Jii-::x3m^.. n^ ^ iiH M i "k^^^S i h I^B j c^^^^^ s «- r p rr J S15 IT.. If' ! wu _^_ _ I ww^ I & ~ lk.'r^ k fs« .-=!*«• ffr«f QJnrnpU ICam ^rlyool llibrata Cornell University Library KF 170.J52 1872 3 1924 022 834 844 The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022834844 THE NEW CLERK'S ASSISTANT, OR BOOK OF PRACTICAL FORMS; CONTAIMING NUMEROUS PRECEDENTS AND FORMS FOR ORDINARY BUSINESS TRANSACTIONS, WITH REFERENCES TO THE VARIOUS STATUTES AND LATEST JUDICIAL DECISIONS; DESIGNED FOB THE USE OF County and Town Officers of every Grade, BANKERS, MERCHANTS, AUCTIONEERS, MECHANICS, FARMERS AND PROFESSIONAL MEN, AND ADAiItED TO THE NEW ENGUND, NOETHEEN AND WESTERN STATES AND CALIPOENIA. BY JOHN S. JEN KINS. Gouneelor at ijaw. NEW EDITION, WITH APPENDIX AND NOTES. ALBANY, N. Y.: W. 0. LITTLE & CO., LAW BOOKSELLEKS, 625 BROADWAY. 1872. Kntered ■etmrdlng to Act of Gongre^s, In the jear onu thousand eight hnndnid and fifly-flvet RiT IIIIXEE, OETON & MULLIGAN, Id the Clerk's Office of the District Court of the Northern Dlatrict of New York rilEFACE 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 fuU and complete, and yet simple and clear in its arrant, ment, and easily understood. 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 thie public approve of the plan of the work and of its execution. This work is adapted to the Eastern, Northern and Western States. It is sold very extensively in all the New England States, Pennsylvania, Ohio, Indiana, Illinois, Michigan, Wisconsin, and Cali- fornia. The laws of those States being similar in their general char- acter, the Forms included herein are consequently suited to the wants of their officers and business men. To County and Town Officers of every grade, — ^to business men of aU classes, — ^to the farmer, the mechanic, and the merchant, — this book is believed to be a useful and reliable guide and director, a 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- r 40. 5§ 1, 4 : Id. 46, 47, 1 • 2 R. S., (3d ed.) 40, § 4. 55 4C, 42, 44 ; 8 Wendell, 620 , 15 Id., 588, ' Laws of 1840, Chap. 238. 694 ; 6 Hill, 469. , 10 NEW CLERK'S ASSISTANT. l.In the State: before the Justices of the Supreme Court, County Judges, Mayors and Recorders of cities, Commissioners of Deeds in cities, and Justices of the Peace in the several towns. 2. Out of the State, and in the United States: before the Chief Justice and Associate Justices of the Supreme Court of the United States, District Judges of the United States, the Judges or Justices of the Supreme, Superior, or Circuit Court, of any State or Territory within the United States, the Chief Judge, or any Associate Judge of the Circuit Court of the United States in the District of Columbia, Mayors of cities in the United States, and Commissioners of Deeds ap- pointed by the Governor of this State, in other States and Territories, and the District of Columbia. 3. Out of the United States: before a Judge of the highest Court, in Upper or Lower Canada; before any Consul of the United States, Charge d' Affaires, Minister Plenipotentiary, or Minister Extraordinary, resident in any foreign country; before the Mayor of London, the Mayors or Chief Magistrates of Dublin, Edinburgh and Liverpool, and any person specially authorized by a commission under the seal of the Supreme Court of this State.i 6. The proof or acknowledgment of any conveyance or instrument, ' that may be recorded or read in evidence in this State, when made by any person residing out of the State, and within any other State or Territory of the United States, may be made before any oflScer of such State or Territory, authorized by the laws thereof to take the proof and acknowledgment of deeds. It is necessary, however, that riuch officer should know, or have satisfactory evidence, that the person making such acknowledgment is the individual described in, and who executed the conveyance or instrument; also, that lo the oertificate of the officer, there should be attached a certificate undei the name and official seal of the clerk or register of the county in which he resides, specifying, that at the time of taking the proof or acknowledgment, he was duly authorized to take the same, and verifying his hand writing.'' 7. The official title of an acknowled^ng officer should always be attached to his certificate, in full. If be be a Judge, he should state of what court; if a Commissioner, or Justice of the Peace; the city or county in and for which he is such Commissioner, or Justice, should be mentioned; and if a Minister Plenipotentiary, or Charge d' Affaires, he should s^iy from what government he is appointed, and to what government he is accredited. 8. Where a deed is proved or acknowledged before a Commissioner of Deeds, Justice of the Peace, or County Judge, not of the degree of CoimseUor at law, the certificate of the County Clerk to the 1 2 R. S., (3d ed.) 40, §4 : Laws of 1840, 1 ' ' Laws of 1848, Chap, 198. Clinp. 238; Id., 290: Laws of 1846, Chap. ' 109 ; Laws of 1847, Chap. 280. ACKNOWLEDGMENTS, ETC. 11 ofiScial character of the oflScer taking the proof or acknowledgment, and the genuineness of his signature, should be procurea, if the instrument is to be recorded in another county. 9. By the laws of this State, every written instrument, except promissory notes, bills of exchange, and the last wiUs of deceased persons, may be proved or acknowledged, and read in evidence on the trial of any action, with the same effect, and in the same man- ner, as conveyances of real estate.' 10. Where the execution of a conveyance is acknowledged by the party in person, the oflScer taking the same must certify to the identity." 11. Where the execution is proved by a subscribing witness, he must state his own place of residence, and that he knows the person described in, and who executed the conveyance.' 12. A substantial compliance with the requirements of the statute relative to the proof and acknowledgment of conveyances, and othe instruijaents, is all that is required : the identical language of the law need not be used.* 13. Whenever erasures or interlineations occur in any convey- ance, they should be noted previous to the execution, or mentioned in the certificate of the ofiBcer taking the proof or acknowledgment' 14. Upon the application of any grantee in any conveyance, or of any person claiming under or through him, verified by oath, repre- senting that a subscribing witness, residing in the county where the application is made, refuses to appear and testify, any officer author- ized to take proofs or acknowledgments, except Commissioners of Deeds and Justices of the Peace, may issue a subpoena, requiring such witness to appear and testify before him.' 15. Where the subscribing witnesses to a conveyance are dead, proof of its execution may be made before any officer authorized to take proofs or acknowledgments of deeds, other than Commissioners . of Deeds, Justices of the Peace, and County Judges, not of the de- gree of counsel in the Supreme Court. The evidence establishing the death of the witnesses, and of the handwriting of such witnesses, or of either of them, and of the grantor, with the names and places of residence of the witnesses examined before the officer, must be set forth in his certificate. The conveyance having been thus proved and certified, may be recorded in the proper office, provided the original deed is deposited in the same office, to remain there for tlie inspection of aU persons desiring to examine it. Such record and deposit will be constructive evidence of the execution of the said conveyance, to all subsequent purchasers, although such conveyance, nor the record thereof, nor the transcript of the record, can be read in evidence.' 1 Laws of 1833, Chap. 271. I « 2 Barbour's Ch. Rep., 232. a 2 R. S. (3d ed.) 42, 1 12 ; 11 Johnson, 434 ; '8 Cowen, 71 : 7 Wenie\l, 364. 2 Cowen, 552; 4 Wendell, 561: 13 Id., 341. | « 2 R. S. (3d ed.)43, §§ 16, 17. » 2 R. S., Od ed ) 42, § 15 ; 7 Wendell. 364 j | ' 2 R. S., (3d ed.) 46, 85 30-33 I HiU, Ui. ' 12 NEW CLERK'S ASSISTANT. FORMS. § 1. Certificate of acknowledgment hy 'party Jmown to the officer. County, ss:' On this first day of May, in the year of our Lord one thousand eight hundred and forty-five, before me personally came A. B., to me known to be the individual described in, and who executed the within [or, above, or, annexed] conveyance [or, bond; or, letter of attorney; or, instrument in writing,] and acknowledged that he executed the same, for the purposes therein mentioned. G. H., County Judge of said county. § 2. Certificate where identity of Party is proven to the officer. County, ss : On this first day of May, .&c., before me personally came A. B., proven to me satisfactorily to be the same person described in, and who executed the within conveyance, by the oath of C. D., subscri- bing witness thereto,' who being by me duly sworn, did depose and say, that he resided in the city of Auburn, in the county of Cay- uga ; that he was acquainted with the said A. B., and that he knew hira to be the same person described in and who executed the within conveyance : and, thereupon, the said A. B. acknowledged that he executed the same. E. F., Justice of the Peace in and for said county. § 3. £y Husband and Wife — Icnown to the Officer. County, ss : 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 » If a conveyance or instrument is proved or acknowledged in this State, but to be used or recorded m another State, tlie name of the State should be inserted in the heading of the certificate as well as that of the county. 9 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 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 A. B., and Mary his wife ; that he knew them to be the same persons described in, and who executed the witliin conveyance : and, there- upon, they severally acknowledged before me that they executed the same ; and the said Mary, (fee, [as in § 3, to the endA E. R, Justice, l gs • County of , ) ' Salem, May 1, 1847. Then pMsonally 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. R, Justice, &c. § 29. Acknowledgment 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 fidly 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 deliver, the same, without any coercion or compulsion of her said husband whatever.] Witaess my hand and seal E. F., Justice, &c. [i. s.]» § 30. Acknowledgment by Husband and Wife in Michigan, State of Michigan, ) . Wayne County, J Be it remembered, that on this first day of May, &o., before me, a Justice of the Peace in and for the county aforesaid, appeared A. B., and Mary his wife, and severally acknowledged that ihey 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., Justice, &c 1 The acknowledgment may be before a Judge of a Supreme or Circuit Court, Notary Public, Mayor of a city, Commiseioner appomted in another State, or a foreign Min- ister or Consul of the United States. s A simple scroll, made with a pen, is suf. ficient to constitute a seal in Pennsvlvania. AC|KN0WLED6MENTS. ETC. 21 § 81. The same, in Ohio. State of Ohio, ) Hamilton Coimty, f ^®* Be it remembered, &c., [as in 30, to the *.] E. F., Justice, &o. § 32. The same, in Illinois. State of Illinois, ) Cook County, P®' Be 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., tod Mary his wife, to me person- ally miown to be the individuals described in, and who executed the within deed, and severally acknowledgjed that they had 'executed the same :* And the said Mary, after I had made her acquainted with 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 volim- 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 Iniiana. State of Indiana, ) Jackson County, ) ' Be it remembered, &c., \as in % 32 to the*, and then addi] 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, 2B.B.