Schools of said town, at the annual town meeting held therein, on the day of , 18 , has neglected to execute the bond required by law ; [oj% has removed from siiid town ; or, has deceased ; or. Whereas, the bond executed by A. B., duly elected Town Super- intendent, (fee, has not been filed and approved in conformity to law;] by reason whereof, the said office of Town Superintendent has be- come vacant: Now, therefore, we, the undersigned, three of the Justices of the Peace of said town of , in pursuance of the statute in such case made and provided, do hereby appoint C. D. Town Superin- tendent of Common Schools of said town of , to hold the said office until a successor shall be duly elected or appointed. Given under our hands and seals, tliis day of 18 H. S. C. H. G. G. L. S. L. 8.' L.S. § 941. Notice to the Town Superintendent, to give Additional Security. To Mr. A. B., Town Superintendent of Common Schools of the Town of : You are hereby notified, that in my opinion, the security hereto- fore given by you is not sufficient for the full protection of the pub- lic against the loss of the school money, likely to be intrusted to you ; and you are tlicrefore required to furnish satisfactory security witliin five days after the receipt of this notice, otliervvise your office wiU become vacant Dated .the day of ,18 . Yours, &c., L. M., Supervisor of tlie Town of § 942. Resolution Creating a New District. At a meeting held for the purpose of forming .a new school district, in the town of , at the office of the Town Clerk, [or, house of E. T.,] in said town, on the day of , 18 : Pre- sent, A. B., Town Superintendent of Common Schools ;* Resolved, That a new school district be formed, to consist of the * Tlie .Justices making the appointment, must cause tlie warrant m l)c IbrtliwiLhlilcil in tUo office of llie Town Cleric, antl immeiliately give notice lo llie person uppoiiilcj. 626 NEW clerk's assistant. present districts number one and number two, [or, the present dis- trict number one, and part of district number two ; or, parts of districts number one and number two :] which said district shall be numbered , and shall be bounded as follows : [state the boundaries with as much precision as the case will admiti] The formation of the aforesaid district, involving an alteration of districts number one and number two, [or, as the case may 6e,] the consent of the Trustees of the said districts to such alteration has been presented to the Town Superintendent, and filed with the Town Clerk. [J^ such consent has not been given, make the follow- ing entry: The formation of the aforesaid district, involving an alte- ration of districts number one and number two, and the consent of the Trustees of district number one to such alteration not having been given, it is ordered that a notice in writing, of the said altera- tion, signed by the Town Superintendent, be served on one of the Trustees of the said district, by the Town Superintendent] S. G., Town Clerk of said town of , and Clerk of the Town Superintendent § 943. Consent of Trustees, to be Indorsed on a Copy of the Order} We hereby consent to the alterations made in district number , in the town of , by the order of which the within is a copy. Dated , the day of , 18 . G H 1 j^' j^'' f Trustees of District § 944. Notice to Trustees Not giving Consent, to he served with at Copy of the Order, on any one of the Trustees. The Trustees of district number , in the town of , will take notice, that an order was made this day by the Town Superintendent of common schools of the said town, of which the following [or, withm] is a copy, by which certain alterations in the said district are made, as wiU appear by the said order; and that < The consent of the Trustees should be given at a meeting of the whole, or of a maiority whenall have been notified to attend. Where an alteration of several districts is made at the same time,— the Trustees of some of the districts consenting thereto, and those of the others, withholding their consent,— the alteration taltes effect Immediately as to those districts fliB Trustees of which signify their consent. (3 Denio, 114.) SOHOOL& £2? such alterations ■will take eflfect after three months from the service of this notice. Dated , the day of , 18 . A. B., Town Superintendent of Common Schools of the town of . § 945. AcTcnowledgment of Service of the foregoing, to he Indorsed on a Copy. I, G. H., one of the Trustees of school district ntmiher , in the town of , hereby acknowledge due service of a no- tice and copy order, of which the within is a copy, this day of , 18 . G. R § 946. Notice of the First Meeting in a District, to Organize} To K F., a taxable inhabitant of District No. , m the Town of : The Town Superintendent of common schools of the tovm of , having by an order, of which the following is a copy, formed a new district in the said town, to be numbered , consisting of the ter- ritory particularly specified in the said order; you are hereby requi- red to notify every inhabitant of the said district qualified to vote at district meetings, to attend the first district meeting of the said district, which is hereby appointed to be held at the house of , in the said town, on the day of next, at six o'clock in the afternoon, by reading this notice in the hearing of each such inhabitant, or in case of his absence from home, by leaving a copy of this notice, or of so much thereof as relates to the time and place of such meeting, at least six days before the said time so appointed for the said meeting. Dated, &c. A. B., Tovm Superintendent of Common Schools, of the town of ' A ftopy of the order forming: the district, should be annexed to the aboTe, Thai notice is required to be ^iven witiUn twenty days after the formation of the district. If it bo neces- sary to give notice to the Trustees of iiiB alteration of a district, then the notice for the firs^ meeting should specify a day subsequent to the expiration of three months after the serTice of tlie notice on the Trustees, as the district cannot organize until after that time. The in- habitant serving the foregoing notice should keep a memorandum of the persons served with the same, specifying the time and the manner in which such service is made : and the memo- randum, certified by him, should be delivered to the chairman, or cleric, of the district meeting, and read, that it may be known whether all the voters have been notified. Thr original notice and return should b^ filed with the district Clerk. 628 KEW CLERK'S ASSISTANT. § 947. Notice of the Sale of a School-Home, dc, hy the Town Superintendent, where a District is annulled, and por- tions thereof annexed to other Districts. NOTICE. Notice is hereby given, that I shall sell at public auction, the school-house and other property belonging to the former School Dis- trict number , in the town of , at said school-house, \or, such place as the Town Superintendent may designate,'] on the day of next, \or, instant,] at o'clock in the noon ; said school district having been annulled according to law, and portions thereof annexed to other districts. Dated , the day of ,18 A. B., Town Superintendent of Common Schools of the Town of § 948. Apportionment of the Proceeds of the Sale of the Property belonging to an Annulled District. Apportionment of Proceeds of Sale op Property UELONOiNa to Annulled School District Number , in the Town of Town of , ss : School District Number , in said Town of . , having been annulled according to law, by my order dated on the day of ,18 , and the property of said district having been duly and regularly sold by me, at public auction, and the debts thereof paid out of the proceeds of such sale ; I do liereby make the following apportionment of the residue of such proceeds, among tlie taxable inhabitants of said annulled district, number , accord- ing to their respective assessments on the last assessment roll of the said town of : Names of Inhabitants. Amount apportioned to each. John Doe, Riciiut-d line, ic, Ac, Doll's. Cents. 25 1 01 UO Total Ani't. Dated, &c., \as in § 947.] § 949. Resolution for the Alteration of a District. At a meeting, I No. 01 children taught. No. ol' do. over 5 and under 16. in each district. I Dolls. I Cra. Ain't paid for teachers' wa- ges, besides |)ubhc moneys. No. of children between 5 and 10, taughi in colored schools. Dolls. Am't of public money rec'd from children atiending colored schools. I CIS. Am't paid for teachers* wa- ges, in colored schools, be- pides public money. [ No. ol limes visited by Town I Superintendent. I No. of pupils who have at- I tended less ihan 2 mo. I Two mo., and less ihan 4. i Four mo., and less ihan 6. 1 Six mo., and less than 8. I Eijrht mo., and less than 10. { Ten mo., and less ihan 12. I Twelve months. t No. of select and private j schools not incnrporaied. I No. of pupils attending, I No. of volumes in district I library. Dated at , tliis 1st day of July, A. D. 18 . A. B., Town Sup't of Common Scliools of the Town of • The animal report of the Town Superiniendent is to be made belwecn the firet dav of July and the first day of August in each year, and is to be dated on the fii-st day of July. It IS necessary for the Town Superintendent to include, also, in his report, the amount, if SCHOOLS. £33 § 954. List of Votes Taken, hy Ayes and Noes, to he Icept by the District Clerk} Names of Voiers. On change of Site of School House. On motion to build School House. On resolution to raise tax of 8 On resolution to raise tax for Apparatus. AYES. 1 HOES. AYES, i NOES. AYES. 1 NOES. AYES. ) NOES. C. D. E. F. G. H. R. T. O. P. 1 1 1 1 1 1 1 1 1 1 3 2 1 4 16 14 23 IS § 955. Form of Mirmtes of Proceedings of District Meetings, to bt kept by the Clerk. At a meeting of the legal voters of school district number , in the toivn of , held pursuant to adjournment, at , on the day of , 18 , [or, if it be an annual meet- ing, say : At an annual meeting of, &c., held pursuant to appoint- ment and public notice, at, &c, ; if a special meeting, say: At a special meeting of, &c., called by the Trustees of said district, and held pursuant to special notice, at, (fec.,J G. H. was chosen chairman, and C. D. was present as District Clerk; [or, if the Clerk is absent, say: E. F. was appointed Clerk pro tern., the District Clerk being absent]* Resolved, Unanimously, [or, by a majority of two-thirds of the voters present; or, by a majority of the votes of those present; or, as the case may 6«,] that, 1 R. S. (3il ed.,) 392, § 2 ; M., 398, 5§ 63, 54 ; Laws of 1838, cliap, 172: Law3 of 184a •bap. 238; 2 Hill, 369. > 1 R. S. (3d ed.,) 395, §§ 29.31. SUPERVISORS. 666 account with the Justices of the Peace and Town Clerk of the town, for the disbursement of all moneys received by him. 6. At every such accounting, the Justices and Town Clerk shall enter a certificate in the Supervisor's book of accounts, showing the state' of his accounts at the date of the certificate. 6. The Supervisor of each town shall attend the annual meeting of the Board of Supervisors of the county, and every adjourned or special meeting of such Board, of which he shall have notice. 7. He shall receive all accounts which may be presented to him against the town, and shall lay them before the Board of Supervisors al their next meeting. 8 . He shall also lay before the Board of Supervisors such copies of entries concerning moneys voted to be raised in his town, as shall be delivered to him by the Town Clerk. 9. Whenever the Supervisor of any town shall be required by the Surveyor General to cause a survey to be made of the bounds of his town, it shall be the duty of such Supervisor, within sixty days there- after, to cause such survey to be made, and to transmit by mail, or otherwise, a map and description thereof to the Surveyor General, under a penalty for refusal or neglect, of fifty dollars. The expense of such survey and map will be defrayed by the several towns, whose bounds either wholly or in part shall be described thereby ; such expense to be apportioned by the Board of Supervisors of the county.' 4. Besides these general duties enjoined upon the Supervisor, he is ex-officio a member and chairman of the Board of Excise of his town, and he is charged with various special duties in regard to highways, the poor laws, schools, and strays, all of which are pointed out in previous Chapters of this work devoted to those particular subjects. (See Chapters xvii, xxii, xxxv, zxxvm, and xl.) 5. The Supervisor is also a member of the Board of Town Audi- tors, and is clothed with certain powers under the law authorizing the erection of town houses. (See Chapters xliii and xliv.) 6. The official bonds of Commissioners of Highways, Town Super- intendents of Common Schools, Collectors, and sometimes Constable's instruments, are approved by the Supervisor. 7. The Supervisor, Town Clerk, and Assessors of a Town, are required to meet at sucTi place as may be appointed by the Super- visor, or in his absence, or in case of a vacancy in his office, by the Town Clerk, on the first Monday of July in each third year after the first selection has been made in a town, for the purpose of making a list of persons to serve as jurors. When assembled for that purpose, it is their duty to select from the names of those assessed on the last assessment rolls of the town, suitable persons to serve as jurors, in making which selection they are to take the names of such persons only as are — 1. Male inhabitants of the town, not exempt from serving on juries: 1 1 R. S. (3d ed.,) 399, S 1, et eeq. 566 NB-w ciekk's assistant. 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 belonging to them in their own right, to the amount of two hundred and fifty dollars, or who 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 ; or, if residents of either of the counties of Niagara, Erie, Chautauquo, Cattaraugus, Allegany, Genesee, Orleans, Monroe, Livingston, Jeflerson, Lewis, St. Lawrence, Steuben, or Frank- lin, who have been assessed on the last assessment roll of the town for land in their possession held under contract for the purchase thereof, upon which improvements owned by them have been made, to the value of one hundred and fifty dollars : 4. In the possession of their natural faculties, and not infirm or decrepit : 5. Free from all legal exceptions, of fair character, of approved integrity, of sound judgment, and well informed.' 8. Duplicate lists of the persons selected as jurors by the town officers before mentioned, with their respective occupations and places of residence, are to be made out and signed by such officers, or a majority of them ; and within ten days after the first Mondayi in July, one of the said lists must be transmitted to the County Clerk, and the other filed with the Town Clerk. The jurors thus selected serve for three years.^ 9. Grand jurors are annually selected by the Boards of Super- visors; but it is the custom for each Supervisor to present a list of those required from his town, with their respective occupations and places of residence, to the Clerk of the Board at an early day in the session. 10. The duties of Supervisors, in regard to the assessment and collection of taxes, are pointed out in Chapter xlii of this work. 11. The Supervisor, Assessors, and Town Clerk of a town, are required to meet on the first Monday of October in each year, to desigTiate the place or places where the annual election shall be held, and to give notice thereof. They have power at such meeting to alter any district, in which case they must make a certificate of the alterations, and file the same in the office of the Town Clerk. Any alteration so made will not take eifect till after the then next- general election, except where a town has been altered, divided, or newly erected.' 12. When a new town is formed, it is the duty of the Supervisor, Assessors, and Town Clerk thereof, to meet at the office of the Town Clerk, on or before the first Tuesday in September preceding the first general election to be held in the town, and they may adjourn from time to time, but not beyond the first day of October. If their ' 2 R. S. (3a ed.,) 608, 609, f § 12, 13, 14, ISM s 1 R. S. (3(1 ed.,) 134, M 15, 16 ; Laws of a 2R. S. (3d ed.,) 508, 309, II 15, 17, IS, 19. 