(8ded.)SHS12l). ACKNOWLEDGMENTS, ETC. 25 § 43. Satisjhction of Judgment in a Cawrt of Mecord} Supreme Court, [or. County Court,] A. B. J Of the day of January, one thousand eight against V hundred and forty-seven. C. D. ) Satasfaotion 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. 8., 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 plaintiff 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 Subscribing 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 application to you to issue a subpoena, requiring E. F., 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 didy sworn, says that the facts stated and set forth in the above application are true. Sworn to before me, ) this first day of July, 1847. j G. H., County Judge. 1 Satisfaction, of Judgments in Courta of I within two years after filing the record. Record, may be acknowledged by the Attorney, | 2 R. S., (3d ed.) 4S9 S 35. 26 NEW CLERK'S ASSISTANT. § 45. Form of the Svhpeend} 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 obtain 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 witMn subpoena on E. R, therein named, personally, by then and there showing him the same, and delivering to him a true copy there- of, and by paying [or, tendering] to him the sum of for his fees for travelling to the place specified in the said subpoena, and for his attendance in pursuance thereof. A. R Sworn to before me, ) this day of , &c. f G. H. County Judge. § 47. Warrant. County, ss: To the SheriflF of said county, greeting; *■ In the name of the People of the State of New York, you ar& hereby commanded forthwith to apprehend E. R, 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. R 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 Subposna is to be served by showing the original, under the hand of the officer, to the witness, and at the same time delivering .0 him a copy thereof, and paying or tender- mg 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 attendance, travelling fees, at the rate of four cents per mile going and returning. 9 R. S. (3d ed.; 497, §Mj Laws of 1840, Chap. 38S. If the witness refu- ses to appear afler the service of the Sub- poena, without good cause, the officer issuing the samtfhas power to compel his attendance, by warrant directed to the Sheritfof the coun- ty. 2 R. S. (3d ed.) 493, § 66. And if lis still persists in refusing to testify, or to an- swer a legal question, without reasonable cause, he may be committed to the common jail ol^ the county. Id.. §5" ACKNOWLEDGMENTS, ETC. 27 thereof Given under my hand and seal, the day of July, 1847. G. H. [l. s.] ■ § 48. Commitment for Refusal to Testify. By G. H., County Judge of county, to A. P., Sheriff of the said county, greeting : E. R, 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 subpoena, say: having this day appeared before me, in pursuance of a subpcena 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 account of the refusal of the witness to answer a particular ques- tion, deemed pertinent by the officer, insert here: the following question, &c., specifying U partiadarlyj touching the execution of tiie said conveyance. I do, therefore, in the name of the people of the State of New York, command you forthwith to convey the feaid E. F. to the jail of the said county, and there commit him to close custody in such jail, without bail, and without the liberties of the jaU, 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.] § 49. Oath to be 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 solemnly, sincerely, and truly affirm and declare, that, &c.*, as ahove, omitting the words as aforesaid^ § 50. Oath to a Witness proving the idefitity 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. '^ necessary, vary- as in the foregoing form.^ § 51. Oaih to a Deponent. Y^n do solemnly swear, that the contents of this afBdavit, by you subscribed, are true. So help you God. [ Vary as above when necessary-l ' 1 For the provisions of the Statute in relation to the administration of oatha, T^ide i a. S. (3d cd.-> S04-5. CHAPTER n. « AGREEMENTS AND CONTEACTS. PRACTICAL REMARKS, 1. In the following cases, every agreement is void, unless such agreement, or some note or memorandum thereof ejcpressing 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 misoai ■ riage of another person;' 3. Every agreement, promise, or imdertaking, 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 bo 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, express- ing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to he 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. a 10 Wendell, 426 ; 13 Id., 308; IB Id., 345 : 3 Hill, 128 ; 5 Id., 200 : 2 Bai-bour's Ch. Rep. 221. 3 4 Wendell, 657 ; 9 Id.. 273 : 19 Id., 657 ; 24 Id., 35, 266: 2 Hill, 663; 3 id., 128, 684: 4 Id., 178 ; 6 Id., 145, 160, 483 ; 2 Denio, 46. » 10 Wendell, 461. 2 R. S. (3d ed.) 196, § 3 : 3 Wendell, 112; 13 Id., 64; 17 Id., 333; 20 Id., 431: 23 Id., 270 ; 24 Id., 3^ ; 26 Id., 341 ; 6 Hill, 201 ; 1 Denio, 61 ; 1 Comstock, 261 ; 2 Id., 258. « 2 R. S. (3d ed.) 194 § 8; 2Hill,485i 1 Denio, 561). AGREEMENTS AND CONTRACTS. 29 of a refusal to perform the 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 sesded instrument, and where a set-ofif is founded upon a sealed instrument, the seal thereof is only pre- sumptive evidence of a sufficient consideration." 6. In Pennsylvania, Virginia, Alabama and Georgia, a scroll of ink made with 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, pubUc 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 fiilfil, the otiier party is entitled to an equivalent in dam ages, for the direct gains and profits which he would have realized from performance, though not fo» 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 purport to be sealed with his seal' 11. In all ordinary cases, where the consideration is expressed, there is no difference between 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 circumstances 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 Comatock, 60. > 2 R. S. (3d ed.) 604, f 96 ; 11 Wendell, 107 ; 15 Id., 629 : 21 Id., SSS : 2S Id., 107 ; 6 HiUl 63. > 2Hm,227; 3 Id., 493. « lI>eiuo,3,471. > 1 Denio, 226. • 7 Hill, il J 1 Denio, 317 ; 2 Id., 609. T 4 Hill, 351, and authorities tliere cited. B 1 Barboui's S. C. Rep., 464, 635. • 1 Barbour's S. C. Rep., 471. >o 1 Bvboui's S. C. Rep., 114, 326 30 HEW CLERK'S ASSISTANT- FORMS. § 52. General form of Agreement — Damages fixed. This 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 part covenants and agrees, to and with the party of the first part, to \state the subject matter of the agreement^ And the s^d 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 thS 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 the 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 " " ~ \ C. D. [l. 8.1 presence of G. H. § 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, If it is desired to bind the party not to I the words, " either as principal or agent," engage in the business, eren as aL agent, | should be inserted here 3 34 NEW CLERK'S ASSISTANT § 59. Agreement to Engrave Maps. This agreement, made the day o^ &c., between, A. B., of, &c., 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, hereunto annexed ; and that he will finish and complete the same in a workmanlike manner, and dehver 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 deliveiy of each and every of the said engraved plates, the sum of dollars, in full payment and satisfaction therefor. In witness, &c., [as in § 52.] § 60. Agreement to Freight Sloop, or Canal Boat. This agreement, made the day of, &c., 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 par^ 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 instant, 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 deUvery of each and every cargo in a safe and sound condition, as hereinafter mentioned, at and after the following rates of compensation, viz : FOR UP FREIGHT. Salt, --- -.... . cents per busheL Merchandise, do hundred. Household Furniture, - - . . . do do Coal, doUais per ton. &e.. &c. FOR DOWN FREIGHT. ^ow, cents per barrel Pork, do do Hay, .--- dollars per ton. Wheat and Com, cents per bushel Butter, do firkin. Staves and Heading, ^ do thousand &c. &c. AGREEMENTS AND CONTRACTS. 35 And the said party of the second part, in consideration of the premises, covenants and agrees to and with the said party of the first part, that he will safely carry all such lading and freight as he may or shall receive from the party of the first part as aforesaid, and deliver the same in as good and sound condition as when so received, according to the respective bills of lading to be furnished to him by the party of the first part, or their agents ; that he will pay all costs and charges of transportation, including towage and wharfage; [insert toll, if necessary;^ that he will regularly ply between and , and the intermediate ports, with his sloop [or, canal boat] as aforesaid, during the entire season of navi- gation above mentioned ; and that he wUl not occupy more than days, unless hindered or delayed by some unavoidable accident, in making either an upward or downward trip. It is also further understood and agreed between the parties, that all lading and freight shall be delivered to the party of the second part, at his sloop, [or, canal boat,] and that he shall discharge the same, on the dock, at his own cost and charge ; that the pai-ty of the first part shall not, at any time, require the said party of the second part to carry, or convey, on his sloop, [or, canal boat,] any timber, or lumber, (staves and heading excepted,) any carts, cars, or vehi- cles, of any description whatever; or any horses, mules, cattle, swine, or animals of any name or nature ; and that all the aforesaid condi- tions and stipulations, shall be binding upon the heirs, executors, administrators and survivors, of the respective parties. In witness whereof, the parties have hereunto affixed their names, the day and year above written. In presence of ) L. S. & Co. f C. D. § 61. Agreement to Sell Shares of Stock in an Incorporated Company. This agreement, made the ■ day of, &c., between A. B., of, &c., and C. D., of, &c., vritnesseth : That the said A. B. agrees to sell and convey to the said C. D., on or before the day of , next, one hundred shares of the capital stock of the company, now owned and held by the said A. B., and standing in his name on the books of the said company, and to make and execute unto the said' C. D. all assignments, transfers and con- veyances, necessary to assure the same to him, his. heirs and assigns. In consideration whereof the said C. D. agrees to pay unto the said A. B., for each and every share of such stock, the average cash market price of the same, for and during twenty days preceding the day of , aforesaid, to be determined by the sales made at the board of brokers in the city of New York. In witness, &c., [as in § 52.] Sfi NEW CLERK'S ASSISTANT. § 62. Agreement of Barter. This agreement, made the day o^ &c., between A. B., of, &c., and C. D., ot &c., witnesseth: That the said A. B. agrees to sell and deliver to the said C. D., at his store in , on the day of instant, one himdred barrels of fine salt, in good substantial barrels, suitable for packing beef and pork, and for the use of the Mtohen and dairy. In consideration whereof, the said C. Di, agrees to sell and deliver to the said A. B., at the store-house of G. H., in , on the day of , aforesaid, one thousand pounds of good merchantable cheese, and four hundred pounds of sweet table but- ter ; both to be well packed, in tierces or firkins, and to be made in dairies where at least fifteen cows are kept In witness, &c., \as in § 52.] § 63. Agreement for Towing lAne of Canal Boats. This agreement, made the day o^ &c., between A. B., C. D., E. F., and G. H., composing the Towing and Navigation Company, of the first part, and L. M., N. S., and T. 0., owners and proprietors of the Line of canal boats, of the second part, witnesseth : That the said party of the first part, for and in conside- ration of the covenants hereinafter contained, covenant and agree, to and with the said party of the second part, that they will furnish and provide fit and suitable teams, with safe and skUful drivers, and tow the boats belonging to the party of the second part, regularly plying between and , on the Erie Canal, and not exceeding in number, for and during the entire season of navigation, to commence on the day of , 18 . And in consideration of the premises, the said party of the second part covenant and agree, to and with the said party of the first part, to pay, or cause to be paid, to the said party of the first part for each and every running trip so made by their boats, as aforesaid, the sum of dollars. It is farther understood and agreed between the aforesaid parties, that two boats of the party of the second part shall leave on the instant, and that three shall leave on the instant, provided the canal shall be navigable at that time, and if not so navigable, then as soon thereafter as it shall become so : it is also agreed between the ' said parties, that the time or times of departure from or , during the remainder of the season, shall depend upon the convenience of the party of the second part; with the proviso, however, that not more than boats shall leave either end of the route, or more than boats pass any station on the same, during any period of twenty-four hours ; that when the said boats of the party of the second part are laden to the burden of tons, or upwards, they shall be towed not les.-! than miles per hour, running time; when AGREEMENTS AND CONTRACTS. 87 ligH or cartying not more than tons frdght, they shall be towed not less than miles per hour, as aforesaid: and it is further agi-eed that the party of the second part shall furnish and provide the drivers employed by the party of the first part, when engaged in towing their boate, with suitable meals on boai^ at regu- lar hours, relievmg them in the charge of their teams at such times by one of the hands engaged on such boats ; that, whenever any boat of the party of the second part shall be detained, on account of the negligence or carelessness of the drivers, servants, or agents of the party of the first part, a deduction shall be made from the compensation of the party of the first part, as aforesaid, a* and after the rate of dollars per hour, during the time of each deten- tion, except, that after the first day of October next, such deduction shall be dollars per hour; that the party of the second part shall pay to the party of the first part, or to their regularly authorized agent or agents, the sum of dollars, part and parcel of the compensation to be paid as aforesaid, on the day of each and every month during the season of navigation, sub- ject, however, to all necessary deductions then liable to be made on account of detention ; and that, vrithin days after the final close of navigation, the aforesaid parties, by themselves, or theii agents, shall meet at the ofi&ce of the said party of the second part, in the city of , and examine, close and settle their respective accoimts, and pay and fully discharge all balances which may be foimd due and owing upon such examination and settlement, by rea- son of the premises. In wikiess, &c., [as in § 52.] § 64. Agreement to Cultivate Land on Shares. This agreement^ made the ' day of, &c., between A. B., ot (fee, and C. D., o^ >. It is also agreed between the said parties, that tlie above etipu- . lations shall apply to, and bind, their respective ^rs. executors, administrators, and asdgns. In witness, &c., [a« tn § 62.] CHAPTER ni. APPRENTICES AND SERVANTS. PRACTICAL REMARKS 1. Every male infant, and every unmarried female under the age of eighteen years, with the consent of the persons or officers herein- after mentioned, may, of his or her own free will, bind himself or her- self in writing, to serve as clerk, apprentice, or servant, in any profession, trade, or employment ; if a male, until the age of twenty- one years, and if a female, until the age of eighteen years, or for any shorter lime : such binding will be as valid and effectual as if the infant were of full age at the time of making the engagement' 2. Such consent must be given : 1. By the father of the infant. If he be dead, or be not in a legal capa- city to give his consent, or if he shall have abandoned and neglected to provide for his family, and such fact be certified by a Justice of the Peace of the town, and endorsed on the indenture, then, 2. By the mother. If the mother be dead, or be not in a legal capa- city to give such consent, or refuse, then, 3. By the guardian of such infant duly appointed. If such infant have no parent living, or none in a legal capacity to give consent, and there be no guardian, then, 4. By the Overseers of the Poor, or any two Justices'of the Peace of the town, or any County Judge of the county where such infant shall reside.' 3. Such consent must be signified in writing, by the person enti- tled to give the same, by a certificate at the end o^ or endorsed upon, the indentures." 4. The executors of any last will of a father, who shall be directed m such will to bring up his child to some trade, or calling, may bind such chUd to service, in like manner as the father might have done. The County Superintendents of the Poor may, in like manner, bind 1 2 R. S. (3d ed.) 215, § 1; 6 Johnson, 274; I "2 R, S. (3d ed.) 215, 5 2. 8 Id., 328: 14 Id., 374: 19 Id., 113; 5 Cowen, s 2 R. S. (3il ed.) 215, i 3; 10 Johnson, 89; 363. 527. 5 Cowen, 170; 2 Hill, 696. 46 NEW CLERK'S ASSISTANT. out any child, under the ages above specified, who shall be seut to a county poor house, or who may or shall, or whose parents may or shall, become chargeable to any county, to be clerks, apprentices, or servants. The Overseers of the Poor of any town or city, possess the like power in such town or city, with the consent, in writing, of any two Justices of the Peace of the town, or of the Mayor, Ee- corder, and Aldermen, of any city, or of any two of them. No child of an Indian woman, however, can be, bound as an apprentice, under the foregoing provisions, except in the presence and with the consent of a Justice of the Peace, whose certificate of consent must be filed by the Clerk of the»town in which the indenture of appren- ticeship shall be executed.' 5. The age of every infant bound as aforesaid, must be inserted in the indenture, and will be taken to be the true age, without fur- ther proof thereof; and public officers who act in such cases, should inform themselves fuUy of the infant's age. Every sum of money paid, or agreed for, in relation to the binding out of any clerk, or apprentice, must also be inserted in the indenture." 6. Whenever any child is bound out by the County Superintend- ents of any county, or the Overseers of the Poor of any town, the person to whom the chUd may be boimd, must enter into an agree- ment, to be inserted in the indentures, that he will cause such child to be instructed to read and write, (if a male, to be also instruct* ' in the general rules of arithmetic,) and that he wiU give su^.. apifrentice, at the expiration of his or her service, a new bible. The counterpart of any indentures executed by the County Superintend- ents, must be deposited in the office of the Clerk of their county ; the Overseers of the Poor vrill deposit a counterpart of any indent- ures executed by them, in the Clerk's office of their city or town.' 7. Any person coming from any foreign country beyond sea, may bind himself to service, if an infant, until the age of twenty-one years, or for any shorter term. Such contract of service, if made for the purpose of raising the passage money, may be for the term of one year, although such term may extend beyond the time when he wiU be of full age ; but shall in no case be for a longer term. No contract made, as aforesaid, wiH bind the servant, unless it be acknowledged by him before some Mayor, Eecorder, or Alderman of a city, or some Justice of the Peace; nor unless a certificate of such acknowledgment, and that the same was made freely, on a pri- vate examination, be endorsed thereupon. Any such contract may be assigned by the master, by an instrument in writing, endorsed thereon, executed in the presence of two witnesses, if such assign- ment be approved o^ in writing, by any magistrate, as aforesaid, whose certificate of approbation must also be endorsed.' I2R. S.(3clert )215, §§4-7; 13 Johnson, 270. | "2 R. S. (3a ed.)216, §§ 10, 11. '2K, S. (3dea,)218-16§§8.9. | < 2 R. S. (3d ed.) 216, l§ 12-14 •APPRENTICES ANB SERVANTS 47 8. No iiidenture, or contract, for the service of any apprentice, is valid, as against the person whose services may be claimed, unless made in the manner above prescribed.' 9. The master is entitled to all the earnings of the apprentice.' 10. A guardian is liable, although the apprentice has gone off and left his master.' 11. An apprentice is not assignable, although the assignment would be valid as a covenant for the services of the apprentice.' 12. An apprentice cannot recover of an assignee, on an implied promise, where service has been voluntarily rendered." 13. Our laws recognize no general authority in a father to dispose of his children, except for some specific and temporary purpose, such as apprenticeship during the father's life, or guardianship after his deatib.* 14. If any person lawfully bound to service, as above mentioned, willfully absent himself without leave, he must serve double the time of such absence, unless he shall otherwise make satisfaction , but such additional term of service cannot extend beyond three years next after the expiration of the original term.' 15. If any person refuses to serve, any* Justice of the Peace of the county, or the Mayor, Recorder, or any Alderman of the city, where he shall reside, has the power to commit him to jail." 16. If any apprentice be guilty of any misdemeanor or ill be- havior; or if any master be guilty of any cruelty, misusage, of refusal of any necessary provisions or clothing, or of a violation of the terms of the indenture ; complaint may ,be made to any two Justices of the Peace of the county, or to the Mayor, Recorder, and Aldermen of the city, or any two of them, who will summon the parties before them and examine into the grounds of complaint ; and if the same prove to be well founded, they must either commit the apprentice to solitary confinement in the common jail of the county, for a term not exceeSing one month, there to be employed at hard labor; or discharge the offending apprentice from his service, and the master from his obligations ; or, in case of ill usage by the mas- ter, discharge the apprentice from his obligation of service." 