1 1847, chap. 240, StrPERVISOES. S61 town contains more than five hundred electors, it is their duty to divide it into a convenient number of election districts, as compact as may be ; and if it contains less than five hundred electors, the division may be made in their discretion. An election district must not contain more than five hundred electors. Where a town is divided, a certificate of the division must be made and signed by the Board, and filed in the office of the Town Clerk* 13. Vacancies in the Board of Inspectors of an election district are to be filled by the Supervisor, Town Clerk, and Justices of the Peace of the town, at a meeting to be called by the Supervisor, or in ease of a vacancy in his office, or his absence, or inability, by the Town Clerk. Certificates of the appointment of persons to fill vacancies are to be filed in the office of the Town Clerk." FORMS. § 1027. Supervisor's Oath. I do solemnly swear, [or, affirm,] that I will support the Constitu- tion 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 Supervisor of the Town of , in the County of , according to the best of my ability. Sworn and subscribed, this ) D. £. I* day of , 18 , before me, j R R, Town Clerk of the Town of ." § 1028. Form of Keeping Supervisor's Book. D. E. L., Supervisor of the Town of , in accoimt with sdd Town: , Dr. R. Dates. Dolls. cte. Dates. Dolls. cts. May 1, 18S0. July 30, " For am't rec'd of 0. P., Collector of the Town, - - • For amount of pe- nalty collected of A. B. for (.state what for.) &c., &c. 189 ■■ SO 50 00 May 2, 1850. (( (1 u By paid for Superri- sor's book, ■ " " E. F., Com- mipeioncr of High- ways,- - &c., Ac. 1 ISA 2d 00 ' 1 R. S. (3d ed.,) 134, ^ 15-17 ; Laws of I a 1 R. S. (3d ed.,) 136, S 22 ; Laws of 1841 1847, chap. 240. | chap. 210. 3 No fee can be charged for administering the oath. The certificate must bo filed by Uh Supervisor in the office of the Town Clerk, within eight days after taking the oath. S6B NSW clerk's assistant. § 1029. Certificate of the Town Clerk and Justices of the Peace on the Examination of the Supervisor's AccourUs, to he entered in his book. ToTraof , ss: We, the undersigned, the Justices of the Peace and Town Clerk of the Town of ' , do hereby certify that we have this day examined the within [or, foregoing] account of D. E. L., Supervisor of said town ; and that we find the same in all respects correct and true, and that there appears at this date to be a balance of dollars and cents due from the said Superrisor to the town of , \_or, as the balance may 6e.] Dated , the day of , 18 . A. W. I Justices of the Q. H. f Peace, a T.J R a, Town ClcrL J 1030. Certificate of the Supervisor, to Accompany Copies of Entries in Town Clerk's Book. %^*wn of , ss : I do hereby certify that the within are the copies of entries con- cerning moneys voted to be raised in the said town of •' , defiyered to me by the town clerk thereof. Dated , l^e day of , 18 . D. E. L., Supervisor of said Town. § 1031. Notice of Supervisor, calling Special Meeting of the Board of Excise. \Se-) § 429 in Chapter xvii : all the Forms used by the Commis- tioneni of Excise may be found in the same Chapter.^ § 1032. Appointment of Commissioner of Highways to fill Vacancy. [See § 491 in Chapter xxii: all the Forms used by the Super- visor Wider the Highway Act, may be found in the same Chapter.'\ S 1033. Beport of Supervisor, where all the Poor are not a County Charge. [See § 870 in Chapter xsxv: the other Forms required by the Super- StJPEKVISORa. 669 visor in performing Jus duties under the Poor Laws, may be found in the same Chapter. 1 § 1034. JVotice to Town Superintendent of Common Schools to furnish Additional Security. [See § 941, in Chapter xxxviii : the other Forms required by the Supervisor under the School Law, may be found in the same Chap- ter.] §1035. Receipt of Supervisor for Proceeds of the Sale of a Stray {See § 1026, in Chapter xl.] § 1036. Affidavit verifying Account. \See § 1056, in Chapter xliii: other Forms used by the Town Auditors may also be found in that Chapter.^ § 1037. Approval of Sureties in a Bond.^ I approve of the sureties named in the above bond. Dated , the day of , 18 . D. E. L., Supervisor of the Town of § 1038. List of Jurors. list of Jurors selected from the town of of , to serve for three years from the 18 . , in the county day of , Names. Occupation. Residence. R. F., [viriti the name in/ulll S.M. &c., &c. Farmer, Merchant, Near the gate on the Plank Road, Village of ' The Offlcial Bond of a Commissioner of Highways may be found in Chapter xxiL (S 492) ; Ihat of the Town Superintendent of Common Schools in Chapter xxxtiii, (S 939) • that of the Town Collector in Chapter xLn,(5§ 1061,1052) ; and the Instrument of a Conslabla in Chapter ixxl, (§804.) It is the duty of Supervisors to prosecute Commis>;ioners of Hi"!!, ways or Town Superintendents, and their sureties, for breaches of their bonds, or neff. lect to make proper returns and pay over moneys, according to law. The Bond of the Col- lector, given to the Supervisor, must also be prosecuted by him. srQ NEW CLERK'S ASSISTANT. Town of , ss: We, the undersigned, the Supervisor, Town Clerk and Assessors of the said Town, do hereby certify tliat the foregoing is a correct list of jurors duly selected by us from the said town, to serve for the ensuing three years. Dated , the day of July, 18 D. E. L., Supervisor. S. G., Town Clerk. A. B., ) B. J., Y Assessors. RS.,j § 1039. Idst of Grand Jurors from a Town. List of Grand Jurors selected by the Supervisor of the Town of , from the qualified inhabitants of said town. Names, Occupation. Residence. A.' b., [write the name infuU.] Blacksmith. Cooper. Village of Comers. I hereby certify that the foregoing is a list of grand jurors se- lected by me from the qualified inhabitants of the town of D. E. L., Supervisor of said Town. § 1040. Tax Bill [^The Tax Bill is a mere copy of the Assessment Roll, (§ 1046, in Chapter xlii,) with another column headed " Amount of Tax " added thereto; in which column the Supervisor inserts the amount of each person's tax, calculated by him according to the rate per cent., established by the Board. For other Forms required in the as- sessment and collection of taxes, see Chapter xlu.] I 1041. Notice of Election. ELECTION NOTICE. Town of , ss : We, the undersigned, composing the Board of Town Officers of said town, do hfireby notify the electors thereof, that the ensuing general election, [or, that a special election duly ordered by the Governor of SUPEKVIf.JRS. 571 this Stafte,] at which are to be elected the following officers, viz : \in- sert here a list of the officers to he choseiiil will be held in election dis- trict number one, in said town of , on the day of November next, \or, instant,] at the house of 0. P., in said district; in election district number two, on the same day, at the house of E. F., in said last mentioned district; and in election district number three, on the same day, at the house of S. T., in said last mentioned district: And that the poll of the election will be opened in each district on the day of aforesaid, at sunrise, [or, at the time determined hy the board, to be not later than nine o'clock in the morning,'\ and closed at sunset on that day. Dated , the day of , 18 . D. E. L., Supervisor. S. G., Town Clerk. A. B., ) B. J., \ Assessors. R S. ) § 1042. Alteration of an Election District. Town of , ss: We, the undersigned, composing the Board of Town Officers of said town, do hereby certify that we have this day altered the elec- tion districts in said town ; and that the said districts are now consti- tuted and bounded as follows : Election district number one is bounded on the west, by the west line of the town; on the north, by a hne passing along the centre of the main channel of the river ; on the east, by the centre of the road ; and on the south, by the south line of military lots number and Election district number two is boimded, &c., \describe the boun- daries clearly and distinctly^ Election district number three, comprises the remaining territory in said town, not included in either of the districts above described, and is bounded, &c., [give the boundaries-^ Dated, &c., [as in § 1041.] § 1043. Division of a New Town into Election Districts} Town of , ss : We, the undersigned, composing the Board of Town Officers of said town, do hereby certify that we have divided the same into three ' Within len days after the meeting of the Board, and at least two weeks before the day of the ensuing election, the town clerk must put up copies of the certiQcaie of division in at least four public places in each election district, and deliver one copy thereof to an inspec* tor in each district. 672 NEW clerk's assistant. [or, as the number may Se] election districts, wMcli are bounded and described as follows, viz : Election district number one is bounded, Laws of ISI", chap. 200, 494. ' Laws of 1313, chap. ISO. » Laws of 1846, chap. 327. < IR. S. <3deil.,)4S9,§ua VAXSS. 61% LANDS OF NONRESIDENTS. Dc^-cnptitin ol Tract. Quanlily oI'Laiid. Valuation. Lot No. W, out) 3,UUU Subdivision No. 2, Lot No. 86, 90 990 A IvacL or laml situiue on road leading from. &c., boundcJ and described as 43 60O - Ibllows, to wit [description,] Dated the day of 18 i ' i' [ Assessor* QSC, &C., ) § 1047. Notice of Completion of Assessment, d'c. PUBLIC NOTICE. Notice is hereby ^iven, that the Assessors of the town of , [or, of the ward ia the city of ,] have completed their assessment roll, for the present year, and that a copy thereof is left with the vindersigned E. F., at his dwelling-house, ia , where the sanne may be seen and examined by any of the inhabitants of said town, [or ward,] during twenty days from this date ; and that the said Assessors "svill meet at the house of R. P., in said town, [or, ward,] on the day of instant, [or, next,] at o'clock in the noon, to review their assessments, on the application of any person conceiving himself aggrieved. Dated, &c., [as in § 1046.] § 1(348. Affidavit to Reduce Amount of Tax. County, ss: A. B., of the town of , in said county, being duly sworn, says, that the value of the real estate assessed to him on the assess- ment roll of said town, for the year 18 , described as [give a brief description,'] and valued on said roll at dollars, does not ia fact exceed the sum of dollars ; [or, that the value of the personal estate owned by him, after deducting his just debts, [if ne- cessary insert here, and his property invested in incorporated compa- nies liable to taxation,] does not exceed the sum of dollars; or, that the value of his personal property is not equal to the amount of debts owed by him.] Sworn to, this day of , 1 A. B. 18 , before me, j E. F., Assessor. a? 678 KKW clerk's assistant. § 1049. Certificate to Attach to Assessment Boll. County,) Town of ,\^- We do severally certify, that we have set down, in the above as- sessment roll, all the real estate situated in the town of , in said county, [or,' in the ward, in the city of ,] according to our best information; and that, with the exception of those cases in which the value of the said real estate has been sworn to by the possessor thereof, we have estimated the value of the said real estate at the sums which a majority of the Assessors have decided to be the true value thereof, and at which they would appraise the same in payment of a just debt due from a solvent debtor; and also, that the said assessment roll contains a true statement of the aggregate amount of the taxable personal estate of each and every person named in the said roU, over and above the amount of debts due frona^ such persons respectively, and excluding such stocks as are otherwise taxable; and that with the exception of those cases in. which the value of such personal estate has been sworn to by the owner or possessor, we have estimated the same according to our best information and belief. Dated, &c., \as in § 1046.] § 1050. Notice of Supervisor to Collector of Amourtt of Taxes. To H. C, Collector of the Town of : You are hereby notified that the amount of taxes to be collected by you in said town of , for the current year, is dollars and cents. Dated , the day of , 18 . Yours, &c., L. S., Supervisor. § 1051. Collector's Bond to Supervisor. Know all men by these presents : That we, H. C, A. B., and C. D., of the town of , in the county of , are held and firmly bound unto L..S., Supervisor of said town of , in the penal sum [insert double the amount of taxes to he colleeied] of thou- sand dollars, to be paid to the said L. S., or his successor in oflSce ; to which payment, well and truly to be made, we bind ourselves, and our, and each of our heirs, executors and administrators, jointly and severally, firmly by these presents.' Sealed with our seab, and dated the day of , A. D. 18 .* TAXES. 579 Whereas, the above bounden H. C. has been duly chosen Col- lector of said town of : Now, therefore, the condition of this obligation is such, that if the said H. C. shall well and faithfully execute his duties as such collector, then the above obligation to be void ; else to remain in force. H. C. [l. b. Sealed, signed and delivered ) A. B. [l. b.' in presence of ) C. D. [l. b.' G. H. I approve of the sureties named in the above bond. Dated , the day of , 18 . L. 8., Supervisor of the Town of .* § 1052. Collector's Bond under the Law Providing for the Enroll- ment of the Militia. Know all men by these presents : That we, H. C, A. B., and C. D., of the town of , in the county of , are held and firmly bound unto L. H., Colonel of the regiment of the en- rolled militia of the State of New York, in the penal sum [insert such sum as the officer approving the bond mag deem sufficient^] of dollars, to be paid to the said L. H., or his successor in office, to which payment, &c., [as in § 1051 to the *, and then add:] Now, the condition of this obligation is such, that, if the above bounden H. C, who is the collector of the town of aforesaid, shall faithfully pay all moneys received by him in pursuance of the act entitled " An Act to provide for the enrollment of the militia, and to encourage the formation of Uniform Companies, excepting the First Military Division of this State" — passed May 13th, 1847, as amended by an Act passed December 15, 1847, into the treasury of the county of , on or before the tenth day of Augiist next^ then the above obligation to be void ; else to remain in force. Sealed, &c., [as in § 1051, with the approval annexed thereto."] § 1053. Mtice of Collector. PUBLIC NOTICE. Notice is hereby given to the taxable inhabitants of the town of , [or, of the ward, in the city of ,] that I, the undersigned, the Collector of taxes in and for the said town, [or, ' The Supervisor must file the bond of the Collector in the office of the County Clerk, i/ithin six days after its execution. 880 NEW cleek's assistant. ward,] hare received the warrant for the collection of the taxes for the present year; and that I will attend at my dwelling-house, [or, at the house of R. P.,] in said town, [or, ward,] on Thursday of each week, for thirty days from the date hereof, from nine o'clock in the forfenoon until four o'clock in the afternoon, for the purpose of re- ceiving payment of taxes. Dated , the day of , 18 . H. C, Collector. § 1054. Warrant of County Treasurer. To the Sheriff of the County of , greeting: The people of the State of New York command you to make of the goods and chattels of A. B., in your county, the sum of dollars, being the amount of a tax assessed to the said A. B., in the town of , and county of , under and in pursuance of the provisions of an act, entitled "An Act to equalize taxation," passed May 13, 1846, together with one dollar for this warrant; and if sufficient goods and chattels cannot be found in your county to make the said sums of money, you are required to levy the same of the lands and tenements, real estate and chattels real, of the said A. B., whereof he was seized on the day of , 18 . And you will pay over the moneys collected by virtue of this warrant, to the undersigned, the Treasurer of the county of aforesaid, on or before the day of , 18 . J. C. D., Treasurer of the County of CHAPTER XLin. TOWN AUDITOES. PRACTICAL REMARKS. 1. The Supervisor, Town Clerk,and Justices of the Peace, or any two Justices, of any town, constitute the Board of Town Auditors^ for the purpose of auditing and allowing all claims payable by such town. The Board are required to meet annually, at the place of holding the last town meeting, on the last Thursday preceding the annual meeting of the Board of Supervisors of the county.' 2. Accounts for services and disbursements presented to the Town Auditors, must be made out in items, and accompanied with an affidavit, as in the form hereinafter given. The affidavit must bo made by the person presenting, or claiming, the account, and must be attached to, and filed with the same.^ 3. The board must annex to each account audited by them, a cer- tificate in duplicate, specifying the name of the person in whose favor the same is drawn, the nature of the demand, and the amount allowed. One copy of the certificate is to be filed with the Town Clerk, and the other deUvered to the Supervisor, to be presented to the Board of Supervisors, who wiU order the amount to be collected in the town.' 4. It is the duty of boards of town auditors, to make annually, brief abstracts of the names of all persons who have presented to said board accounts to be audited, with the amounts claimed by each, and the amounts finally audited ; which abstracts are to be delivered to the Clerk of the Board of Supervisors and printed with the other statements required to be printed by Mm.* 5. The original accounts and affidavits presented to the board of town auditors are to be filed in the oflBce of the clerk of the town. ' Laws of 1840, chap. 305 ; Laws of 1844, chap. 82S. a Laws of 1845, chap. 180, § 24 j Laws of 1847, chap. 490. s Laws of 1840, chap. 305. * Laws of 1847, chap. 465. 582 UEW clerk's assistant. FORMS. § 105S. Certificate of Town Auditors. County, ) Town of ,}^^ = We, the undersigned, composing the Board of Town Auditors of said town, do hereby certify, that we have this day audited and al- lowed 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 Commissioner, [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 may be."] Dated at , the day of , 18 . A. B., Supervisor. C. D., Town Clerk &c.,&c., fjiJstioes. § 1056. 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 correct; 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, j A. B., Chairman of the Board of Town Auditors of § 1057. 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 1 This form may also be used to verify accounts presented to the Board of Supervisors, or County Superintendents of the Poor. The oath may he administered by the chairman of the Board of Town Auditors, or Supervisors, or by any one of the County Superintendents. TOWN ATJDITOBB. 683 the day of > 18 , with the amounts claimed by each, and the amounts finally audited. Names. Title of Office, or nature of claim or services. Am'l claimed. Am'l audited. John Brown, John Doe. Richkrd Roe, James Thompson, &c., &c. Justice of the Peace, Town Superintendent of Com. Schools, For supplies to town Poor, Medical services, &c., &c. Total, 60 60 60 00 78 00 100 00 40 60 60 OO 78 00 8S0O Town of , ss : We do hereby certify that the foregoing abstract is correct Dated , the day of 18 . D. E. L., Supervisor. S. G., Town Clerk. H. R, ) S. T., >• Justices of the Peso (fee, Justices. &c., &c., ) § 1060. Resolution of the Board of Supervisors. Resolved, That the sum of dollars be raised and collected in the town of , for the purchase of a site for, and the build- ing of, a town-house, in said town, in accordance with the resolution adopted by the electors thereof at the last annual town meeting ; [or. That the question of raising the sum of dollars in the town of , for the purchase of a .site for, and the building of, a town- house, in said town, voted upon at the last annual town meeting held therein, be again submitted to the electors thereof, at the next annual town meeting,] CHAPTER XLV WILLS. PBACTICAL BEMARKS. 1. All persons except idiots, persons of unsound mind, and infants, may devise their real estate by a last will and testament duly exe- cuted. Such devise may be made to any person capable, by law, of holding real estate ; but no devise to a corporation will be valid, un- less such corporation be expressly authorized by its charter, or statute, to take by devise. Every devise of any interest in real pro- perty, to a person, who, at the time of the death of the testator, may be an alien, not authorized to hold real estate, will be void.' 2. Every male person of the age of eighteen years, or upwards, and every female of the age of sixteen years, or upwards, of sound mind and memory, and no others, may give and bequeath his or her personal estate in writing. No nuncupative or unwritten will, be- queathing personal estate, wiU be valid unless made by a soldier, while in actual military service, or by a mariner while at sea.' 3. Married women may devise real or personal property belonging to them in their own right, and not conveyed, given, granted, or de- vised to them by their husbands.' 4. Every last will and testament of real or personal property, or both, must be executed and attested, in the following manner: — 1. It must be subscribed by the testator, at the end of the will: 2. Such subscription must be made by the testator, in the presence of each of the attesting witnesses, or acknowledged by him to have been so made to each of the attesting witnesses : ' 2 R. S. (3d ed.) 118. 119, M 1-4; 4 Paige, I « 2 R. S., (3d ed.) 121, §S 18, 19; 1 Hoff- 422; 3 Wendell, 166; 10 Id., 379. man's Ch. Rep., 1 ; Id., 202. I > Laws of 1849, chap. 3%. WELLS. 687 3. The testator, at the time of maknig such BubBcription, or at the time of aoltnowledging the Bame, must declare the instrument so sub- scribed, to be his last will and testament. 4. There must be, at least, two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the request of the testator. 6. The witnesses to any will must write opposite to their names their respective places of residence; and every person who may sign the tes- tator's name to any will, by his direction, must write his own name as a witness to the will. 6. Whoever neglects to comply with either of the foregoing pro- visions, will forfeit fifty dollars, to be recovered by any person interested in the property devised or bequeathed, who may sue for the same. Such omission will not affect the validity of any will ; nor will any person liable to the penalty aforesaid, be excused or incapacitated, on that ac- count, from testifying respecting the execution of such will.' 5. No will in writing, (except in the cases particularly specified in the statute,) nor any part thereof, can be revoked, or altered, other- wise than by some other will in writing, or some other writing of the testator, declaring such revocation or alteration, and executed with the same formalities with which the will itself was required by law to be executed ; or unless such will be burnt, torn, canceled, oblite- rated, or destroyed, with the intent, and for the purpose of revoking the same, by the testator himself, or by another person in his pre- sence, by his direction and consent ; and when so done by another person, the direction and consent of the testator, and the fact of such injury or destruction, must be proved by at least two witnesses." 6. Marriage and the birth of a child, subsequent to the execution of a wUl, operate as a revocation, if there be no provision made for the wife and child. A will executed by an unmarried woman wiQ be deemed revoked by her subsequent marriage. After born chil- dren, not provided for or mentioned in a will, or in a settlement, are entitled to such share of the estate of the testator as they would have had if no will had been made." 1. Fraud will vitiate a will.* 8. Mere imbecility will not avoid a wilL The term '•unsound mind," in the statute concerning wills, has the same signification as no7i compos mentis.'' 9. A sound disposing mind, or testable capacity, is any point above idiocy or lunacy.' ■ 2R. S. (3d ed.,) 124, §532,33 ; 8 Paige, 489 ; 10 Id., 85; 28 Wendell, 331, 625; 1 Uenio, 33; 1 Barbour's S. O. Rep., 526; 8 Id., 40, 200. a 2 R. S. (3d cd.,) 124, 5 34 ; 20 Wendell, 467; 1 Hill, 590. • 2 R. S. (2d ed.,) 124, 5, §§ 35, 36, 41 ; 4 Kent's Commentanes, (2d ed.,) 520, et seq.; 4 Jolinson's Cli. Ren., 506 ; 5 Paige, 590 : 7 Id., 99; 1 Denio,27. < 1 Comstocic, 214. 6 3 Denio, 37. <> 26 Wendell, 256 ; 3 Denio, 37 ; 2 Comstocic, 498. ^6 NEW clerk's assistant. 10. Where the personal estate is not in terms exonerated by a will, it will be deemed the primary fund for the payment of legacies.' 11. No provision made in a -will for a wife, will prevent her from having dower also, unless it be expressly declared to be in lieu of dower, and she assent thereto. A testamentary provision, where the intention is doubtful, though accepted, will not deprive her of dower.' 12. Lands purchased after making a will, will not pass by it, un- less it be republished in the presence of the former, or any other two witnesses.' 13. A codicil is a supplement to a will, and must be attested in the same manner.* 14. A codicil to a will causes it to speak from the re-publication.' 15. The term "heirs," or other words of inheritance, are not necessary to the devise of an estate in fee. Where it is the intention to give an estate for life only, the words "during his natural life," or other words to the same effect, must be used." 16. A will is vaKd, although it contain a devise or bequest to the witness ; such bequest, however, is void' 17. Three witnesses to a will of real estate are required in Vermont, New Hampshire, Maine, Massachusetts, Rhode Island, Connecticut, New Jersey, Maryland, South Carolina, Georgia, Ala- bama, Mississippi, Michigan, Wisconsin, and Iowa. Two witnesses only are necessary in New York, Delaware, Virginia, Ohio, Illinois, Indiana, Missouri, Tennessee, North Carolina, and Kentucky. In Pennsylvania, no subscribing witness is necessary, provided the authenticity of the wiU can be proved by two witnesses : and if a will be subscribed by witnesses, it may be proved by the oaths of other persons." 18. After the lapse of sixty years from the date of a will, its execution may be shown, witliouiti»proving that efforts have been made to procure the attendance of the subscribing witnesses, as their death may be presumed." ' 1 Comstock, 120; 2 2 R. S. (3d ed.,) 27, S§ 9-U ; 2 .lohnson's Ch. Rep., 448; 2 Paige, 559; 8 Id., 325; 7 Cowen, 285 ; 5 Jlill, 20(i ; 2 Donio, 430. s 2 R. S (3d ed.,) 124,5. 55 37-40 ; 7 John- son's Ch. Rep., 258; 4 Kent's Commentaries, (2d ed.,) 628. «6 Johnson's Ch. Rep., 376; 1 Hill, 590. t 7 Hill, 346. 2 R. S. (3d ed.,) 33, § 1 ; 2 Johnson's Cas. 484 ; 2 Hill, 554 ; 3 Id., 165 ; 5 Id., 410 ; I Do- nio, 165. ' 2 R. S. (3d ed.,) i25, §5 42, 43. 8 4 Kent's Commentaries, (2d ed.,) 513,514. » 7 HiU, 470. WILLS. 689 FORMS. § 1061. Will of Real and' Personal Estate. In the name of God, amen : I, A. B., of the town of , in the county of , and State of , of the age of years, and being of sound mind and memoiy, do make, publish and declare, this my last 'will and testament, in manner following, that is to say : First, I give and bequeath to my wife, E. B., the sum of , to be accepted and received by her in lieu of dower; to my son, C. B., the sum of ; to my daughter, M. B., the sum of ; and to my daughter-in-law, S. B.; widow of my son, R. B., deceased, the sum of ; which said several legacies or sums of money, I direct and order to be paid to the said respective legatees, within one year after ray decease. Second, I give and devise to my son, C. B., aforesaid, his heirs and assigns, all that ti-act or parcel of land, situate, &c., \descrihe the l>remises,^ together with all the hereditaments and appurtenances thereunto belonging or in any wise appertaining : To have and to hold the premises above described to the said U. B., his heirs and assigns, forever. Third, I give and devise all the rest, residue and remainder, of my real estate, of every name and nature whatsoever, to my said daughter, M. B., and my said daughter-in-law, S. B., to be divided equally between tiiem, share and share alike. And lastly, I give and bequeath all the rest, residue and remain- der, of my personal estate, goods and chattels, of what nature or kind soever, to my said wife, E. B., whom I hereby appoint sole executrix of this my last will and testament ; hereby revoking all former wills by me made. , In witness whereof, I have hereunto set my hand and seal, this day of , in the year of our Lord one thousand eight hundred and . A. B. [l. s.] The above instrument, consisting -.of one sheet, \or, two sheets,] was, at the date thereof, signed, sealed, published and declared, by the said A. B., as and for his last will and testament, in presence of us, who, at his request and in his presence, and in the presence of each other, have subscribed our names as witnesses thereto. [Or, The above instrument, consisting of one sheet, was, at the date there- of, declared to us by A. B., the testator therein mentioned, to be his last will and testament ; and he at the same time acknowledged to us, and each of us, that he had signed and sealed the same ; and we thereupon, at his request, and in his presence, and in the presence of each other, signed our names thereto as attesting witnesses.] C. D., residing at , in county. G. H., residing at , in eounty. 590 NEW clerk's assistant. § 1062. CodicU to a Will. Whereas, I, A. B., of, &c., have made my last will and testament in writing, bearing date the day of , in the year of our Lord one thousand eight hundred and , in and by which I have given and bequeathed to, &c., [here set forth the bequest which the testator desires to change f] Now, therefore, I do, by this my writing, which I hereby declare to be a codicil to my said last will and testament, and to be taken as a part thereof, order and declare that my will is, that only the sum of be paid to my daughter-in-law, S. B., in full of the said legacy given and bequeathed to her ; and that the remaining part of the said legacy be given and paid to my nephew, E. F. : And lastly, it is my desire that this codicil be annexed to, and made a part of, my last will and testament as aforesaid, to all intents and purposes. In witness, (fee, [as in § 1061, except that the attestation will read, " as and for a codicil to his last will," (fee] § 1063. Nomination of Executors in a Will. And lastly, I do hereby nominate and appoint my sons, C. B. and M. B., [or, my friends, E. F. and L. M.,] to be the executors of this my last will and testament, hereby revoking all former wiUs by me made. § 1064. Devise to Executors in Trust, with Power to Sell, <&c. I give and devise all my real and personal estate, of what nature or kind soever, to E. F. and L. M., the executors of this my last vriU and testament, hereinafter nominated and appointed, in trust, for the payment of my just debts and the legacies above speciiied, with power to sell and dispose of the same, at public or private sale, at such time or times, and upon such terms, and in such manner, as to them shall seem meet ; provided, however, that no part of my real estate, as aforesaid, shall be sold at public auction, until after the expiration of three years from the time of my decease. § 1065. Disposition of the Tuition and Custody of Minor Children. And I do hereby dispose of and commit, the tuition and custody of my children, M. B., K B. and F. B., and every of them, for such time as they or any of them respectively continue unmarried, and wins. 591 under the age of twenty-one years, unto my wife, E. B., provided she remains my widow ; but if she shall die or marry, during the single life and nonage of any of my said children, I hereby dispose of and commit their tuition and custody to my executors, hereinafter nominated and appointed. § 1066. Provision in a Will for a Child, Born After the Death of the Testator. I give and bequeath to my wife, E. B., the sum of , in trust for any chUd, or children, by me begotten, which may be born of her subsequent to the time of my decease; which said sum of money is to be paid to such child, or divided equally between such children, when he, or she, or they, shall have arrived at the age of twenty-one years. § 1067. Provision for Children Born After the Execution of a Will. I give, bequeath and devise, all the rest, residue and remainder, of my real and personal estate, to my children now living, or who may be living at the time of my decease, to be divided equally between them, share and share aUte. § 1068. The same, in Another Form. I give and bequeath to each and every of my children born subse- quent to the execution of this my last will and testament, the sum of dollars, to be paid in the same manner as the other lega- cies hereinbefore mentioned. § 1069. Devise of an Estate for Life to one Person, and Rever- sion to Another. I give and devise aU my real estate, of what nature or kind soever, to my wife, E. B., [or, to my friend, L. M.,] to be used and enjoyed by her, \or, him,] during the term of her \or, his] natural life; and from and immediately after her [or, his] decease, I give and devise the same to my friend, S. T., his heirs and assigns, forever. 