17. The above statutory provisions in relation to apprentices vrill- fully absenting themselves, refusing to serve, or being guilty of any misdemeanor or iU behavior ; and masters guilty of HI usage, &c., do not extend to those cases where the master or mistress has received, or is entitled to, any siim of money as a compensation for instruc- tion." 1 2 R. S. (3d ed.)2I8, §26; 8 Johnson, 328. « 6 Johnson, 274. 3 14 Johnson, 374; 6 Cowen, 170. 1 19 Johnson, 113. > 2 Barbour's S. C. Rep., 208. 3 Hill, 399. »BR. S. (3ded.)218, 5 28. S2R. S. (3d ed.) 219, 529. • 2 R. S. (3d ed.) 219, 55 30-32; 13 John son, 270. "2R. S. (3ded.)219, 5 33. 48 NEW CLERK'S ASSISTANT. 18. In cases where money has been paid, or agreed to be paid, and Justice of the Peace of the county, or any Mayor, Recorder, or Alderman of the city, in which the apprentice resides, has the power of inquiring into all (isputes in relation thereto, and of making such order and direction as the equity of the case may require. If the difficulty cannot be reconciled, the master or the apprentice may be recognized, in such sureties as the officer shall approve, for his ap- pearance at the next Court of Sessions, and such Court, on hearing the parties, may either discharge the apprentice from service, or order the sum of money to be paid, or to be refunded ; or, if not paid, discharge the same, and direct the securities ' to be canceled; or punish the apprentice by fine, or imprisonment, or both, as for a misdemeanor.' 19. No person can accept from any journeyman or apprentice, any contract or agreement, nor cause him to be bound by oath or otherwise, that after his term of service shaU have expired, such journeyman or apprentice will not set up his trade, profession, or employment, in any particular place, shop, house or cellar; nor can any person exact from any journeyman or apprentice, after his term of service shall have expired, any money or other thing, for using and exercising his trade, profession or employment, in any place. Every security given contrary to the foregoing provisions wiU be void ; any money paid, may be recovered back by the person paying the same, with interest; and every person accepting such agreement, causing such obligation to be entered into, or exacting money or other thing, as aforesaid, forfeits one hundred dollars to the appren- tice, or jom'neyman, from whom the same shall have been received." 20. Upon the death of any master, to whom any person may have been bound to service, as clerk, apprentice, or otherwise, by the County Superintendents of the Poor, or by the Overseers of the Poor, the executors or administrators of such master may, with the consent of the person bound to service, signified in writing, and acknowledged before a Justice of the Peace, assign the contract of such service to any other person ; which assignment will vest in such assignee all the rights of the original master, and rendef him subject to dl his obligations. If the person so bound to service refuses to give such consent, such assignment may be made under the sanction of an order of the Court of Sessions of the county, after fourteen days' notice of an application to that eflfect, served on the appren- tice, his parent, or guardian, if there be any in the county; and .vhen so made, such assignment will be as vahd and effectual as if the consent had been given in the itianner aforesaid.' 21. The above provisions apply as well to mistresses, female guardians, apprentices and wards, respectively, as to masters, male guardians, apprentices and wards.* 1 2 R. S. (3(1 ed.) 219, 220, 15 34-38: Laws I 3 2 R. S. (3cl ed.) 220, S§ 41, 42. 01 ISir, chap. 280, an. v. * 2 R. S. (3d ed.) 221, S 43. a 2 K. S. C3d ed.) 220, §j 39. 40 I APPRENTICES AND SERVANTS. 49 FORMS. § 76. Apprentice's Indenture. This indenture witnesseth: That C. B., of the town of , in the county of , and State of , now aged fourteen years, by and with the consent of A. B., his father [or, mother, his father being dead, or, being legally incapacitated, or, having abandoned or neglected to provide for his family] endorsed hereupon, hath volunta- • rily, and of his own free wLU and accord, put and bound himself apprentice to E. F., of the town of, &c., to learn the art, trade, and mystery of a hatter; and as an apprentice to serve from this date, for, and during, and until the full end and term of, five years next ensuing, [or, until the said C. B. shall have attained the age of twenty-one years, which wUl be on the day of , m the year 18 ,] during all which time the said apprentice shall serve his master faithfully, honestly, and industriously; his secrets keep, and lawful commands every where readUy obey ; at all times protect and preserve the goods and property of his said master, and not suffer or allow any to be injured or wasted. He shall not buy, sell, or traffic, with his own goods, or the goods of others, nor be absent from his said master's service, day or night, without leave ; but in all things behave himself as a faithful apprentice ought to do, during the said term. And the said master shall clothe and provide for the said apprentice in sickness and in health, and supply him with suitable food and clothing ; and shall use and employ the utmost of his endea- vors to teach, or cause him, the said apprentice, to be taught or instructed, in the art, trade, or mystery of a hatter ; and also cause the said apprentice, within such term, to be instructed to read and write, and in the general rules of arithmetic ; and at the end of the said term, ^ve the said apprentice a new bible, [^necessary, insert here: And the said E. F. acknowledges that he has received, with the said C. B., from A. B., his father, [or, mother,] the sum of dollars, as a compensation for his instruction, as above mentioned; or: And the said E. F. further agrees to pay to the said C. B. the following sums of money, viz : for the first year of his service dollars ; for the second year of his service dollars ; and for every subsequent year, until the expiration of his term of sen'ice, dollars ; which said payments are to be made on the first day of January in each year.] And for the true performance of aU and singular the covenants and agreements aforesaid, the said parties bind themselves, each 'into the other, firmly by these presents. In witness whereof the parties aforesaid have hereunto set their 50 NEW CLERK'S ASSISTANT. hands and seals, the day of , in the year one thousaiid eight hundred and Signed, sealed, and delivered, ) C. B. [l. s.l in presence of >■ E. F. [l. s.1 G.H. » § 77. Cqnsent of Father or Mother. I do hereby consent to, and approve o^ the binding of my son, C. B., as in the above [or, within] indenture mentioned. Dated the. day of , in the year 18 . A.B. § 78. Justice's Certificate, where Mother gives consent. I, G. H., a Justice of the Peace of the town of , in the county of , do certify, that A, B., the father of the infant aamed in the within indenture, is dead, [or, is not in legal capacity to give his consent thereto; or, has abandoned and neglected to pro- vide for his family.] Dated the day of , 18 . G. H., Justice of the Peace. § 79. Consent of Guardian. I, S. T., the guardian, duly appointed, of C. B., in the within indenture named, do certify, that the father and mother of the sad ■ C. B. are dead, [or, that the father of the said C. B. is dead, and that the mother of the said C. B. refuses her consent to the said indenture of apprenticeship ; or, is not in legal capacity to give her consent to the said indenture of apprenticeship;] and that I do hereby consent, as his guardian, that he, the said C. B., may bind himself in and by the said indenture. < Dated the day of , 18 . S. T., Guardian of the said C. B. § 80. Certiflcaie of Consent of the Overseers of the Poor, two Jus- tices of the Peace of the town, or Oov/rUy Jvdge of the covmiy in which the Infant resides. We,' the undersigned. Overseers of the Poor of the town of or, two Justices of the Peace of the town of ; or, I, the underagned. County Judge of coimty,] where the within named C. B. resides, do certify, that the' said C. B. has no parent living, [or, no parent in legal capacity to give consent to the within indenture; or, no father living, and his mother is not in legal capacity to give consent to the within indenture,] and that he has no guardian, and that we, the said Overseers, [or. Justices: APPRENTICES AND SERVANTS. .51 or, I, the said Judge,] do consent that the said C. B. may bind bimse^ in and by the said indenture. G. H. M. P. § 81. Agreement of the Father, where he intends to bind himself to answer in Damages. This indenture, made the day of , in the year one thousand eight himdred and , between A. B., o^ &c., and E. F., of, (fee, witnesseth : That the said A. B., in consideration of the covenant and agreement hereinafter mentioned, doth, by these presents, put and bind his son C. B., to the said E. F., to learn the art, trade, and mystery, of a hatter, and as an apprentice to serve from this date, for, and during, and until the fuU end and term of, five years next ensuing, to the best of his power and sMll, faithfully and honestly, in all lawful business and matters that the said E. F. may direct; and the said A. B. doth hereby covenant and agree with the said E. F., that the said C. B. shall in all things well and truly serve the said E. F., during the said term, according to the conditions of the indenture this day executed by the said C. B. and E. F., with my written consent thereupon endorsed, and now on file in the office of the Clerk of the town of ; and the said E. F. doth covenant and agree with the said A. B., to pay to the said A. B. the sum of dollars, on the first day of , in each and every year during the term aforesaid. In witaess whereol^ the said parties to these presents have here- unto set their hands and seals, the day and year first above written. Sealed and delivered ) A, B. [l. s.] in presence of ■ E. F. [l. s.] G. H. § 82. The Sams, Endorsed upon the Inieniwre. In consideration of the covenants and agreements to be performed by E. F., to and with my son C. B., specified and contained in the within indenture, I do hereby bind myself to the said E. F., for the true and faithful performance and observance, by the said C. B.,.of the matters and things by him to be performed and observed in and by the said indenture ; and I do hereby covenant to and with the said E. F., that the said C. B. shall, in all things, well and truly perform and observe the same. In witness whereof I have hereunto put my hand and seal, the day of, (fee. In presence of ) A. B. [l. s.] Qt.YL \ 52 NEW CLERK'S ASSISTANT. § 83. Servant's Indenture. This indentui'e -witnessetli: That M. B., of the town of, &c., new aged thirteen years, by and with the consent of A. B., of the town aforesaid, her &ther, [or, mother, &c., as in ^ 76,] has voluntarily and of her own accord, put and bound herself to E. F., as a domes- tic servant, to serve from the date . hereof for and until the full end and term of five years next ensuing; [or, until she shall have attained the age of eighteen years, which vrill be on the day of , 18 ;] during all which time the said servant shall serve her master faithfully, honestly and industriously; all lawful com- mands everywhere readily obey; and protect and preserve the goods and property of her said master, and not suffer or allow any to be injured or wasted: she shall not be absent from service without leave ; and in all things, and at all times, shall behave as a faithful servant ought to do. And the said E. F. shall and will furnish and provide the said servant, during the continuance of the said term, with Suitable and sufBcient food and clothing; and cause her, within the said term, to be instructed to read and write ; and, at the expi- ration of the said term, shall give her a new bible, and the sum of doUars. And for the true performance of all and singu- lar the covenants and agreements aforesaid, the said parties bind themselves, each unto the other, firmly by these presents. In witness, &e., [as in 8 76, and consent of father or mother, as in § 77.] § 84. Contract to Bind to Service a Minor, coining from a Foreign Gov/ntry beyond Sea, and Achnowledgmemt.