592 NEW cleke's assistant. § 1070. Devise to Trustees, During a Life, or Lives. I give, bequeath and devise, all my real and personal estate, of what nature or kind soever, to E. F. and G. H., the executors of this my last will and testament, hereinafter nominated and appointed, in trust, for the payment of my just debts, and the legacies and charges upon the said estate hereinafter specified, tc be held and possessed by them, for the purpose aforesaid, for and during the natural life of L. M., of the town of , and State of , and for and during the natural hfe of E. M., infant son of the said L. M. ; and from and after their decease, and the decease of each of them, I give, bequeath and devise, my said estate, to my son, C. B., his heirs and assigns : And I do hereby order and direct, that during the continu- ance of ihe said trust estate, as aforesaid, there shall be annually paid out of the net income and profits thereof, the sum of to my ^vife, E. B., in heu of all dower, or right of dower, in and to my said estate; the sum of to my son, G. B. ; and the sum of to my daughter, M. B. ; and that the rest, residue and re- mainder, of the said net income and profits, shall be divided equally between my said executors, in heu of compensation for their services in the execution of the said trust. § 1071. Devise of an Annuity. I give, devise and bequeath, to my wife, E. B., and her assigns, for and during the term of her natural life, one annuity, or clear yearly rentj or sum, of , free of all taxes and other de- ductions, to be issuing and payable out of the real estate above de- vised to my son, C. B., in equal half yearly payments, at , on the day of Januaiy and July, in each and every year as aforesaid ; and I do hereby charge and subject the said real estate with and to the payment of the said annuity, yearly rent, or sum, of , at the times and in the manner aforesaid ; fully empower- ing and authorizing, my said wife and her assigns, provided the said annuity, or any part thereof, shall remain unpaid after the expiration of twenty days from tlie lime when the same shall be due and pay- able as aforesaid, to entej- into all and singular the premises charged with the annuity as aforesaid, and the rents, issues and profits there- of, to receive and take, until she and they be therewith and thereby, or by the person or persons then entitled to the immediate posses- sion of the premises, paid and satisfied the same and every part tliereof, and all the arrears then due and payable, together with her and tlieir costs, damages and expenses, paid out and sustained, by reason of the non-payment thercoti or of any part therof. INDEX. ABSTRACT— VAO. of claims audited by town auditors. ACCOUNTS— see " TOWN AUDITORS." ACKNOWLEDGMENT AND PROOF OF DEEDS, &c.— practical remarks,—... ................... HI by a single party, known to the officer, 12 by a single party, proven to the officer, B by husband and wife, different forms, 12, 18 by two husbands'and their wives, 13 by wife in a separate certificate, - 13 by several parties, -...-._.._.. 14 by one of several parties,... 14 by an attorney, different forms,. 14, IS by an executor, or trustee,.... ................. ... 16 by a sheriff, , 15 by a deputy sheriff, 16 by a party to confirm deed executed during infancy, W by subscribing witness, .. 16, 17 by subscribing witness as to the husband, and acknowledgment by the wife, IT by subscribing witness to deed executed by an attorney, .. 18 proof of deed where subscribing witnesses are dead, .. 18 proof of deed executed by a moneyed corporation, 19 the same by a religious corporation,. ___. ...,.._. 19 acknowledgment in New England States, 20 acknowledgment in Pennsylvania, 20 ackaowledgment in Michigan, 20 acknowledgment in Ohio, 21 acknowledgment in Illinois,.... ................ ............. 31 acknowledgment in Indiana, ' 21 acknowledgment in Alabama, .... 21 satisfaction of mortgage and acknowledgment, 22,23,24 satisfaction of judgment and acknowledgment,.. .. 24, 2S application for subpoena to compel attendance of subscribing witness to a conveyance, and accompanying forms,...., .... 25, 26, 2? forms of oaths on taking acknowledgments, or proving deeds, &c., Sf acfciiowledgment of pension voucher,. acknowjedgment of notice of exemption of homestead, 830, ZSl 38 594 INDSX. ADMINISTRATORS— paob . fees of, J 346 deed from, , 162 satisfaction of mortgage by, .................... ....... 22 description of in suit^ 343 ADVERTISEMENT OF SALE— on a chattel mortgage, .. 120 of town superintendent of common schools, 62d of collector of school district, 539 of constable, „- - —.....„ —__.._.-__ 660 where stray is not x'edefmed,—.—.... ._„.... 563 on foreclosure of mortgage on real estate, ..__. 184 AGREEMENTS AND CONTRACTS— practical remarks, _ 28,29 general form of an agreement, 30 agreement for the sale and purchase of personal property,..., 30 for building a house, . 30 for re-building mills, . 31 for making flour barrels, 32 for the sale of wood, or stone, .... 32 for the sale of stock in grocery store, 33 for engraving maps,. _ _ 34 to freight sloop, or canal boat, 34 to sell shares of stock in an incorporated company,., 35 agreement of barter, ........ _. - ...... 36 for towing line of canal boats, 36 to cultivate land on shares, _ 37 to sell the copy right in a book, 38 to sell and assign bond and mortgage, 38 to change mortgage security, 39 respecting party wall, 40 agreement of purchaser at auction sale, ....._... , 41 with a clerk or workman, 42 agreement or subscription for raising money to build a church or bridge, ., 42 with amason for plastering, laying brick, &c., « 42 contract for the sale of land, ,...-...._■. 43 contract for the sale of land, executed by an attorney, 44 contract for the sale of land, with special covenants, .. 44 bond for performance of a contract, 130 agreement as to damages on laying out highway, 301 agreement for lease, — - .... 388 agreement between housekeeper and lodger, 390 see "Assignments," "Bills .of Sale and Chattel Mort- GAOBs," "Covenants," and "Landlord and Tenant." APPRENTICES AND SERVANTS— practical remarks, , . 45-43 apprentice's indenture, . 49 forms of consent of father, mother, guardian, &c.,. GO agreement of father binding himself to pay damages, ........ 51 the same, indorsed upon the indenture, - 51 servant's indenture, 52 contract to bind a minor coming from, a foreign country, and acknowledgment, — .... 62, 53 assignment of the foregoing contract and approval, 53 iiiiDS^ 505 APPRENTICES AND SERVANTS— paob. consent lo bind Indian child, _ 63 complaint by masiei- against apprentice for refusing to serve, and accompanying forms, 54, 55 complaint against apprenitce for a misdemeanor, and accom- panying forms, - -— 65, 66 discharge of the apprentice from service, and of the master from his obligation, 66 complaint of apprentice for cruelty and misusage, and accom- panying forms, - 67, 68 complaint by apprentice where money has been paid, and ac- companying forma, 58, 69 complaint by master where money has been paid, and accom- panying forms, - 60, 61, 62 ARBITRATION AND AWARD- praclical remarks, . ___-.__«._. 63 65 special Bul)mission to arbitration, „. _,.. 66 general submission, _ ._._._.. 66 short form of general submission, _ „ 66 clause for judgment, 67 arbitration bond, _ „ 67 condition of bond on a special submission, ._„ 68 notice to arbitrators to fix time for hearing, &:c., _.„ 68 oath of arbitrators, _ ___ 68 notice of hearing, .. 68 oath on application for subpoena, ...___. 69 subprena before arbitrators, — __. 69 oath of witness, _ . 69 revocation, _„ 69 notice of revocation, 69 award, _. __ 70 release executed in pursuance of, an award, ._ , 71 affidavit of execution of bond, _.„ 71 affidavit of execution of award, *.-_„ 71 ARBITRATORS— fees of, — — _ —.«„„... 237 see " Arbitration and Award." ASSAULT AND BATTERY— warrant for, and other forms, . 361, 362 ASSESSORS- oath of office, , 430 fees of, 238 fees as fence viewers, _ _ 246 duties of, as fence viewers, and forms 260-266 duties of, in assessment of taxes, _ 573-576 assessment roll, _ 575 notice of compleiion of assessment, _ 577 affidavit to reduce tax, 577 certificate to assessment roll, „ 573 see "Highways." ASSIGNEES— destiription of in suit, „._ „._„-..-. 343 complaint by, in justices' courts, -_-...—„ 351 see " Assignments^" and "Justices' Courts." 596 INDBXi ASSIGNMENTS— paob practical remarks, _ 72,73 general form of assignment to be indorsed on an instrument,— 74 by a firm for the benefit of creditors, 74 general assignment, ^ 76 assignment of bond, « 77 of indenture, 63 of judgment, difl^rent forms, ... .. 77, TO of bond and mortgage, different forms, 79, 80 of bond and mortgage, as collateral security, , ..._. 80 of a lease, different forms, _—_...— 80,81 of contract for the sale of real estate, different forms, -. 81, 82 of a bail bond, .. 82 of partnership property, by one partner to another, . 82 by a sheriff to liis successor in office, .___„_.._..... 83 of a debt, or wages, 84 of policy of insurance, _ ...._._. -„ 85 of policy of insurance as collateral security, -_._-__— 85 of insolvent debtor, _ .___. .___._ 213 under non-imprisonment act,___ ._ -„_ -_ 218 of dower, _ 225 of patent, different forms, « 447,448,449 release of creditor named in an assignment, . ....... 611 ATTACHMENT— see " Justices' Courts," and " Service and Return op Pro- cess." ATTORNEY— acknowledgment by, different forms, . . 14, 15 contract for the sale of land by, .-...-..._...—....._.-. .. 44 bond and warrant of attorney, ,. 127 see "Pension Vouchers," and "Powers op Attorney." AUCTIONEERS— commission of, ...._........-.—..-... — ........... 238 bond of, 89 see "Auctions." AUCTION&- practical remarks, — 86,87,88 agreement of purchaser at an auction sale,.. ._........_....... 41 auctioneer's bond, and certificate of approval, 89 certificate to copy, 89 oath of co-partner, or clerk, .. .._.__....._..._........ 90 oath on exhibiting semi-annual account, ._...„........ 90 certificate of board of port wardens, ... 91 affidavit of president of insurance company, — . — ...... 91 AUDITORS— see " Town Auditors." BANES AND CORPORATIONS— practical remarks, ... . ... 92-M transfer of stock, ■„. 94 power to transfer, ' 95 proxy, - 95 affidavit of stockholder, 95 inspector's oath, __■_ .__ . ^ oath of stockholder when challenged,—— .._..-.._._.....-_.. 96 oath of proxy, 96 affidavit to statement of unclaimed dividends, &c., . 96 jSDEX, 597 BANKS AND CORPORATIONS— paob. power to receive diyidend,—— —— ———-—-— -—-——— - ^ certificate of association formed under general banking law, and proof, 97 certificate of the formation of a manufacturing corporation,—- 98 certificate of incorporation of an Episcopal church, 98 certificate of incorporation of other religious eocieties, 99 deed from corporation, - 1^9 bond to corporation, 124 mortgage by corporation, 179 mortgage to corporation, 180 proof of deed executed by,«_. ___— -_- 19 satisfaction of mortgage by, 24 bond of an officer of a bank, or company, — 128 triennial report of a religious corporation, - 100 application to mortgage or sell real estate of religious corpora- tion, 101 order of court on application, — 101 BEG6ARS- see "Poor Laws." BILLS OF EXCHANGE AND PROMISSORY NOTES- practical remarks, 102,103,104,105 bill of exchange, 105 a set of bills, 106 promissory note, negotiable, - 106 promissory note, joint and several, 106 promissory note, not negotiable,. 106 promissory note, payable on demand, _ 107 promissory note, payable at bank,_ _ 107 promissory note, payable in installments, 107 promissory note, payable in specific articles, 107 memorandum note formoney, 107 promissory note, with surety, 107 due bill for goods, \.. 108 orders, different forms, ._ 108 guaranty of payment, _ 108 guaranty of collection, , 108 protest of bill for non-acceptance, __-•_ _ , 108 protest of bill or note for non-payment, 109 notice of protest, different forms, — „_ HO certificate of service,-— _._.—.- — -.. 110 general form of anotarial certificate, ..__.__.. 110 BILLS OF SALE AND CHATTEL MORTGAGES— practical remarks, 112-114 common bill of sale,-.. _ _...-._..._....._.._.. 115 bill of sale, in consideration of maintenance,... 115 bill of sale of a registered or inroUed vessel, 116 chattel mortgage to secure a debt, diflerent forms, 117, IIS, 119 chattle mortgage to secure a note, . 118 chattle mortgage to secure indorser, .___...._ 118 chattle mortgage requiring sale to be made, 118 conditional clause as to possession, 119 renewal of chattel mortgage, , 120 notice of sale on chattel mortgage,..-, ___._.._ 120 agreement of tenant and pledge of property, 386 lease and chattle mortgage, ,..-.. 389 see " Fees of Officers," 5i^8 INDEX BONHS- BRIDGE— practical remarka, 121, 122 asai^mcnlof, ^_, 77 common bond, _- _ 122 bond of two obligors, „ 123 bond— several payments, _. , _ __-.__- 123 bond, with inierest condition, 124 bond to a corporation, _ _,_ .__, 124 bond to executors, _ ^ ._. _ 124 legatee's bond, _ 125 the same before suit, _ -_.., 126 indemnity bond to sheriff, _ ,„_- 126 bond and warrant of attorney to confess judgment, -_— _ 127 bond to execute a conveyance, „ .__. 127 bond to discharge a bond and mortgage, . 128 bond of an officer of a banlc, or company, _— „ , 128 bond of indemnity, to a surety, 129 the same on paying lost note, _ -___, 129 bond for performance of a contract or agreement, IK) bottomry bond, ISO bond of sheriff and his sureties, .___.. 430 bond of deputy sheriff,. _ 43O constable's bond, _ . 43O bond of commissioner of highways, 284 town superintendent's bond, _ 524 bond of collector of school district, 533 bond on obtaining license, _ 233,234, 235 bond of town collector, __, 578,679 ai'bitration bond, _ 67 auctioneer's bond, - .___. _ 39 county euperinlendenL's bond, -_-_. 473 general form of an official bond, __ _ 431 bond on appeal to supreme court in proceeding for the admea- surement of dower, 229 eecurity on obtaining warrant, or short summons, in justices' courts, - ._ 344 bond on obtaining an attachment in justices' courts, S46 bond on adjournment in justices' courts, different forms, » 348 recognizance, _ 379 security for rent, ;. 385 the same on proceeding for non-payment of rent, 400 bond by tenant on appeal, _ 404 bond on appeal from justices' proceedings where premises are vacated, - __ 407 bond where property has been seized for the support of indi- gent relatives, , 476 bond on adjournment in case of bastardy, „.-_. 492 bond on order of filiation, ._ 493 bond on arrest in foreign county, m a case of bastardy, 496 bond to prevent removal of goods attached, _ 557 bond by olaimantof property attached, - 658 bond of indemnity to constable, , 559 subscription to raise money to build, , 42 1 "Highways." INBXZ. 599 BROKERS- '*" fees of, - 238 CATTLE DISTRAINED DOING DAMAGE— Bee "Fence Viewers." CERTIFICATE— of the salo of roal estate on execution, ...........h.-m— — 167 CHATTEL MORTGAGE— see " Bills op Sale, etc." CHURCHES- ^„ subscription to ljuild,_ -_— ...... — --.-. — . 42 ccvtificate of incorporation, ....... .- — 98, 99 triennial report of religious corporation, . 100 application to mortgage or sell real estate, Wl order of courton the application, . 101 see " Banks and Corporatiows.'" CLERKS AND CRIERS— practical remarks,. _...... .„.__. .._..._....-.......-..-... 132, 133 proclamations of crier, . 133, 134, 135 forma of oaihs, administered by clerk, . 135,136, 137, 138, 139 forms in cases of felony,—. .-_.....- 139 forms on a trial for a misdemeanor,- W6 clerk's address on taking recx^gnizances, ._......-..—.. 140, 141 calling constables,. ....... 14t clerk's entry on issuing an attachment against a witness....... 141 arraignment on an indictment, ............ 143 forms for taking verdicts, and polling Junes, in criminal trials, 14!^ H3 forms for taking verdicts, and polling juries, in civil cases,... 143, 144, 146 entry of verdict, ., _ ........ 143 entry of verdict with assessment of personal property, . 143 entry of judgment, ,. 143 entry of judgment on submission, ...... 146 certificate of money paid into court by sheriff, 145 confession of judgment without action, 146 affidavit verifying confession, 14tt confession to secure against contingent liability, . 146 entry of judgment on confession, _ ._.-_ 1-16 certificate of filing notice of Lis Pendens, 146 certificate to acknowledgment, or proof, of a conveyance, 147 certificate of ofllcial character, . 147 transcript of judgment and certificate, 147 ceritficar* to copy of a record, or paper on file, ., 148 certificate to transcript of justice's judgment, 148 see *' Debtor and Creditor," " Fees of Officers," " Ferries," "Mechanics' and Laborers' Lien," "Naturalization," "Official Oath and Bond," and Schools." CLERKS OF SCHOOL DISTRICTS- eee "Schools." CLERK OF SUPERVISORS— fees of, , !UD COLLECTORS OF SCHOOL DISTRICTS— fees of, 261 bond of, 638 notice that he will receive taxes, .-_ 639 notice of levy and sale, 639 600 IKDEZ. COLLECTORS OP TOWNS- fees of, .. .. ......................... notice of superriaor to,_... .............. bond of collector, . ..._..._......«. .. notice that taxes will be received, . .................... see " Taxes." COMMISSIONERS OP DEEDS— fees of, ......»......»..........«.__»_ see "Acknowledgments, etc." COMMISSIONERS OF EXCISE— fees of, ............... — .................. see "Excise." COMMISSIONERS OF HI6HWAYS- oatli of office, fees of, . fees as fence viewers, bond of, . . appointment to fill vacancy, . duties of as fenco viewers, and forms,... ........ . see " HiOHWATS," and " Strays." COMMISSIONERS OF LOANS— fees of, .. ............................. COMMISSIONERS IN PARTITION— fees of, . . ... — deed by, ...... — . — ....... . COMMISSIONERS TO ADMEASURE DOWERr- feesof, ............................ — . see "DowEE." COMMON SCHOOLS— see " Schools." COMPLAINT— see "Affrentioes and Servahts," " HiaEWATS," "Justiobb' Courts," and " Poor Laws." COMPOSITION— with creditors, see "Debtor and Csbdztor." CONSTABLES— official bond, . . fees of, duties of in the execution of process from justices' courts, — returns on summons, . the same on warrant, the same on attachment, copy of inventory on attachment, bond to prevent removal of goods attached, bond by claimant of property, . indorsement of levy on execution, inventory to attach to execution, bond of indemnity to, . . receipt of goods taken on execution, . . advertisement of sale, . returns on execution,.... .. .. .... .... see "Justices' Codbts," "Landlord and Tenant," Poor Laws," and " Sekviob and Return op Process." pass. 2S8 678 B78, 579 Sil 2U 430 241 SS4 260-266 241 164 207 430 242 SB3-555 665,666 666 666, 657 657 567 658 653 669 659 659 660 660,661 INDEX. 601 CONVEYANCES BY DEED AND MORTGAGE— paoh. practical remarks, 149-154 simple deed, ^55 quit claim deed, different forms, 155, 156 wananty deed, different forms, 156, 157 full covenant deed, different forma, 167, 158 deed of land subject to mortgage, 159 corporation deed,———————-— -— 1^9 deed of mortgaged premises, oa foreclosure by advertisement,- 160 deed by guardian, - 161 administrator's deed, 162 executor's deed, --- 1^3 deed of commissioner in partition, .. 164 deed with trust habendum clause, 165 deed by trustees of an absconding debtor, 166 sheriff's certificate of the sale of real estate on execution, 167 affidavit of redeeming creditor, 167 sheriff's deed on sale under execution, — - 168 sheriff's deed in partition, 169 sheriff's deed on foreclosure, _ - — 170 deed of a right of way,__ _ 171 conveyance of right of way for plank road, — _ 466 release by supervisor and commissioners to plank road com. pany,— -— — - 467 deed of a water course, _ 171 deed of confirmation, different forms, _ , 172, 173 lease andrelease, , 173, 174 deed of exchange of lands, _ 174 deed of pew in a church, 175 deed of gift, different forms, 272 agreement respecting party wall, 40 mortgage, usual form,..— -__—.__ 175 for part of purchase money, 176 with covenant to pay, 176 with fire clause, 176 with interest clause, ._.-__— __..._____— _— — .„ 177 by husband and wife, 178 by corporation, ._„ 179 to corporation,-. , 180 as security on note, 180 to secure indorser, _ 181 to executors, „ 182 on lease by an assignee,... 183 notice of sale on foreclosure of mortgage by advertisement,—. 184 affidavit of publication of the notice, 185 affidavit of posting, 18B affidavit of serving notice on parties interested,. —-._—_— 186 affidavit of auctioneer, 186 notice to accompany copy of notice of sale, _ 187 see "acknowledgments,btc.," "assignments," "covenants," " Homestead Exemption Law," " Landlord and Tenant," and Receipt and Release." CORPORATIONS— see " Banks and Corpobations." 602 UTDXX CORONERS— FAAB. practical remarks, 188,189 fees of, _ 243 oaths to be administered by a coroner, _ 190 inquisition, different forms, 190, 191,192,193,194, 195 warrant to be issued by a coroner, 196 examinations before coroner, or coroner and jury, -_.- 196, 197 annual statement to board of EupervisorB,..-- . 197 COUNTY CLERKS- fees of, . . 238 see "Clerks and Criers," "Debtor and Creditor," "Fer- ries," Mechanics' and Laborers' Lien," " Naturaliza- tion," " Official Oath and Bond," and "Schools." COUNTY JUDGE— fees of, 244 see "Acknowledgments, etc.," "Debtor and Creditor," '' Ddwer," " Highways," " Landlord and Tenant," " Luna- tics," and Plank Roads." COUNTY SUPERINTENDENTS OF THE POOR— fees of, _ »_.-_- 245 official bond, _ „ 473 see "Apprentices and Servants," " Poor Laws," and "Town Auditors." COUNTY TREASURER— fees of, : 245 warrant under act of 1346,-....... _ . ...... 680 COVENANTS— practical remarks, ...— .. 198, 199 general forms of covenants, 199, 200 covenant of seizin, different forms,-... 200 several covenant of joint grantors, — - 200 covenant against incumbrance, - -— 200,201 for further assurance, - - 201 for quiet enjoyment, — - 201 by tenant for life, and tenant in fee of the reversion, _-- 201 mutual and dependent covenant, 202 independent covenants, 203 CRIERS— fees of, 246 nee " Clerks and Criers." DEBTOR AND CREDITOR— practical remarks, -.... — ...............-—..—.-.. letter of license to a debtor, — 206 composition with creditors, !.207 petition of insolvent and his creditors under two-third act, and accompanying forms, 208,209 order for creditors to show cause, 211 notice to be published, 211 notice to be served, —.--..-— 212 proof of F?ervice, - - 212 order for assignment, -. -— 212 assignment and acknowledgment, 213 oath of assignee, and notice, - — - 214 certificate of assignee, and affidavit of execution, 214,215 certificate of county clerk that assignment has been recorded,- 215 htdex. 603 DEBTOR AND CREDITOR— '■*■«■• discharge of insolvent, 216 petition under non-imprisonment act, afier suit commenced, and accompanying forms, 216,217,218 order for assignment, 218 assignment and cenificate, _— -— - 218,219 discharge, _ - •■ 219 affidavit on application for appointment of trustees of the estate of a debtor confined for crime, 220 appointment of trustees and oath,.- 220, 221 see "Receipt and Release." DEEDS— see "Agreements and Contracts," " Conveyances bt Deed AND Mortgage," and "Gifts." DISORDERLY PERSONS— see "PooE Laws." DISTRICT CLERKS— see " Schools." DISTRICT COLLECTOR— see "Collectors op School Districts." DOWER— practical remarks, _ .___._„._. 222-22S assignment of dower, , 225 release of, .....—.— 226 petition for admeasurement of, _ ,__ 226 notice to annex to petitions, . 227 notice by heirs, or owners, 227 petition f(ir admeasurement by heirs or owners, 227 order for admeasurement, 227 oath of commissioners, _ 223 commissioner's report, 228 appeal to supreme court, and bond, _ 220 see "Husband and Wife," and "Wills." DRUNKARDS— see "Poor Laws." DUE BILL— form of, for goods, . 108 EXCHANGE— see "Bills op Exchange," etc., and " Conveyances," eto. EXCISE- practical remarks, _ __..._.. 230,231 notice of special meeting of board, 232 form of minutes of board of excise, 232 license to tavern keeper to sell spirituous liquors, 233 bond of tavern keeper, .„ 233 license to tavern keeper under actof 1843, 234 bond on obtaining above license, - 234 grocer's license, 234 grocer's bond, , 236 see " Poor Laws." EXECUTION— see "Highways," Justices' Courts," "Landlord and Ten- ant," "Mechanics' AND Laborers' Lien," " Poor Laws," "Service and Return of Process," and "Taxes." 604 msEx. EXECUTORS— fees of, „_ ._„._. nomination of in will, bond to, deed from, , . mortgage to, acknowledgment by, satisfaction of mortgage by, description of suit, lease of legacy, legatees' bond, EXEMPTION— of homestead from sale on execution, of personal property, from taxes, waiver by tenant, FEES OF OFFICERS— practical remarks, arbitrator's fees, assessor's fees, auctioneer's commission, broker's fees, county clerk's fees, „ clerk of the board of supervisors, commissioners to take testimony in justice's courts, commissioners to make partition, or admeasure dower,-. commissioner of deeds, commissioners of excise, commissioners of highways, commissioners to loan deposit fund, constable's fees, coroner's fees, .- county judges' fees, in special cases, county superintendents of the poor, county treasurer's fees, crier's fees, executor's and administrator's fees, fence viewer's fees, - — juror's fees, justices of the peace, 1... notary's fees, - overseers of the poor, overseers of highways, potmd master's fees, printer's fees, referees' fees, register of deeds in the city of New York, school district collector's fees, sealers of weights and measures, sheriff's fees, supervisor's fees, surrogate's fees, surveyor's fees, _ town clerk's fees, town collector's fees, PAGB. 246 590 124 163 182 IS 22 343 513 125,126 329-333 654 673 387 236,237 237 238 240 241 241 241 aji 241 245 245 243 244 246 24f 246 346 247 249 249 260 260 250 260 250 251 251 251 264 255 257 258 nn)Ex 60S PEES OF OFFICERS- trustees of debtors,, . witnesses' fees, . FENCE VIEWERS— practical remarks, . „ certiiicate where stray is not redeemed, - of charges for keeping strays, , of value of fence built by an adjoining owner, ^ on hearing disputes between owners of adjoining lands, of damages where division fence is out of repair, where cattle are distrained doing damage, certificate of consent to remove division fence, and notice, certificate that sheep or lambs were killed by dogs, - see "Strays.** FERRIES— practical remarks, application for a ferry, notice of the application,.. - — recognizance, , license, . clerk's certificate, FORCIBLE ENTRY AND DETAINER— see "Landlord and Tenant.'* FORECLOSURE OF MORTGAGE— notice of sale on chattel mortgage, advertisement of sale on foreclosure of mortgage on real estate, afiidavit of publication, aflidavit of posting, afiidavit of auctioneer, Qotice to persons interested, deed on foreclosure, ,... GIFTS— practical remarks, deed of gift of personal estate, the same, of real estate, GRANTS— see " Conveyances by Deed and Mortoaqe," " Gifts," and "Landlord and Tenant." GUARANTY— see "Bills op Exghanbe and Fbohissort Notes." GUARDIAN— deed by, . — HIGHWAYS— practical remarks, appointment of commissioners to fill vacancy, commissioner's bond, fees of commissioners, order for ascertaining road imperfectly described, or not re* corded, - annual account to town auditors, statement and estimate for supervisor,.. notice of application to raise additional sum, order dividing town into districts, appointment of overseer to fill vacancy, overseer's list, . FASB. 259 269 260-262 263 263 263 264 264 265 26B 266 267,263 268 269 269 270 270 120 181 185 18S ISS 187 160 271 272 273 161 274-283 283 284 241 283 286 2S6 23S 287 606 INDEX HIGHWAYS— list of non-resident lands, - assessment of highway labor, - appeal lo three judges by a non-resident, - notice to commissioner of appeal, commispioner's consent to work in another district, overseer's warrant _ _ _ new assessment by overseer, _ overseer's notice to agent of non-resident, notice to work in case of non-residents, assessment for a scraper, - complaint against an overseer, and security, assessment of persons omitted in the regular list, appeal from assessment of overseer, - complaints for refusing to work, or furnish team, summons for refusing to work, conviction on complaint, and warrant to collect fine,..!: overseer's list of non-resident lands for supervisor, and affida- vit, annual account of overseer, and oath, _ application for alteration of a road, _ consent of parties to accompany application, application to lay out new road, order altering a highway, release by owner of land, on laying out highway, notice of application to lay out a highway, _ freeholder's certificate, _ notice to occupant, on application to lay out ahighway, order laying out highway, without the consent of the owner of land, _ agreement as to damages on laying out highway, application to county courts to appoint commissioners to assess damages, appointment of commissioners, _ notice to commissioners of their appointment, oath of commissioners, oath of witnesses before commissioners, assessment of commissioners, notice of re-assessraent, notice to town clerk to draw jury,. — 1 . certificate of drawing jury, — _.— - summons of justice,. oath of jurors and witnesses, . verdict of jury, - certificate of justice, -. — - application to discontinue old road, oath to freeholders,..- certificate lo discontinue, order discontinuing road,. _ appeal to county judge from the determination of a commis- sioner, " appointment of referees by county judge, _ appointment of referees by a justice of the sessions, . . notice to referees of their appointment, - - notice by referees to the commissioner, notice to appellant, or applicant, ^ - subpoena on an appeal, FAGB. 287 289 289 289 290 290 291 291 291,292 292 293 293 294 294, 295 295, 296 296, 297 297 298 298 298 299 299 299 3U0 300 301 301 302 302 302 303 303 303 304: 304 305 305 305 306 306 306 307 307 307 303 308 309 309 309 310 INDEX. 601 HIGHWAYS- oalh of referees and witness, decision of referees on an ovder in relation to altering or dis- continuing a road, decision on order refusing to lay out a road, notice to remove fences, after a final decision, order to remove fences, in a case of encroachment, and notice to occupant, precept to summon freeholders in a case of encroachment, and other forms on the inquiry,. - warrant to collect costs in a case of encroachment, order of commissioners of adjoining towns for laying out high- way, application for a private road, and notico to the occupant, notice to town cleric and persons interested for re-assessment,. HOLDING OVER BY TENANT- see " Landlord and Tenant." HOUSE- see "Landlord and Tenant," and "Town Houses." HUSBAND AND WIFE— practical remarks, short form of marriage, marriage certificate, certificate of proof, or acknowledgment, oath of witness to a marriage, or to a certificate, marriage articles, settlement in contemplation of marriage, ante-nuptial agreement, _ jointure, in lieu of dower, articles of separation, see "Dower," and "Wills." INSOLVENT LAW— see "Debtor and Creditor." JUDGMENT— satisfaction of, release of real estate by judgment creditor, assignment of judgment, , HOMESTEAD EXEMPTION LAW— practical remarks, clause in a deed of properly to be exempt, notice to county clerk and acknowledgment, release or waiver of exemjHion, oath to jurors by sherifT. certificate of jurors setting off' part of exempt premises, certificate that property cannot be divided, notice of the sheriff to debtor, JURORS— fees of, - see "Highways," "Jusiioes' Courts," and "Landlord and Tenant." JUSTICES' COURTS— practical remarks, summons, afiidavit for short summons, tliflerent forms, description of parties suing in' a particular character, „ PAan. 310 310 311 311 312 313, 314 3U 3IS 315,316 316, 317 318-322 322 322 323 323 323 324 326 327 328 24,25 512 77,78 329,330 330 330,331 331 331 332 332 333 246 334-341 342 342 343 608 INDBX. roSTICES' COURTS- affidavit for warrant in an action for wrong, the same, in an action on contract, Becurity on issuing warrant, or short summons, different forms, warrant in a civil action. 