^ This indenture, made the day o^ &c., between C. B., an mfant under the age of twenty-one years, to wit : of the age of nine- teen years, on the day of last, coming from the city of Dublin, in Ireland, a foreign country beyond sea; and E. F., of the city of New York, witnesseth: That the said C. B., in pursu- ance of the statute in such case made, and in consideration of the covenants hereinafter contamed, binds himself to serve the said E. F. from the day of the date hereof tmlil the full end and term of two years ; [or, until the said C. B. shall be twenty-one years of age, fwhich will be on the day of , in the year ;] during which term the said C. B. shall well and feiithfully serve the said E. F., and his assigns, in all such lawful business as he shall be put to by the said E. F., or his assigns, to the utmost of the power and ability of the said C. B. ; and, at all times, behave him- self honestly and obediently to the said E. F., and Ms assigns. 1 The execution of the contract should he acknowledged before a Mayor, Recorder, Uderman, or Justice of the Peace. APPRENTICES AND SEKVANTS. 53 And the said E. F. covenants on his part^ and agrees to and with the said C. B., that he, the said E. F., will find and allow to the said C. B. suitable and sufficient food and clothing, and all other neces- saries, dxiring the said term. In witness whereof the parties have hereto set their hands and seals, the day and year above written. C. B. [l. s.] E. F, [l. b.] State of New York,) County, P*- On the day of , in the year , personally came before me C. B., to me known to be the person who executed the within contract, and, on a private examination before me, acknow- ledged that the said contract was made and executed by him freely, for the pxirposes therein mentioned. » G. H., Justice of the Peace. § 85. Assignment of foregoing Indenture} Know all men by these presents, that I, the within named E. F., for and in consideration of the sum of dollars, have assigned and set over, and by these presents do assign and set over, the within indenture, and the servant [or, apprentice] therein named, unto C. D., of , his executors, administrators, and assigns, for the residue of the term within mentioned ; he and they performing all and singular the covenants therein contained, on my part to be kept and performed, and indemnifying me from the same. In witness, &o., \_asvn% 82.] In presence of ) G. H. \ E. F. [l. S.1 L.M. ) § 86. Appraeal of the Assignment, by a Mayor, Recorder, Aider' mam, or Jiistice of the Peace. I hereby approve of the foregoing assignment of the within inden- ture. "W. V. B., Mayor of the (% of New York. § 87. Certificate of Consent to the Binding of the Child of an Indian Woman. I, G. H., a Justice of the Peace of the town of , in said county, do certify, that R. M., the male child of S. M., an Indian woman, in my presence and with my consenl^ was bound as an 1 Two witnesses are requiied to the assignment. 54 NE-W CLERK'S ASSISTANT. apprentice to E. F., of , by indenture, dated this day, *nd duly executed in the town of , aforesaid; and that I subscribed my name as a witness thereto. Dated the day of ,18 . G. H., Justice of the Peace. § 88. Qomplaini hy Master against Apprentice for Refusing to Serve. To G. H., a Justice of the Peace of the County of : ' I, E. F., of the town of , in said county, hatter, hereby make complaint to you, that C. B., an apprentice lawfully bound to serve me, the said E. F., whose term of service is stiU unexpired, and with whom I have not received, nor am I entitled to receive, any sum of ftioney as a compensation for his instruction, refuses to serve me, as by law and the terms of his indenture of apprenticeship he is required. Dated the day of ,18 . County, ss: E. F., the person named in the foregoing complaint, being duly sworn, deposes and says, that the facts and circumstances stated and set forth in the said complaint are true. Sworn to before me, liis | -n, -p day of ,18 . f ^■■^• G. H., Justice of the Peace. § 89. Warrant on the foregoing Oomplaint. County, ss : To any Constable of said County, greeting: Complaint has been made to me, G. H., one of the Justices of the Peace of said county, upon the oath of E. F., of , in said county, hatter, that C. B., an apprentice lawfully bound to serve the said E. F., whose term of service is stiU unexpired, and with whom the said E. F. hath not received, nor is entitled to receive, any sum of money as a compensation for his instruction, refuses to serve the said E. F., as by law and the terms of his indenture of apprenticeship he is required: Now, therefore, you are hereby commanded forthwith to apprehend the said C. B., and bring him before me, at my ofiBce in , to answer to the said E. F. and be dealt with according to law. Given, under my hand, this day of ,18 . G. H., Justice of the Peaca AJf aENTIOES AND SERVANTS. 55 § 90. Commitment of an Apprentice Refusing to Serve. County, ss : To any Constable of said county, greeting: Complaint on oath was made to me, the undersigned G. fl., a Justice of the Peace of said county, by E. R, of , in said county, hatter, that C. B., an apprentice lawfully bound to serve the said E. F., whose term of service was still unexpired, and with whom the said E. F. had not received, nor was entitied to receive, any sum of money as a compensation for his instruction, refused to serve the said E. F., as by law and the terms of his indenture of apprenticeship he was required : And the said C. B., by virtue of my warrant there- upon issued, has been brought before me to be dealt with according to law ; and whereas, after due proof before me of the facts as above stated and set forth, the said C. B. still persists in such refusal to serve the said E. F. : Now, therefore, you are hereby commanded, in the name of the People of the State of New York, to take and convey the said C. B. to the common jail of said coimty, and deliver him to the keeper thereof^ who is commanded tp receive the said C. B. into the said common jail, there to remain until he shall consent to serve the said E. F. according to law. Given. &c., [as in § 89.] § 91. Complaint to two Justices concerning any Misdemeanor or lU Behavior of Apprentice. To G. H. and S. T., Esquires, Justices of the Peace of the county of : I, E. F., of the town of , in said county, hatter, hereby make complaint to you, that C. B., an apprentice lawfully bound to serve me, the said E. F., whose term of service is still unexpired, and with whom I have not received, nor am I entitled to receive, any sum of money, as a compensation for his instruction, has been guilty of misdemeanors and lU behavior toward me, the said E. F., as fol- lows, viz : \descrile the particulars of the complaint.'] E. F. County, ss: E. F. the person named in the foregoing complaint, being duly sworn, (fee, [a» in § 88.] § 92. Warrant on foregoing Complaint. County, ss: To any Constable of said county, greeting: Complaint has been made to us, the undersigned. Justices of the Peace in and for the said county, upon the oath of E. F., of m said county, hatter, that C. B., an apprentice lawfully bound to 58 NEW CUERK'S ASSISTANT, serve the said E. F., whose term of service is still unexpired, anc with whom the said E. F. hath not received, nor is entitled to receive, any sum of money as a compensation for his instruction, has been gTiilty of misdemeanors and ill-behavior toward him, the said E. F,, as follows, viz : [give the particulars, as in the complaint.'] Now, therefore, you are hereby commanded forthwith to apprehend the said 0. B., and bring him before us, at the oflBce of G. H., in the town of , that we may hear, examine into, and determind the said complaint, and deal with the said C. B. according to law. Given under our hands, this day of , 18 . G. H., Justice of the Peace. S. T., Justice of the Peace. § 93. Commitment of Apprentice on foregoing Complaint. Cotrnty, ss: To any Constable of said county, greeting : Complaint on oath was made to us, the undersigned G. H. and S. T., Justices of the Peace in and for the said county, by E. F., of , in said county, hatter, that C. B., an apprentice lawfully bound to serve the said E. F., whose term of service was still unex- pired, and with whom the said E. F. had not received, nor was enti- tled to receive, any sum of money as a compensation for his instruc- tion, had been guilty of misdemeanors and ill-behavior toward him, the said E. F., as follows, viz : \_as in the complaint;] and the said C. B., by virtue of our warrant thereupon issued, has been brought before us, and upon due examination of the proo& and allegations of the parties, it satisfactorily appears to us, that the said C. B. is guilty of the premises charged against him, as aforesaid :* Now. therefore, you are hereby commanded, in the name of the People of the State of New York, to take and convey the said C. B. to the common jail of said county, and deliver him to the keeper thereof, who is commanded to receive the said C. B. into the said common jail, there to remain in solitary confinement, and to be employed at hard labor, for the term of one month. Given, &c., [as in § 92.] § 94. Discharge of the Apprentice from Service, and the Master from his Obligations. County, ss: Complaint on oath was made to us, &c., [^as in § 93 to the *, and then add:] Now, therefore, we do hereby discharge the said C. B. from the service of the said E. F., and the said E. F. from all and every of his obligations incurred under and by virtue of the indent- ures of apprenticeship of the said C. B. Given, &c., [as in § 92.] APPRENTICES AND SERVANTS. &7 § 95. Complaint hy the Apprentice to two Justices, for the Orimlty or Misvsage of his Master, or his Seftisal to furnish him with Necessary Provisions, or Clothing. To G. H. and S. T., Esquires, two of the Justices of the Peace of the county of : I, 0. B., apprentice to E. F., of the town of , in said county, hatter, hereby make complaint to you, that the said E. F., to whom I am lawfully bound by indentures of apprenticeship, the term of service in which hath not yet expired, and who hath not received, nor is entitled to receive, any sum of money as a compensation for my instnjction, has cruelly beat, bruised, and wounded me, the said C. B. , being his apprentice, as aforesaid ; [or, has misused and ill treated me, the said C. B., being his apprentice, as aforesaid, by refusing to furnish me with necessary provisions and clothing ;] to wit, at , aforesaid, on the day of ,18 C.B. County, ss: C. B., the person named in the foregoing complaint, being duly sworn, &c., \cts in § 88.] § 96. Summons on the foregoing Complaint. County, ss : To any Constable of said county, greeting : Complaint has been made to us, the undersigned. Justices of the Peace, in and for the said county, upon the oath of C. B., apprentice of E. F., of , in said county, hatter, that the said E. F., to whom the said C. B. is lawfully bound by indentures of apprentice- ship, the term of service in which hath not yet expu-ed, and who hath not received, nor is entitled