1 application for an attachment, and forms of affidavits, bond on attachment, . , ^^^ attachment,-. bond on adjournment, different forms, affidavit of justification of bail, complaint in an action arising on contract, complaint for injuring personal property, . complaint for breach of warranty, complaint for fraud or deceit, , complaint for conversion of personal property, complaint for injury to real property, complaint by an assignee, answer of defendant, . answer, with notice, ^ oaths on application for adjournment, examination of witness, on defendant's application for an ad- journment, eubpcena, subpoena, on application for an attachment, eubpcena for special sessions, affidavit of service of eubpcena, oath to party proving service of subprena,. attachment for a witness, notice of the application for a commission, and necessary oaths, commission, and forms for the commissioner, venire, and oath on objection to the service by a constable, forms of oaths on the trial of a cause, written confession of judgment, and affidavit, , transcript of judgment, execution, and renewal, complaint to obtain surety of the peace, and other forms on . application for peace warrant, complaint for assault and battery, and warrant, general form of a warrant, complaint for larceny and warrant, complaint for murder, different forms, complaint for poisoning, complaint against accessory after the fact, complaint for arson, different forms, complaint for setting fire to grain growing, complaint for manslaughter, complaint for killing an unborn child, different forms, complaint for rape, different forms, .„ complaint for assault with intent to commit a rape, complaint for forcible abduction of female, complaint for enticing away female under fourteen years...... complaint for mayhem or maiming, complaint for child stealing, complaint for abandoning child, .„ complaint for shooting at with intent to kill, &c., complaint for assault with deadly weapon.................... PAQB. 343 344 344 345 345,346 346 347 348 348 349 349 349 350 350 350 351 351 351 352 353 353 353 354 354 354, 365 355,366 36? 357,368 369,360 360, 361 361, 362 362 362, 363 363, 364 363 364 365 366 366 366 367 367 367 368 368 369 INDEX. 609 JUSTICES' COURTS- paob complaint for poieoning food,.-.. 370 complaint for poisoning well, 370 complaint for asaaull with intent to rob,. - 370 complaint for bui'glary, different forma, _ _ 371 complaint for constructive burglary, 372 complaint for forgeiy, different forms, _ - 372, 373 complaint forpassing, or offering, counterfeit bank notes, 373 complaint for counterfeiting, or altering, bank notes, „ 373 complaint for obtaining pi'operty by false token, or by falsely personating another, _ _ , 373 complaint foe obtaining money or property, by false pretences, 374 complaim for robbery, _ _ 374 complaint for embeazlcment, __.__.-_.- _ , 374 complaint for receiving stolen goods,.... _. _ 375 complaint for perjury, _ 375 complaint for bigamy,__... 375 complaint for knowingly manning another's wife, 379 complaint for maliciously poisoning an animal........ ... 378 complaint for malicious trespass, or girdling trees, . 370 complaint for procuring abortion, _ — ._ 377 complaint for making an affray,.. __ _..-_.— ...... 377 complaint for cruelty to animals, . .... . ^Ti complaint for a rout or riot,.. -.._ .... 377 complaint for selling unwholesome food, 378 complaint for disturbing religious meeting, _ 378 complaint to obtain search warrant, and warrant,... 378, 379 oath of complainant, or witness, on a complaint, 37> recognizance ill justices' courts, 3T> record of conviction at special sessions, _ _ 380 commitment from special sessions, 380 Bee "Acknowledgments," etc., "Apprentices and Servants," "Fees of Officers," "Highways," "Husband and Wife,'* "Landlord and Tenant," "Official Oath and Bond," "Pension Vouchers," "Poor Laws," ''Service and Re- turn OF Process," " Town Auditors," and " Town Houses." JUSTICES OF THE PEACE— fees of, .. ... 247 see "Justices' Courts." LABORERS— see "Mechanics' and Laborers' Lien." LANDLORD AND TENANT— practical remarks, ...... 3SI-385 landlord's certificate of renting^ - 380 tenants' agreement, _ 335 security for rent, , 385 landlord's certificate, tenant not to underlet, Ac., 380 tenant's agreement not to underlet,.- .._,-..-.._.-_..-_.. 380 tenant's agreement and pledge of property, 380 landlord's certificate and tenant's agreement under exemption act of 1842, - 387 agreement for lease, ^ 388 lease and chattel mortgage, ^ ... 389 agreement between housekeeper and lodger, .- 390 indenture of lease,. .,..— 391 3d «10 iin>Bz. LANDLORD AND TENANT— PAOB. farming lease onsharea, ............ 392 BXU'render of a term of years,.— 393 surrender of lease to the lessor, - 394 conveyance by lease and release,.. 173, 174 mortgage on lease,.,.. . . ......„-• 183 assigmnent of lease, 80, 81 power of attorney to collect rents, . 504 notice to quit, by landlord, , 394 notice to quit, by tenant, .. . 395 notice to quit, where commencement of tenancy is uncertain,.. 395 notice to quit or pay double value, 395 notice of intention to re-enter under law of 1846,. „ „.„-_- 396 affidavit of holding over, 396 summons to remove tenant holding over, and other forms ne- cessary in this proceeding, 396, 397 affidavit of default in paying rent,..: . 398 summons and other forms in preceding case, . 398, 399 affidavit to oppose issuing warrant of removal, __-_ 399 precept for a jury where the removal is opposed, and other forms on trial before jury, _ 399,400 security for rent, on proceeding for non-payment, ...... 400 notice to remove, in case of tenancy at will, . 401 affidavit for summons against tenant at will, and other forms in the proceeding to remove, 401,402 affidavit for appeal to county court, ... 403 notice of appeal, 404 undertaking an appeal, L . 404 petition and affidavit where premises are vacated, ....... 405 notice and record of justice, .. — . 405,^)6 bond on appeal,— — 407 notices to justice and landlord, . 407 complaint for forcible entry, and affidavit, 408 precept to summon jury of inquiry, and otlier forms, 408,409,410 venire for petit jury in preceding case, . 410 warrant to make restitution,.... . . 411 complaint for forcible detainer, or holding out, and affidavit,.. 412 see "Acknowledgments," etc. LEASE- ^^^^^ ^^^ ggg^ ^^^ ^^ ^^ g^j^ ^^ LEGACY— power to receive 504 release of, -— — — . 513 bequest of, in will, - - - 589 LEGATEE— bond of, 125 the same before suit, 126 power to receive legacy,—- — . 604 release of legacy, - — ......... 513 bequest of legacy in will, 689 LETTER OF ATTORNEY— see " Powers op Attorhbt." HBRARIAN- eee "Schools." nn>xx dtl UCENSE— FAra. letter of, to a deMor,... 206 of tayern keepei' to sell Bpirituoua liquors, „._.. 233 of tavom keeper under act of 1843, ., 234 grocer's license, -_. . 234 to keep ferry, . 270 UEN- Gee "Bills of Sals," eto., " Landlord and Tenant," and "MSOHANICS' AND LABORBRa' LlEN." LUNATICS- practical remarks, . 413, 4t4 request to superintendent of the asylum, „ 414 certificate of physicians, to accompany request, 414 application to county judge, and affidavit, 415 order of judge on the application, ._._ 415 suhpffinaand other forma on the inquiry hefore the judge, ___. 416,417 warrant to confine lunatic,—-..— _„. 485 MARRIAGE-r form for the ceremony of, 322 certificate of marriage, . 322 acknowledgment, or proof, of certificate, _..-..... 323 oath of witness to a marriage, or certificate,.-.,.... 323 articles of marriage, 323 marriage settlement, 334 ante-nuptial agreement, 326 jointure, in lieu of dower, 327 articles of separation, 323 see "Dower," "Husband and Wife," and "Wills." MECHANICS' AND LABORERS' LIEN— practical remarks, 418,419,420 notice of filing specification, . 420 notice of filing contract, 420 notice to appear and submit to account, &c., . 420 notice to produce bill of particulars of oflset, „„-„_.„„ 421 statement by laborer and contractor, 421 writ of inquiry from court, 421 affidavit for execution, , 422 execution by county clerk, „ 428 MORTGAGE— satisfaction of, 22,23, 24 biUof sale, dilferent forms, chattel mortgage, different forms, 115, 116,117, 118, 119 renewal of chattel mortgage, , 120 notice of sale on chattel mortgage, .. 120 mortgage of real estate, usual form, , 175 for part of purchase money, 176 with covenant to pay, 176 with fire clause, 176 with interest clause, 177 by husband and wife, 178 by corporation,.. 179 to corporation, 180 aa security on note, 180 to secure indorser, 181 to executors, 182 on lease by an assignee, 183 612 INDEX. MORTGAGE— pAoa. assignment of, different forms, - — 79, 80 lease and chattel mortgage, ■_ ._....._. . 386, 389 forms on foreclosure of, by advertisement, 134, 185, 186, 187 NATURALIZATION- practical remarks, ., 424 425 declaration of intention, and clerk's certificate, 425 oath of alien, - 426 affidavit of alien under eighteen at the time of bis arrival, . 426 oath to support constitution, &c., . 426 proof of good behavior, 427 declaration of intention to become a citizen for three years past, 427 certificate of citizenship, .. 427 deposition of alien in order to hold real estate, .« 423 NOTARY— fees of, 249 forms of protests, notice, and certificate of service,. 103, 109, 110 general form of notarial certificate, ..— ....... 110 NOTES— forms of, 106, 107 OATH- see "Clerks and Criers," " Highways," "Justices' Cottbts," " Landlord and Tenant," " Official Oath and Bond," and "Poor Laws." OFFICERS- see " Fees of Officers," and " Official Oath and Bond." OFFICIAL OATH AND BOND— practical remarks, .... . .. 429 official oath, -. .... 430 notice of acceptance of a town office,.... ......... 430 constable's bond, . .. 430 sheriff's bond, 430 oath of sheriff's sureties, . . 431 bond of a deputy sheriff, .. 431 general form of an official bond,.... . . .. 432 ORDERS— forms of, 108 OVERSEERS OF HIGHWAYS- notice of acceptance of office,.... ............................ 430 fees of, 250 see "Highways." OVERSEERS OF THE POOR— oath of office, ...... ...... ............ 430 fees of, 249 see "Apprentices and Servants," and " Poor Laws." PARTITION— deed of commissioners,.... ........................ .......... 164 deed of sheriff, 169 fees of commissioners, . .. • 241 PARTNERSHIP— practical remarks, 433 435 articlesof co-parlnership, general form, 436 the same, between country merchants, 437 agreement to renew partnership............... 439 INDEX 613 PARTNERSHIP— paob. agreement of dissolution, . 439 certificate of limited partnership, 439 acknowledgment of the certificate,.. 440 affidavit of general partner, 440 order for publication of notice, 440 notice to be published, 441 PATENTS— practical remarks, 442, 443, 444 petition for a patent, 444 specification, different forms, 444,445 oath to specification, 446 application for patent for a design, ^ 446 certificate of deposit of patent fee, 447 withdrawal and receipt, 447 surrender for re-issue, 447 assignment of patent, different forms, 447, 448, 449 disclaimer, - 450 caveat,.-.. ........................... ... 450 addition of new improvements....... .......... ... 451 oath on restoring drawings, . „.- 451 PENSION VOUCHERS— practical remarks, . . 452|453 affidavit of pensioner, 454 magistrate's certificate, where pension has remained unclaimed for fourteen months, , 454 certificate of the clerk, 455 power of attorney to draw pension, and acknowledgment,.... 455 oath of the attorney, 455 affidavit of guardian of pensioner,.-. 456 affidavit by a widow, a pensioner, 456 affidavit of a widow under act of 1843, 457 oath of identity for the widow or child of a deceased pen- sioner, ..... ......... . 457 power of attorney for widow or child of deceased pensioner,.- . 458 • certificate of court to death of pensioner, ..... .... 458 evidence where certificate is illegally withheld,. 458 certificate of magistrate and clerk, 459 PLANK ROADS— practical remarks, 460-464 notice of subscription, 464 articles of association,......— ............. . 464 scrip certificate, . .— 465 affidavit of amount of stock paid in, 466 notice of application to board of supervisors,. 466 conveyance of right of way by owner, - 466 consent of inhabitants, 467 release of right of way by supervisor and commissioners...... 467 acknowledgment of a survey, 468 notice to pay in installment...... . 463 proxy, 95 notice of drawing jury to assess damages, 468 notice of meeting of jury, - .469 POOR LAWS— practical remarks, 470-473 bond of county superintendent, ..._., ..— .—— ..—.... 473 614 INDEX. POOR LAWS- PAOa application to compel the eupport of a poor relative, 474 notice of the application, and affidavit of eervioe, 474 warrant to seize goods of an aibaconding father, husband or mother, and other forms in the proceeding,. - . 475, 476 order to discharge warrant and restore property, ...... 476 notice from one town to another to provide for the support of a pauper, - - 477 notice that the seulement will be contested, and other forms, on the trial before the superintendents, — - 477, 478 superintendent's notice that pauper will be supported at the expense of a town, _„ 478 decision of superintendents on re-examining settlement........ 479 certificate of superintendent that a person is a county pauper, 479 notice of hearing on the certificate, before the board, and other forms on the investigation, _ « 479.480 order of overseer to remove pauper to county house, _... 481 certificate of keeper of poor house for expense of removal,..- 481 superintendent's order to expend over ten dollars, ...... 481 notice of improper removal of pauper from another county,.. 481 annual report of the s^perintendents to the secretary of state, 482 supervisor's report for a town, where all the poor are not a county charge, 483 complaint against a beggar, or vagrant, 483 warrant, record of conviction, and commitment on the same,.. 483, 484 warrant to commit a child to the county house........ 485 consent by overseers to bind child, .,....„ 50 warrant to confine a lunatic, . 485 designation of habitual drunkard, and notice......... .... . .. 486 notice to overeer that the fact of drunkenness will be tried by a juiy, and other forms necessary on the trial, 486, 437 execution against the drunkard,.. - 4OT execution against the overseer,. . 488 revocation of overseer where drunkard reforms, ........ 488 complaint against adisorderly person, and recognizance, 488, 489 discharge of disorderly person, 489 jailer's report relative to disorderly persons,.-.. . 489 application of superintendent, or overseer, in case of bastardy, 490 examination of mother, different forms, - 490 warrant to apprehend reputed father, and subpcena, .... 491 bond on adjournment,. — — ... 492 order of filiation on arrest in same county, ...r. 492 fcond on order of filiation, 493 warrant to commit putative father,.. ........ 494 warrant to release putative father from jail, .. 494 indorsement on warrant to be executed in a foreign county,... 495 indorsement of justice in foreign county, 495 bond on arrest in foreign county, and certificate of discharge,. 496 order of filiation in the absence of reputed father arrested in foreign county, 496 Warrant to commit mother refusing to disclose name of father,. 497 ■ummons where mother of bastard has property in her own right „.- 498 order to compel mother to support bastard child, 498 warrant to commit mother for not executing bond, 499 war>*ant tosizee property of absconding father, , 500 lETDBX. 015 POOR LAWS- "»■ order reducing sum in the order offillation, 500 notices of application to the court of sessions to increase, and reduce sum, - - 601 notice of appeal fi-om order of filiation, ... — 501 see "Apprentices and Servamtb.'* POUND MASTERS- feesof, 250 see " Strays." POWERS OF ATTORNEY— practical remarks, - 602, 603 general form of power of attorney, i 503 power to collect debts, 504 to collect rcnta, 504 to receive a legacy,.— ._-„, -— 604 10 receive distributive share of pci^onal estate,. 505 to take charge of lands, 506 to transfer stock, 95 to receive dividend, 96 to confess Judgment, '. _ - 127 to draw pension, _ — ... 455 the same by widow or child of deceased pensioner, _ 458 general power to transact business, _ 506 general custom house powei', 507 power to sell and convey real estate,. 