to receive, any sum of money as a compensation for the instruction of the said C. B., has cruelly beat, (fee, \as in § 95, substituting him /or me :] Now, therefore, you are hereby commanded to summon the said. E. F. and C. B. to appear before us, at the office of G. H., in the town of . , on the day of instant, at two o'clock in the afternoon of that day, that we may hear, examine and determine the said com- plaint Given, &c., [as in § 92.] § 97. Discharge of Apprentice on foregoing Complaint. County, ss: Complaint on oath was made to us, the undersigned, G. H. and S. T., Justices of the Peace in and for the said county, by C. B., apprentice to E. F., of , in said county, hatter, that the said E. F., to whom the said C. B. was lawfully bound by indentures of 58 NEW CLERK'S ASSISTANT. apprenticeship, the tenn of service in -which was still unexpired, and who had not received, nor was entitled to receive, any sum of money as a compensation for the instruction of the said C. B., had cruelly beat, &c., [as in § 96 ;] and the said E. F., by virtue of our sum- mons thereupon issued, has been brought before us, and upon due examination of the proofs and allegations of the parties, it satisfacto- rily appears to us, that the said E. F. is guilty of the premises so charged against him, as aforesaid : Now, therefore, we do hereby dis- charge the said C. B. from the service of the said E. F., any thing in his indentures of apprenticeship, as aforesaid, to the contrary, not- withstanding. Given, &c., [as in § 92.] § 98. Complaint by Apprentice against the Master, where Monkey has been paid, or agreed to be paid. To G. H., a Justice of the Peace of the county of : I, C. B., apprentice to E. F., of the town of , in said coimty, hatter, hereby make complaint to you, that the said E. F., to whom I am lawfiilly bound by indentures of apprenticeship, the term of service in wMch haih not yet expired, and who hath received the sum of fi% dollars, [or, who is entitled to receive the sum of fifty dollars, on the day of ,18 ,] as a compensation for my instruction, has cruelly beat, bruised, and wounded me, the said C. B., being his apprentice, as aforesaid, [or, has misused and ill treated me, &c., as in § 96.] County, ss : C. B., the person named hi the foregoing complaint, being duly sworn, &c., [as in § 88.] § 99. Summons on foregoing Complaint. County, ss: To any Constable of said county, greeting : Complaint has been made to me, one of the Justices of the Peace in and for the said county, upon the oath of C. B., apprentice to E. F., of , in said county, hatter, that the said E. F., to whom the said C. B. is lawfully bound by indentures of apprenticeship, the term of service in which hath not yet expired, and who hath received the sum of fifty dollars, [or, as in § 98,] as a compensation for the instruction of the said C. B., has cruelly beal, bruised and wounded him, the said C. B., being his apprentice, as aforesaid, [or, has misused and iU treated him, &c., as in § 95.] 'Now,, therefore, you are hereby commanded to summon the said E. F, and C. B. to appear before me, at my office, in the town of , in said countr. on the day of instant, at two o'clock in the APPRENTICES AND SERVANTS. 5P afternoon of that day, that I may hear, examine into, and detennine ^e said complaint Given, &c., [as %n § 89.]' § 100. Recognizance of Master and Surety, on foregoing Complaint. State of New York,) ^. County, J ■ We, E. F. and L. M., of , in said county, acknowledge our- selves to be severally indebted to the People of the State of New York, that is to say : The said E. F. m the sum of dollars, and the said L. M., in the sum of dollars, to be well and truly paid, if default shall be made in the condition following :* Complaint on oath having been made to the undersigned, G. H., a Justice of the Peace of the said county, by C. B., an apprentice, against E. F., his master, above nimed, the parties were summoned and appeared before the said Justice, and after due examination into the premises, the diflBculty between the said parties could not be compounded or reconciled: Now, therefore, the condition of this recognizance is such, that if the said E. F. shall personally appear at the next Court of Sessions, to be held in and lor said county, then and there to answer to the complaint aforesaid, and to do and receive what shall, by the court, be then and there enjoined upon him, and shall not depart the court without leave, then this recognizance shall be void, otherwise of force. Taken, subscribed, and acknowledged, ) E. F. [l. s.j the day of ,18 , before me, J L. M. [l. s."] G. H., Justice of the Peace. 7,1 ^- § 101. Order of Court of Sessions on the Complaint. State of New York, ] County, A.t a Court of Sessions of the county of , held at in and for said county, on the day of ,18 Present, N. 0., County Judge ; G. H., and S. T., Justices of the Peace : Complaint on oath having been made to G. H., a Justice of the Peace of the said county, by C. B., an apprentice, against E. F., his master, who had received the sum of tifty dollars [or, who was entitled to j-eceive, &c., as m § 98,] as a compensation for the instructioEWf the said C. B., that the said E. F. had cruelly beat, 1 If the Justice decides to make such order I may be varied for the purpose. If the difTi> and direction in the premises as the equity of culty cannot be compounded or reconciled, f Ae case seems to require^ forms § 94, or §97, | forms § IQO, etc. , will be foimo applicable. 60 NEW CLERK'S ASSISTANT. bruiarid, and wounded him, the said C. B., being his apprentice, as aforesaid, [or, had misused and ill treated him, the said C. B., being his apprentice, as aforesaid, by refusing to furnish him with necessary provisions and clothing,] the said parties were summoned and ap- peared before the said Justice ; and, after due examination into the premises, the difficulty between -the two parties could not be com- pounded or reconciled : Whereupon the said E. F. was recognized personally to appear at this Court of Sessions of the said county, to answer to the complaint aforesaid, &c.: And now, the said parties having been heard . by their respective counsel, it is ordered and decreed by this court, that the indentures of apprenticeship of the s^d C. B. be, and the same are, hereby canceled, and declared of none eflFect ; and that the said C. B. be, and is, forever discharged from the same : And it is further ordered, that the said E. F. refund to A. B., [or, to the personal representatives of A. B.,] the father, [or, to M. B., the mother, or, guardian, as the case may 5e,] of the said C. B., the sum of fifty dollars, [or, the sum of dollars, being part of the aforesaid sum of dollars,] paid by the said A. B. to the said E. F., as a compensation for the instruction of the said C. B. ; \or: And it is further ordered, that A. B., or the personal represen- tatives of A. B.,] the father [or, M. B., the mother, or, guardian, as the case may-he^ of the said C. B., be, and he [or, she] is hereby forever discharged of and from his [or, her] agreement to pay to the said E. F. the aforesaid sum of dollars, on the day of , 18 , as a compensation for the instruction of the said C. B., and that the securities given therefor be forthwith delivered up or can- celed.] L. M., Clerk § 102. Complaint ly Master against Apprentice Refusing to Serve, where Money has been paid, or agreed to he paid. To Or. H., a Justice of the Peace of the county of : I, E. F., of the town of , in said county, hatter, hereby make complaint to you, that C. B., an apprentice lawfidly bound to serve me. the said E. F., whose term of service is still unexpired, and with whom I have received the simi of dollars, [or, with whom I am entitled to receive the simi of dollars, on tbp day of , 18 ,] as a compensation for his mstruction, refiises to serve me, aa by law and the terms of his mdenture of apprenticeship he is required. Dated, &c., [as m § 88 with the verification^ § 103. Svmmons on the foregoing Complairt^ County, ss: "o any Constable of said County, greeting: Complaint has been made to me, G. H., one of the Justices of the APPEENTICE8 AND SERVANTSl 61 Peace of said county, upon the oath of E. F., of , in said county, hatter, that C. B., an apprentice lawfully bound to serve the said £. F., whose term of service is still unexpired, and with whom the said E. F. hath received the sum of dollars, [or, with whom the said E. F. is entitled to receive the sum of dollars, on the day of , 18 ,] as a compensation for his instruction, refuses to serve the said E. F., as by law and the terms of his indenture of apprenticeship he is required: Now, therefore, you are hereby commanded, &c. [as in § 99.] § 104. Recognizance of Apprentice and Surety on foregoing Complaint. State of -New York, )g. County, J We, p. B., and K B., of, &c., \as in § 100 to the*, and then add/] Complaint on oath having been made to the undersigned, G. H., a Justice of the Peace of the said county, by E. F., the master, against C. B., his apprentice above named, the parties were summoned, &c., [as m § 100 to the end, substituting the name of the apprentice for that of the master.'] § 105. Order of Court of Sessiotts on the foregoing Complaint. State of New York, ) g^. County, ) At a Court of Sessions of the coimty of , held at , in and for said county, on the day of ,18 : Present, N. C, County Judge; G. H., and S. T., Justices of the Peace : Complaint .on oath having been made to G. H., a Justice of the Peace of said county, by E. F., the master, against C. B., his appren- tice, with *hom the said E. F. had received the sum of dollars, [or, with whom the said E. F. was entitled to receive the sum of dollars, on the day of ,18 ,] as a com- pensation for Ms instruction, that the said C. B. refused to serve the said E. F., as by law and the terms of his mdenture of apprentice- ship he was required, the said parties were summoned and appeared before the said Justice ; and after due examination into the premises, the difficulty between the said parties could not be compounded or reconciled : Whereupon the said C. B. was recognized personally to appear at this Court of Sessions of the said county, to answer to the complaint aforesaid, &c. : And now, the said parties having been heard by their respective counsel, and the said C. B. being found guilty of the premises, it is ordered and decreed that the said C. B. '..e fined in the sum of dollars, [or, that the said G. B. be (i'i ' NEW CLERK'S ASSISTAMT. imprisoned in the common jail of said county of , there to remain in solitary confinement until he shall consent to serve the said E. F.; or, if necessary, include both ^ne and imprisonment, or follow § 101, according to the order of the Oourt.y ^ 'Where the master complains agalDStthe apprentice, for -any misdemeanor, or 111 beha- Tlsr, forms g 102, tto., will require but little altentioa to meet the onMi CHAPTER IV. ARBITRATION AND AWARD. PRACTICAL EEMARES. 1. All persons, except infants and married ■women, and persons of unsound mind, may, by an instrument in ■writing, submit to the decision of one or more arbitrators, any controversy existing between them -which might be the subject of an action at law, or of a suit in equity; 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 conmion, or concerning the boundaries 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 deagnated 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 heating, 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 administered by any Judge, of any Court of Record, or by any Justice of the Peace, oi 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 thent' 3. All the arbitrators must meet together, and hear all the proo& and allegations of the parties; but an award by a majority -vnll be >2n.S. (3ded.)628, ;S1,2; lHiII,44. I chap. 187; 1 HiU,4S9: 3 Barbour'o S. C. • 2 B. S. (3d ed.) 629, M 3-« ; Laws of 1843, | Rep., 276. 64 NEW CLERK'S ASSISTANT. valid, unless the concurrence of all be expressly required in tiff 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 absolutely void.'' 5. Upon proving the submission and the award, 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, imless the same be vacated or modified, or a decision thereon be postponed.' 6; Any party complaining ef 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 arbitratore 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 Hke 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. AU 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 wUl be liable to the adverse party for all the costs, expenses, and 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 will be entitled to recover the costs, expenses, and damages he may have incurred.' 10. Where a judgment, entered ui 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, 55 7, 8 ; 2 Hill, 76 ; i Barbour's S. C. Rep., 250. » 3 Barbour's S. C. Rep., 275. » 2 R. S. (3d ed.) 629, § 9 : "6 WendeU, 102 ; Id., 520 ; 4 Hill, 551 : 6 Id., 303. * 2 R. S. (3d ed.) 629, 5 10 ! 17 Johnson, 406; :0 Wendell, 589: 17Id.,412i 1 HiU, 319, 489. »2R. S.(3decl.)629,630,55 11, 12; 6 Wen- dell, 620 ; 10 Id., 689 ; 17 Id , 412 ; 1 Paige, 293 • »'2 R. S. (3d ed.) 630, §5 13-17. » 2 R. S. (3d ed.) 631, 55 23, 24 ; 16 John- son, 206; 6 Paige, 678. •2R. S. (3ded.)631.5 18. » 12 Wendell, 603 ; 1 Hill, 69 ; 2 Id., 387 ; 6 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 counterpart of the award delivered to the pre- vailing party is prepared for the other party.' 13. If an agent enter info a submission in his own name, or if a person on behalf of himself and others, but without authority, enter into such submission, he wiU be personally bound to perform the award." 14. A submission to ai-bitrators 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.* 16. 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 disagreement, the award of the umpire, when made, is final and conclusive.' 20. The power of arbitrators is confined to the parties submitted, and if they exceed that limit, 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 arbitrators, but suit may be maintained by them separately, for a reasonable sum in payment for their services." 24. Arbitrators are not obliged 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 diflfer 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 5 Hill, 419. 3 2 Hill, 471. « 3 Barbour's S. C. Rep., 56. 1 Barbour's S. C. Rep., 584. < 1 Barbour's S. C. Rep., 325. ' 2 Barbour's Ch. Rep., 430. » 17 Johnson, 405 ; 1 Hill, 489. » 7 Hill, 329. 10 7 Hill, 329. 11 1 Denio, 464. " 1 Denio, 183. IS 3 Barbour's S. C. Rep., 276. 14 Amended Consf'tutioa, (1846.) Art vi.. 5 23. 66 2ra;W CLERK'S ASSISTANT. FOEMS. I § 106. Special Submission, to Arbitrators. Whereas a controversy is now existing and pending, between A. B., o^ &c., and C. D., of, • G. H. ) t Each party should hare a bond. The obligor in one will be the obligee in tne 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. 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., 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, (fee, 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. F., L. M., and 8. T., Esquires: You are hereby notified, that you have been nominated and chosen arbitrators, as well on the part and behalf of the imdersigned A. B., of, (fee, as of C. D., o^ (fee, also imdersigned, to arbitrate, award, • C. G.H. ) L B. [l. s.] Z. D. [l. s.] § 126. General Assignment. Know all men by these presents: That I, A. B., oi, &c., for value received, have sold, and by these presents do grant, assign, and con^ vey, unto C. D., of, &c., aU 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 Xm account of, all or any of the notes, accounts, dues, debts and demands, above assigned ; giving and granting unto my said attorney, fuU power and authority, to do and perform all and every act and thing whatsoever, requiate 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 * The above form may be readily varied, If the asBigmnent is intended to be made for the general benefit of creditora, 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 assignirtnt embracing real property. ASSIGNMENTS. '^ 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 dehvered, ) in the presence of >■ E. F. ) A. B. [l. 8.J § 127. Assignment of Bond. Know all men by these presents: That I, A. B., of, ■ G. H. ) A. B. [l. S.J § 129. The Same, in a Shorter Form. Supreme Court: A. B. 1 Judgment for Si 000 on a bond, dated first May, against > 1845. ' Conditioned for the payment of $500 and E. F. ) interest — 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. V Judgment docketed 31st July, 1847, for $210, against V 27, damages and costs. E. R ) 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, &o., 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, &c., 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, (fee, 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, imto the said party of the second part, his executors, administrators, and assigns, for their use and benefit; subject only to the proviso 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, Jbut at his own proper costs and charges, to have, use, and take, all 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, (fee, \obS in § 126.] 132. The Same, in a Shorter Form,. E. F., and M., his wife, vs. Mortgage dated the day ot (fee, executed by E. F., and M., his wife, A B. i( to A. B., on certain premises describee! 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 , (fee. Bond bearing date the day aforesaid, executed by E. R, to A. B., aforesaid, in the penal sum of dollars, conditioned for the payment of dollars, secured by the above mortgage, on the day of , 18 , with interest In consideration of dollars, to me paid, by C. D., o^ (fee, 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 my name, or otherwise, but at his own costs and charges. And I do hereby covenant that the simi of dollars, with interest from the dav of laat • 80 IfEW 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 in § 126.] § 133. The Same, Endorsed on Mortgage. In consideration of doDars, 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 accompanying the same, for his use and benefit; hereby authorizing him [as in. § 132, to the endl\ § 134. Assignment of Bond and Mortgage, as Collateral Security. This indenture, &c., [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 efiect ; 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.l in presence of f C. D. [l. s.J 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 of 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., o^ &c., to me, the said A. B., of » certain dwelling- ASSIGNMENTS. 81 lioiise 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 unto the said C. D., his heirs, executors, administrators, and assigns, from the 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, back rents, taxes, assessments and incumbrances, whatsoever. In witness, &c., [^as in § 126.] § 136. The same, by JEndorsement. In consideration of the sum of dollars, to mc in hand paid, by C. D., o^ &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, &o., [as in § 126.] § 137. Assignment of Contract for the Sale of Beal Estate. • Know aU 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 these Dresents do sell, transfer, assign and set over, iinto 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 in full;'] which said contract was made and executed by E. F., of, ] R. S. (3ded.}e48, 527. ' Laws of 1849, chap. 399. < 1 R. S. (3d ed.) 648, 5 25; Laws of 1835 chap. 62. ' Lawa of 1847, chap. 342, AUCTIONS. FORMS. § 145. Auctioneer's Bond. Know all men by these presents: That we, A. B., C. D., and E. F., oi, &c., are held and firmly bound unto the people of the State of New York, in the penal sum of ten thousand dollars, to be paid to the said people ; for which payment, weU and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. Sealed with our sesds. Dated the day of , A. D. 18 . The condition of this obligation is such, that if the above bounden A. B. shall well and faithfully perform the duties of an auctioneer, in and for the city \or, county] of , and pay, or cause to be paid, the djties that are, or shall be, imposed by law, and that shall accrue on all sales made by him, or imder his direction, as such auctioneer; and shall render a true and accurate account semi- annually, of all goods sold or struck oflF by him, then the above obligation shall be void ; else to remain in full force and virtue. Signed and sealed, in the 1 A B. [i» s._ presence of \ 0. D, [l. s. G. H. ) E. F. [l. s.; § 146. Certificate of Officer Taking and Approving the Bond. State of New York, ) g^. County, j On this day of , 18 , personally appeared before me, A B., C. D., and E. F., known to me to be the persons described in, and who executed the foregoing bond, and they acknowledged that they executed the same: and I hereby certify tiiat I approve of the said bond, as suflScient for the purposes therein mentioned. G. H., Mayor of the city of , [or. County Judge of county.] § 147. Certificate to Copy. State of New York, ) ^^ . C ty and County of New York, f I do hereby certify, that the within [or, annexed] is a true copy of a bond taken and approved by me, according to the statute, and of the certificate endorsed thereupon at the time of such taking and approval. Dated the day of ,18 . G. H., Mayor of said city and county. i*0 KEW CLERK'S ASSISTANT. § 148. Oath of Copartner, or Clerk. I, S. T., do solemnly and sincerely swear, [or, affirm,] that I am the copartner [or, clerk] of A. B., an auctioneer duly authorized to act as such, in and for the city [or, county] of ; * and that 1 will fully and faithfully perform the- duties incumbent on me by the proTisions of Title 1 of Chapter 17 of Part I. of the Revised Sta- tutes of the State of New York Taken and subscribed before me, ) S. T this day of , 18 . ) G. H., Mayor, &c. § 149. Oath of Auctioneer on Exhibiting his Account. I, A. B., do solemnly and sincerely swear, [or, affirm,] that the account now exhibited by me, and to which I have subscribed my name, contains a just and true account of all the goods, wares, mer- chandise and effects, sold or struck off, or struck off and not actuaEy sold, or bought in by me, at public sale, or sold by me at private sale on commission, whether subject to duty or not^ or sold, struck off, or bought in, as aforesaid, by others in my name, or under my direction, or for my benefit, within the time mentioned in the within account ; and of the days upon whiclf the same were respectively sold; and that I have attended, personally, such of the said pub- lic sales as are not stated in the said account to have been made vrithout my attendance; and that the causes therein mentioned of my absence from such sales as I did not attend, are truly stated; that I have examined the entries of all the sales men- tioned in said account, in the book kept by me for that purpose, and fully beheve this account to be in all respects correct; and further, that I have, during the time therein mentioned, conformed, in all things, to the true intent and meaning of the laws regulat- ing sales by auctioneers, according to the best of my knowledge, information and behef. ' A. B. Taken, (fee, [as in § 148.] § ISO. Oath of Copartner or Clerk, to be indorsed on t!ie Account. I, S. T., do solemnly and sincerely swear, &c., [as in § 148 to the *, and then add:'^ that I believe the account of sales within rendered by the said A. B., to be just and true in every particu- lar ; that the sales therein Btientioned, opposite to which my name is set, [or, my initials are set,] are all the sales Uable to auction duties, pubhc or private, made by me within the time mentioned in said. account; and that the account of such sales so therein stated, is just and true; that such sales were made by me in the absence of said A. B., who was unable to attend, from the causes specified AUCttONS. 