607 power to cflect insurance, . 607 substitution of an attorney, . 508 revocation of power, ..- . .. 608 PRINTERS- fcesof, 250 amdavit of publication ofnoticcof sale on mortgage, , 185 PROCESS— see " Service and Retdrn of Process." PROMISSORY NOTES— forms of, 106, 107 PROTEST— . , .. forms of protest, notice, and certincato of service, 108, 109, 110 fees of notary, 240 PROXY— form of,and affidavit, 95 oalh of proxy, ! .. 96 RECEIPT AND RELEASE— practical remarks, 609, 510 receipt, different forms, 610, 5!1 release of all demands, 511 special release, 511 release by crcditornamed in an assignment,.... . __... 511 release of part of mortgascd premises,,.,- 612 release by judgment creditor,. , 612 release of legacy. 513 release to restore competency of witness, different forma, 513, 614 release of dower, , 226 release by owner of land on altering highway, . . MO release by supervisor and^JiJ"^ """' " ""'" ""^ pTanTt "road com- pany,....--. 467 release in pursuance of an award of arbitrator, , 71 016 INDEX. KEDEMFTION- PAOb. of real estate by jndgment creditori forma for, 167 REFEREES- fees of, 250 see "HiOHWAYS." RELEASE- lease and release,'. .... 173, 174 release of dower, ._._.-_...-.._....__. ........... 226 ■of ownor of land on laying out highway,. _....._....... __..... 299 surrender of term of years,.. ..._................_.._._. 393 surrenderor lease, 394 release of all demands, 5U special release...... .........._..__...... ...... 511 by creditor named in assignment, . 511 of part of mortgaged premises, _ .... 612 by judgment creditor,.. . fil2 of legacy, 513 to restore competency of witness, different forms, -..„. 613| 514 release of party to arbitration in pursuance of an award,.. release by supervisor and commissioners to plank road com- pany, '- 467 REVOCATION— of submission to arbitration, . ... 69 of power of attorney, . 603 SALE— see "Bills of Sale," etc., " Landlord and Tbmaht," and "Sbrvicb and Return op Process." SATISFACTION- of judgment, ........ 21, 25 of mortgage, 22, 23, 24 SCHOOLS- practical remarks, — .... 615-524 town superintendent's bond, . 524 notice of supervisor to furnish additional security, . . 525 warrant appointing town superintendent to fill vacancy........ 525 resolution creatingnew district, .. 525 consent of trustees, ... 626 notice to trustees not consenting, and proof of service,.... ^6, 527 notice of the first meeting in a district to organize, . 527 notice of sale of school house by the town superintendent,.... 523 apportionment of proceeds of the sale, - .. 628 resolutions for the alteration, or formation, of districts, 528, 529 certificate to teacher by town superintendent, 529 instrument annulling the certificate, 530 annual report of town superintendent........ — . ......... 530 list of votes to be kept by district clerk, 533 forms of minutes of proceedings of district meetings, ...... 533 declaration to be made by a person challenged at district meet- ing, 534 resolutions relative to sale and purchase of sites, and erection of school house, 534 order of trustees for teachers' wages, ...... 535 order Tornuiaij- »»»^v, ^..__. _..__.._.._...,_.... 536 account of trustees, and inventory of district pi-open/, .. 535, 536 annual estimate of trustees, 636 moEx. 617 8CH00LS- notice to be posted on school house door,- tax list and warrant, 1. —.—.... collector's bond, - - notice that collector will veeeive taxes, renewal of warrant, return of collector, - notice of levy and sale by collector, — - fees of collector, - ^ verification of an account for costs, notice to be served with copy of the account, order of board of supervisors, notice to accompany copy of the order, annual report of trustees, : the same, where district is formed out of two or more towns,. notice of district meeting, different forms, clerk's notice of election of district officers, — . librarian's receipt, and trustees' certificate, _ entry of librarian in books belonging to the district, form of keeping librarian's book, weekly roll, and quarterly list of teacher, teacher's abstract, and account of inspections, appointment of district officer to fill vacancy by trustees, appointment of a trustee to fill a vacancy, appeal to state superintendent, and affidavits, statement where parties agree as to the facts, notice to be served with appeal, and proof of service, answer to an appeal, SEALER— oath of office, _. lees of, p .. SEPARATION— articles of,_... ......... .. ...... SERVANTS— see " Apprentices and Servants." SERVICE AND RETURN OF PROCESS— practical remarks, . -._..., forms of returns on summons, the same, on warrant, the same, on attachment, copy of inventory on attachment, bond to prevent removal of goods attached, bond by claimant of property attached, indorsement of levy on execution, inventory to attach to execution, bond to indemnify constable, receipt of goods taken on execution, constable's advertisement of sale,. return to execution, different fortns, ._ SHEEP— injuries to, ... . .. SHERIFF— oath of office, bond, . bond of deputy, bond of indemnity, PAOR. 636 637 638 639 639 639 639 251 640 540 541 641 641 543 644,645 646 646 646 646 647 647,648 548 543 549,550 660 651 652 430 251 328 553-5SS 655,566 5S6 556, 557 667 657 663 653 659 559 569 660 560,661 2S6 430 430 431 126 618 INDEX. SHERIFF— P^GB assignment of bail bond, _ 82 acknowledgment by sheriff or deputy, , 15,16 certificate of the sale of real estate, „ .„ 167 affida7it of redeeming creditor, . .„ 167 deed on sale under execution, 168 deed in partition, _ . 169 deed on foreclosure of mortgage, .. 170 fees of, __ ., _._. ... __._„ 251 STEAYS— practical remarks, ., 662, 563 note to be delivered to town clerk,—.. ____._„ .... .... 663 notice of sale where stray is not redeemed, -—..— „._,_. 563 receipt of supervisor for proceeds of sale of stray, 663 see "Fence Viewers.' SUBSCRIPTION— to raise money to build church or bridge, , 42 SITMMARY PROCEEDINGS TO RECOVER LAND— see "Landlord and Tenant." SUMMONS— see "Justices' Courts," and "Service and Return op PROCEas." SUPERVISORS— practical remarks, ____. „__. — .«■- „_, 564-567 oath of office, .__ _ _ 667 fees of, „ ___.... 254 form of keeping supervisor's book, 557 certificate on examination of hia accounts, _. 568 certificate to accompany copy of entries in townclerk's book,___ 668 notice of special meeting of board of excise, „_. 232 forms required by the board of excise, _ _ .__ 232-^35 appointment of a commissioner of highways to fill vacancy,.., 283 report where all the poor are not a county charge, .. 483 notice to town superintendent to furnish additional security,... 625 receipt of proceeds of sale of stray, ._._. .__. 663 approval of sureties in a bond,-.. .. ......__..__..... 569 list of jurors, ^ . 569 list of grand jurors, , 670 tax bill, 570,576 notice of election, 570 alteration of election district, _. 671 division of a new town into election districts, 571 notice of meeting to fill vacancy in office of inspector of elec- tions, . -— — -..„.-. 572 appointment of inspector of elections to fill vacancy,. ,. 572 affidavit verifying account,. __.» . .„__. .. 582 bond of commissioner of highways and approval, ... 284 statement and estimate of commissioner for supervisor........ 286 overseer's list of non-resident lands for, .. 287 constable's bond, and approval............................... 430 town superintendent's bond, and approval, .. 621 see "Excise," "Highways," "Taxes," "Town AuDixoiffi," and "Town Houses." SURRENDER— of a term of years, ,^ 393 of a lease to the lessor, -^-— -.— 3^^ of potent furTc-itJcnicr,_i.._... ........ ..— ..-. — ............ 447 INDXZ. 010 SURROGATE— fees'of, .— . -— .-— — _..-.••———•"•■-——•- see " DowBB," and " Wins." SURVEYOR— feea of,.... .„.._,—————-——— TAXES— practical remarks, _— ..— — — assessment roll, notice of completion of assessment, .... — ....... affidarit to reduce tax, certificate to assessment roll, . notice to collector, collector's bond, collector's bond under militia law, notice of collector, ... county treasurer's warrant,.... ..... see " Highways." TENANT— see "Landlord and Tbhaht." TOWN ACCOUNTS— see " Town Acditors." TOWN AUDITORS— practical remarks, . .. . — . .... .... ......... .. certificate of auditors, .....-_. . . .... affidavit to verify account, . ...... abstract of accounts, . — . .. annual account of commissioner of highways to........ ... 'fOWN CLERK— oath of office, — . . .—.--...-. fees of, see " HioHWATs," " Husband and Wife," •' Official Oath and Bond," " Schools," " Town Auditoes," and " Town Houses." TOWN COLLECTOR— fees of, bond, . . notice that tazes will be received, TOWN HOUSES— practical remarks, notice of intention to propose resolution, .-_. certificate of canvassers at town meeting, . .. resolution of board of supervisors, ..._.._... TOWN SEALER— oath of office, . .............. fees of, . .. ...... ..... TRUST— deed with trust habendum clause, . .......... creation of by will, foralife, orlives,.... ...... TRUSTEES— fees of trustees of debtors, „, .... .... deed by trustees of absconding debtors, . ,. deed with trust clause, . acknowledgment by, . .... rAflx. 2S5 2S7 673-57S 676 677 677 678 578 678 679 679 680 681 682 682 285 430 2S8 2S8 678, 679 679 684 684 685 686 430 261 165 692 259 166 166 19 CONSTITUTIOI OP THE STATE OF NEW-YORK. APPROVED NOVEMBER 3, 1846. We, the People of the State of New- York, grateful to Almiguty God for our freedom, in order to secure its blessings, do establish this Conatitution : ARTICLE I. BILL OP RIGHTS. Sec. 1. No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the lavr of the land, or the judgment of his peers. Sec. 2. The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate ftrever. But a jury trial may be waived by the parties in all civil cases, in the manner to be prescribed by law. Sec. 3. The free exercise and enjoyment of religious profession and wor- ship, without discrimination or preference, shall forever be allowed in this State to all mankind ; and no person shall be rendered incompetent to be 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. Sec. 4. The pnvilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion, or invasion, the pubUo safety may require its suspension. Sec. 5. Excessive bail shall not be required, nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be •unreasonably detained. Sec. G. No person shall be held to answer for a capital or otherwise in- famous crime (except in cases of impeachment, and in cases of the militia, when in actual service ; and the land and naval forces in time of war, or which this State may keep with the consent of Congress in time of peace ; and in cases of petit larceny, under the regulation of the Legislature), unless on presentment or indictment of a grand jury, and in any trial in any court whatever, the party accused shall be allowed to appear and defend in person and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offence ; nor shall he be compelled in any crim- inal case to be a witness against himself; nor be deprived of life, liberly, or IV CONSTITUTION OF NEW-YORK. property, without due process of law ; nor shall private property be takeii T6i public use without just compensation. Seo. 7. When private property shall be taken for any public use, the com- pensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a Court of Record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law ; but in every case the necessity of the road, and the amount of all damages to be sustained by the opening thereof, shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefitted. Sec. 8. Every citizen may freely speak, write and publish, his sentiments bn all subjects, being responsible for the abuse of that right ; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence to the jury ; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact. Seo. 9. The assent of two-thirds of the members elected to each branch of the Legislature, shall be requisite to every bill appropriating the public moneys or property for local or private purposes. Seo. 10. No law shall be passed abridging the right of the people peace- ably to assemble, and to petition the government,' or any department thereof; nor shall any divorce be granted, otherwise than by due judicial proceedings ; nor shall any lottery hereafter be authorized, or any sale of lottery tickets allowed, within this State. Sec. 11. The people of this State, in their right of sovereignty, are deemed to possess the original and ultimate property in and to all lands within the jurisdiction of the State ; and all lands, the title to which shall fail, from a defect of heirs, shall revert or escheat to the people. Sec. 13. All feudal tenures of every description, with all theu: incidents, are declared to be abolished; saving, however, all rents and services certain which at any time heretofore have been lawfully created or reserved. Sec. 13. All lands within this State are declared to be allodial, so that, subject only to the liability to escheat, the entire and absolute property is vested in the oWners according to the nature of their respective estates. Sec. 14. No lease or grant of agricultural land for a longer period than twelve years, hereafter made, in which shall be reserved any rent or service of any kind, shall be vaUd. Sec. 15. All fines, quarter sales, or other like restraints upon alienation reserved in any grant of land hereafter to be made, shall be void. Sec. 16. No purchase or contract for the sale of lands in this State, made since the fourteenth day of October, one thousand seven hundred and seventy- five, or which may hereafter be made, of, or with the Indians, shall be valid, unless made under the authority and with the consent of the Legislature. Seo. 17. Such parts of the common law, and of the acts of the Legislature of the colony of New-York, as together did form the law of the said colony, on the nineteenth day of April, one thousand seven hundred and seventy- five, and the resolutions of the Congress of the said colony, and of the Coil- vention of the State of New- York, in force on the twentieth day of ApriJ, CONSTITUTION OF KEW-TORE. V one thousand seven hundred and seventy-seven, which have not since expired, or been repealed or altered ; and such acts of the Legislature of this State as are now in force, shall be and continue the law of this State, subject to such alterations as the Legislature shall make concerning the same. But all such parts of the common law, and such of the said acts, or parts thereof, as are repugnant to this Constitution, are hereby abrogated ; and the Legis- lature, at its first session after the adoption of this Constitution, shall appoint three Commissioners, whose duty it shall be to reduce into a written and systematic code, the whole body of the law of this State, or so much and such parts thereof as to the said Commissioners shall seem practicable and expedient. And the said Commissioners shall specify such alterations and amendments therein as they shall deem proper, and they shall at all times make reports of their proceedings to the Legislature, when called upon to do so; and the Legislature shall pass laws regulating the tenure of office, the fining of vacancies therein, and the compensation of the said Commissioners ; and shall also provide for the publication of the said code, prior to its being presented to the Legislature for adoption. Sec. 18. All grants of land within tliis State, made by the King of Great Britain, or persons acting under his authority, after the fourteenth day of October, one thousand seven hundred and seventy-five, shall be null and void ; but nothing contained in this Constitution shall affect any grants of land within this State, made by the authority of the said King or his prede- cessors, or shall annul any charters to bodies politic and corporate, by him or them made, before that day; or shall effect any such grants or charters since made by this State, or by persons acting under its authority, or shall impair the obligation of any debts contracted by this State, or individuals, or bodies corporate, or any other rights of property, or any suits, actions, rights of action, or other proceedings in courts of justice. ARTICLE II. THE ELECTIVE FRANCHISE. Sec. 1. Every male citizen of the age of twenty-one years, who shall havs been a citizen for ten days, and an inhabitant of this State one year next preceding any election, and for the last four months a resident of the county where he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people ; but such citizen shall have been for thirty days next preceding the election a res- ident of the district from which the officer is to be chosen for whom he offers his vote. But no man of color, unless he shall have been for three years a citizen of this State, and for one year next preceding any election shall have been seized and possessed of a freehold estate of the value of two hun- dred and fifty dollars, over and above all debts and incumbrances charged thereon, and shall have been actually rated and paid a tax thereon, shall ba entitled to vote at such election. And no person of color shall be subject to direct taxation unless he shall be seized and possessed of such real estate as aforesaid. Sec. 3. Laws may be passed excluding from the right of suffrage all per- eons who have been or may be convicted of bribery, larceny, or of any infa- mous crime; and for depriving every person who shall make, or become 40 « CONSTITUTION 01" NEW-YORK. directly or indirectly interested in any bet or wager depending upon the result of any election, from the right to vote at such election. Sec. 3. For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while em- ployed in the service of the United States ; nor while engaged in the naviga- tion of the waters of this State, or of the United States, or of the high seas; nor while a student of any seminary of learning, nor while kept at any ahns- house, or other asylum, at public expense ; nor while confined in any public prison. Sec. 4. Laws shall be made for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage hereby established. Sec. 5. All elections by the citizens shall be by ballot, except for such town-officers as may by law be directed to be otherwise chosen. ARTICLE III. LEGISLATIVE. Sec. 1. The Legislative powerof this State shall be vested in a Senate and Assembly. Sec. 3. The Senate shall consist of thirty-two members, and the Senators shall be chosen for two years. The Assembly shall consist of one hundred and twenty-eight members, who shall be annually elected. Sec. 3. The State shall be divided into thirty-two districts, to be called Senate districts, each of which shall choose one Senator. The districts shall be numbered from .one to thirty-two inclusive. District number one shall consist of the counties of Suffolk, Richmond, and Queens, District number two shall consist of the county of Kings. Districts nuaiber three, number four, number five, and number six, shall consist of the city and county of New-York. And the Board of Supervisors of said city and county shall, on or before the first day of May, one thousand eight hundred and forty-seven, divide the said city and county into the num- ber of Senate districts to which it is entitled, as near as may be of an equal number of inhabitants, excluding aliens and persons of color not taxed, and consisting of convenient and contiguous territory; and no Assembly district shall be divided in the formation of a Senate district. The Board of Super- visors, when they shall have completed such division, shall cause certificates thereof, stating the number and boundaries of each district and the popula- tion thereof, to be filed in the office of the Secretary of the State, and of tha Clerk of said city and county. District number seven shall consist of the counties of Westchester, Putnam, and Rockland. District number eight shall consist of the counties of Dutchess and Co- lumbia. District number nine shall consist. of the counties of Orange and Sullivan. District number ten shall consist of the counties of Ulster and Greene. District num,ber eleven shall consist of the counties of Albany and Schen- ectady. District number twelve shall consist of the county of Rensselaer. District number thirteen shall consist of the counties of Washington and Saratoga. CONSTITUTION OP NEW-FORK. VU District number fourteen shall consist of the counties of Warren, Essex, and Clinton. District number fifteen shall consist of the counties of St. Lawrence and Frankjin. District number sixteen shall consist of the counties of Herkimer, Hamilton, Fulton, and Montgomery. District number seventeen shall consist of the counties of Schoharie and Delaware. District number eighteen shall consist of the counties of Otsego and Chenango. District number nineteen shall consist of the county of Oneida. District number twenty shall consist of the counties of Madison and Oswego. District number twenty-one shall consist of the counties of Jefferson and Lewis. District number twenty-two shall consist of the county of Onondaga. District number twenty-three shall consist of the counties of Cortland, Broome, and Tioga. District number twenty-four shall consist of the counties of Cayuga and Wayne. District number twenty-five shall consist of the counties of Tompkins, Sen- eca and Yates. District number twenty-sii shall consist of the counties of Steuben and Chemung. District number twenty-seven shall consist of the county of Monroe. District number twenty-eight shall consist of the counties of Orleans, Gene- see, and Niagara. District number twenty-nine shall consist of the counties of OntEirio and Livingston. District number thirty shall consist of the counties of Allegany and Wyoming. District number thirty-one shall consist of the county of Erie. District number thirty-two shall consist of the counties of Chautauque and Cattaraugus. Sec. 4. An enumeration of the inhabitants of the State shall be taken under the direction of the Legislature, in the year one thousand eight hun- dred and fifty-five, and at the end of every ten years thereafter ; and the said districts shall be so altered by the Legislature, at the first session after the return of every enumeration, that each Senate district shall contain, as nearly as may be, an equal number of inhabitants, excluding aliens and persons of color not taxed ; and shall remain unaltered until the return of another enu- meration, and shall at all times consist of contiguous territory ; and no county shall be divided in the formation of a Senate district, except such county shall be equitably entitled to two or more Senators. Sec. 5. The members of Assembly shall be apportioned among the several counties of this State, by the Legislature, as nearly as may be, according to the number of their respective inhabitants, excluding aUens and persons of color not taxed, and shall be chosen by single districts. The several boards of Supervisors in such counties of this State as are now entitled to more than one member of Assembly, shall assemble on tha first Tuesday of January next, and divide their respective counties into Ab- TIU CONSTITUTION. OF NEW-TORK. aembly districts equal to the number of members of Assembly fo which such counties are now severally entitled by law, and shall cause to be filed in the offices of the Secretary of State and the Clerks of their respective counties, a. description of such Assembly districts, specifying the number of each dis- trict and the population thereof, according to the last preceding State enumeration, as near as can be ascertained. Each Assembly district shall contain, as nearly as may be, an equal number of inhabitants, excluding aliens and persons of color not taxed, and shall consist of convenient and contiguous territory ; but no town shall be divided in the formation of Assem- bly districts. The Legislature, at its first session after the return of every enumeration, •hall reapportion the members of Assembly among the several counties of this State, in manner aforesaid ; and the boards of Supervisors in such counties as may be entitled, under such reapportionment, to more than one member, •hall assemble at such time as the Legislature making such reapportionment •hall prescribe, and divide such counties into Assembly districts, in the man- ner herein directed ; and the apportionment and districts so to be made shall remain unaltered until another enumeration shall be taken under the pro- visions of the preceding section. Every county heretofore established and separately organized, except the county of Hamilton, shall always be entitled to one member of the Assem- bly; and no new county shall be hereafter erected, unless its population shall entitle it to a member. The county of Hamilton shall elect with the county of Fulton, until the population of the county of Hamilton shall, according to the ratio, be entitled to a member. Sec. 6. The members of the Legislature shall receive for their services a mm not exceeding three dollars a day, from the commencement of the ses- •ion ; but such pay shall not exceed in the aggregate three hundred dollars for per diem allowance, except in proceedings for impeachment. The limita- tion as to the aggregate compensation shall not take effect until one thousand eight hundred and forty-eight. When convened in extra session by the Gfov- emor, they shall receive three dollars per day. They shall also receive the •um of one dollar for every ten miles they shall travel, in going to and re- turning from their place of meeting on the most usual route. The Speaker of the Assembly shall, in virtue of his office, receive an additional compen- sation equal to one-third of his per diem allowance as a member. Sec. 7. No member of the Legislature shall receive any civil appointment within tliis State, or to the Senate of the United States, from the Governor, the Governor and Senate, or from the Legislature, during the term for which he shall have been elected j and all such appointments, and all votes given for any such member, for any such office or appointment, shall be void. Sec. 8. No person being a member of Congress, or holding any judicial or military office under the United States, shall hold a seat in the Legisla- ture. And if any person shall, after his election as a member of the Legis- lature, be elected to Congress, or appointed to any office, civil or military, under the government of the United States, his acceptance thereof shall va- cate his seat. Sec. 9. The elections of Senators and Members of Assembly, pursuant to the provisions of this Constitution, shall be held on the Tuesday succeeding the first Monday of November, unless otherwise directed by the Legislature. coNSTiTtrrioN of HBW-ronK. iz Sec. 10. A majority of each house shall constitute a quorum to do busi- ness. Each house shall determine the rules of its own proceedings, and b* the judge of the elections, returns, and qualifications of its own members, shall choose its own officers, and the Senate shall choose a temporary presi- dent, when the Lieutenant Governor shall not attend as President, or shall act as Governor. Sec. 11. Each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy. The doors of each house shall be kept open, except when the pubUc welfare shall requirs secrecy. Neither house shall, without the consent of the other, adjourn for more than two days. Sec. 13. For any speech or debate in either house of the Legislature, th« members shall not be questioned in any other place. Sec. 13. Any bill may origuiate in either house of the Legislature, and all bills passed by one house may be amended by the other. Sec. 14. The enacting clause of all bills shall be, "The people of the State of New- York, represented in Senate and Assembly, do enact as follows," and no law shall be enacted except by bill. Sec. 15. No bill shall be passed unless by the assent of a majority of all the members elected to each branch of the Legislature, and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal. Sec. 16. No private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title Sec. 17. The Legislature may confer upon the boards of Supervisors, of the several counties of the State, such further powers of local legislation and administration as they shall from lime to time prescribe. ARTICLE IV. execdtite. Sec. 1. The executive power shall be vested in a Governor, who shall hold his office for two years ; a Lieutenant Governor shall be chosen at the ted to act for himself, in cases where counsel has hitherto been considered necessary^ it will be well for each of us to be supplied with the work of Air. Jenkins. The forms " eeem to be adapted to cases which are occurring every day— and in which, particu- larly among a farming community, eveiy man may bo called to act. It would be well for every business man to have a copy of this work. From the " Commercial Advertiser." This is one of the most perfect and useful books of the kind, we ever saw. It has already run through three editions, and the fourth has now been published. T^iia rapid sale is good evidence that it is adapted to the objects designed — " to provide % practical form book for business men"— one that should be full and complete, and yet simple and clear in its arrangement, and easily understood. To town and county officers of eveiy grade — to business men of all classes, this book Is believed to be a useful and reliable guide and direction, not only in public affairs, but in private business. This book contains 650 pages, and embraces forms in relation to every conceivable subject which enters into the business of our people, and for which forms are re- quired. . They are made simple and concise, and conform to the laws of (he Statp^ The fourth edition has some new chapters on the Exemption of the Homestead, Plank Roads, Duties of the Board of Supervisors, &c. The Constitution of the State is also inserted, which is a good idea, as it will place that instrument before the people in a permanent form, We find this book in lawyer's offices, where it is highly ap- proved and much in use. No man whose bilsiness requires the use of such forms should be without it, and to county and town ofliccrs, it must be invaluable. The author has evidently bestowed much time and labor in preparing it, and the call for a fourth edition so soon, shows that it has found favor with those ibr whom it was do* ngned. BOOKS RECENTLY FITBLISHXD BT DERBT i MIILXR. The American Fruit Culturist : B7 J. J. Tbomm; containing directions for li^e propagation and cultwre of Frnit Trees, in the Nursery, Orchard, and Garden; with deseriptions of the principal American and Foreign varieties cultivated in the United States: with 300 accurate illustra- tions. 1 volume, of over 400 pages, 12ino. $1,00. A cheaper, but equally valuable book with Dowuing's waa wanted by the gte&t aiass. Just such a work has Mr. Thomas giTen us. We consider it an invaluable addition to our agricultural libraries, — Wool Grower. We predict for it a very rapid sale ; it should be in the hands of every fruit growei and especially every nurseryman. It is a very cheap book for its price. — Ohio OidtivatoT. It ia a most valuable work to all engaged in the culture of fruit trees.— C7fic» Heratil. It is a book of great value. — Genesee Farmer. Among all the writers on fruits, we do not know of one who is Mr. Thomas* superior, if his equal, in condensing important matter. He gets right at the pith of the thing —he gives you that which you wish to know at once ; stripped of all use- less talk and twattle. No man has a keener eye for the best ways of doing tilings. Hence we always look into his writings with the assurance that we shall find some> thing new, or some improvements on the old ; and we are seldom disappointed. This book is no exception. His full. There is no vacant space in it. It is like a fresh egg — all good, and packed to the shell full.— Prairie Farmer. In the volume before us we have the result of the author's experience and obser- vations, continued with tmtiring perseverance for many years, in language at once concise and perspicuous. — Albany Cultivator. We can say with confidence to our readers, that if you need a book to instruct yon m the modes of growing trees, &c., from the first start, the systems of pruning, etc., etc., you will find the American Fruit Culturist an extremely valuable work. The million who purchase it, will find matter adapted to their wants, superior to any work as yet published. — Cleveland Herald. For sale in New York by M. H. NEWMAN & CO. and C. M. SAXTON. Booton, B. B. MUSSEY & CO. Phiiadei-K'.-i, TH.'~/MAS, COWPERTHWAITE