91 "n his account; and that in all acts performed by me, in behalf of such auctioneer, during the time aforesaid, I have endeavored to conform to the true intent and meaning of the laws regulating sales by auctioneers. Taken, &o., [as in § 148.] § 151. Certificate of Board of Fort Wardens. Stati of New York, ss: We, the undersigned, composmg the Board of Port Wardens of the Port of New York, do hereby certify, that the goods mentioned and described in the annexed invoice, part of the cargo of the biig Mary Ann, on her voyage from to , which terminated on the day of ,18 , were duly examined by A. B., one of the undersigned, at a suitable and proper time ; to wit : on the day of ,18 ; and that the said goods were damaged on the voyage aforesaid, so as to be entitled to exemption from auction duties, and to be sold as damaged goods, according to the provisions of the statute in such case made and provided. Given under our hands, at the Port of New York, this day of , 18 . A. B., C. D., }- Port Wardena &c., &c.. § 152. Affidavit of President, or Secretary, of Insurance Company. State of New York, ) g. City and County of New York, J G. B., being duly sworn, says : That he is the President [or, Sec- retary] of the Insurance Company in said city and county ; and that the goods mentioned and described in the annexed mvoice, and referred to in the certificate of the Board of Port Wardens there- unto attached, were insured in the said Company, by L. M., the owner [or, consignee] thereof, for the sum of dollars; and further says not Sworn to, before me, this ) Q. B. day of ,18 .J O. H., Commissioner of Deeda. CHAPTER Vn. BANKS AND COEPOEATIONS. PRACTICAL REMARKS. 1. The general laws of this State, in relation to turnpike and moneyed corporations, — ^their powers, privileges, liabilities, etc^-may be found, in detail, in Chapter 18 of Part I. of the Eevised Statutes, ( Volume I., p. 710, et seq., 3d ed.) 2. The duties and liabilities of banks, and the authority of directors to give discretionary powers to officers, in making loans and discounts, are reviewed at length, in the case of The Bank Commissioners, vs. the Buffalo Banks, (6 Faige, 499.) 3. Chapter 437 oif the Laws of 1849, requires every company or association, including every individual doing business alone, incorpo- rated or organized, or doing business imder any law of this state, to publish annually, on or before the first of September, for six succes- sive weeks, in one public newspaper, printed in the county in which the company or association may be located, a true and acciirate statement, verified by the oath of the cashier, treasurer, or presiding officer, of all deposits, dividends, and interest, unclaimed for two years then next preceding. 4. For other special provisions in relation to banking corporations, see Laws of 1837, chap. 20; Id. chap. 235; Laws of 1839, chap. 355; Laws of 1840, chap. 18; Id., chap. 202; Laws of 1842, chap. 247; Laws of 1843, chap. 218; Laws of 1845, chap. 114; Laws of 1847, chap. 160; Id., chapi 419 j Laws of 1848, chap. 344. 5. No special charter can be granted for banking purposes ; but corporations, or associations, may be formed for such purposes under general laws. No law can be passed, sanctioning the suspension of specie payments by any person, association, or corporation, issuing bank notes of any description ; and in case of the insolvency of any bank, or banking association, the biUholders wUl be entitled to pre- ference in payment over all other creditors.' 1 Amended Constitution of New York, An. viU., §§ 4, 5, 8. BANKS AND CORPORATIONS. 93 6. After the first day of January 1850, the stackholders in every corporation, or association for banking purposes, issumg bank notes, or paper credits, to cmjulate 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.' I. 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 tmder this law are liable to taxation." 8. The provisions of law applicable to religious incorporations, are contained in volume III. of the Revised Statutes, (3d ed.,) p. 244, et seq. The treasurer of every reli^ous 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 tnenniaUy to one of the Justices of the Supreme Court, or a Judge of the Court 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 diising therefrom ; and if this duty be neglected for the space of six years, and if the account and inventory are not then exhibited, and the certificate of the ofiScer, 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. II. 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 York, Art. | 2 Id., 241 : 3 Id., 389 ; 4 Id., 442 j 7 Id , B04 j viii., 5 7. 1 Denio, 9 ; 2 Id., 38l>. 9 Zt Wendell, 9 ; 23 Id., 103 ; 1 Hill, 616 ; > Laws of 1S49, (Code of Practice,) chnp, I 438, § 30, sub. S. 94 NEW CLERK'S ASSISTANT. cept for municipal purposes, can be created by special act, wheie 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 any officer authorized to take acknowledgments, or proofs of conveyances of real estate.' 16. Whenever any church, congregation, 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 sig-ned by three elders and a trustee, does not bind them to pay the salary, but is the act of the congregation.' 18. The seal of a corporation maybe affixed, or impressed, directly on paper, without the use of wax or a wafer.' 19. It is not necessary that the proceedings of a corporation, at a corporate meeting, should be authenticated by seal.' FOKMS. § 153. Transfer of Stock in a Banle, 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, &c., twenty shares of capital stock, standing in my name, on the" books of the Bank: [or, Company, as the case may be:'] and I do hereby constitute and appoint the said C. D., my true and lawful attorney, irrevocable, in my name or otherwise, but to his own use and benefit, and at his own costs and charges, to take all lawful ways and means for the recovery and enjoyment thereof. In witness whereof, I have hereunto set my hand and seal, the day of , A. D., 18 Sealed and delivered ) A. B. [l. s.] in the presence of f G. H. 1 Amended Constitution of New Yoric, Art. Tiii., §§ 1-3. > 2 Denio, 674. > Laws of 1814. chap. 168, §! 1, 2. • LawB of 1844, chap. 158, 5 3. ' 6 Hill, 630. • Laws of 1818, chap. 197. ' 1 Barbour's S. C. Rep., 681. BANKS AND COEPORATIONS. 95 § 164. Power to Transfer. Know all men by these presents : That I, A. B., o^ &c., qo here- _ by constitute and appoint E. F., of,' (fee, my true and lawful attor- ' ney, for me, and in my name and behalf, to sell, assign and trans- fer to C. D., of, (fee, 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 witaess, The original miist be filed in the Clerk's I be carried on, and a duplicate in the office of cffice of the county in which the business is to | the Secretary of State. BANKS AND CORPORATlONa 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 undersigned, L. M., was, by a ma- 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 con- gregation and church, and 0. P., S. T., &c., {name eight persons,'] were dxdy elected Vestrymen; that Tuesday in Easter Week, [or, as the case may Se,] was, by the said meeting, fixed on as the day on which the said offioes of Church Wardens and Vestry- men should annually thereafter cease, and their successors in office be chosen ; and that the said meeting determmed 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.,j who presided at the said election of Wardens and Vestrymen, and K F. and S. T., who were present and witnessed the proceedings aforesaid, have hereunto subscribed our names, and affixed oiu" seals, this day of , in the year of our Lord one thousand eight hundred 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, ) Coimty, J We, the undersigned, two of the elders, [or, two of the members,] cf the church [or, congregation; or, refigious society] hereafter mentioned, do hereby certify, that on the day of instants the male persons of fuU age, belonging to a church [or, con ■ gregation ; or, religious society] in which divine worship is celebra- ted, according to the rites of the chxu-ch, 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 coimty, for the purpose of mcorporaling 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 must be acknowledged, or I worship is situated. For the forms, see chap proved, before a J ufltice of the Supreme CourL ter I., and § X63, ante. or Judge of the county in which the place or | ' 100 NEW CLEEK'S ASSISTANT. their nuccessors should forever hereafter be called and known ]|j)y .he name, 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 >• G. H. [l. s.J S. T. §167. Triennial Report of a Beligious Corporation. To the Hon. J. W. E., one of the Judges of the Supreme Couit of the State of New York : The imdersigned, the Eeotor, 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, society,] at the time of the exhibition of this report, to wit: One church 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. [Insert here all the parcels and items of the real and personal estate.'^ And the undersigned further report that the foEowing is a just and correct account of the annual revenue arising from the real and personal estate aforesaid, from the day of , 1 847, 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- •d'' [■ Churchwardens. B.J.,' ) S. T., V Vestrymen. &o. &c ) State of New York, ) City and County of New York, 0. S. R, R R, &c., (fee, being duly sworn, depose and say, and «ach for himself deposeth and saith, that he has read [or, heard read] the foregoing report by him signed, and that the same is in all respects faithful, just and true, to the best of his knowledge and belief Sworn [or, affirmed] to, this day ) C. S. R, of ,18, before me, j &c. 2 R. S. (3d ed.) 54, 55, 55 18-23. 2 a Demo, 428. s 5 Johnson, 237; 2 Cowen 636; 10 Wendell, 675; IHill, 256; 7 Id., 253; 3 Barbour's S. • u i,.„, ,«, .„.,...»,,.. C, Rep.. 374. I a 7 Hill, 416; 1 Denio, 608. 4 10 Johnson, 141; Id., 349. » 2 Denio, b;2l: 3 W., 187. » 15 WTendslI, 343; 24 Id., 35: 26 Id.. 425- S ' Barbour's S. C. Rep., 51; 5 Denio, 484: i Comslock 225; Id., 533; Id., 553. »4 Hill, 420; 6 Id., 639. ' 6 Hill, 443; 1 Denio, 471. New York, for all purposes whatsoever, as regards the presenting for payment or acceptance, and the protesting and giving notice of . dishonor, of bills of exchange, bank checks, and promissory notes, made or drawn after the 7th day of April, 1849." 17. BDls, or notes, payable on demand, given due, or on the face of which there is no time of payment expressed, are immediately due, without grace.' 18. A note payable in specific articles, "when called for," or without mentioning any time for the payment, is payable on demand, at the place where the articles are sold, or manufactured, by the maker ; but demand must be made within reasonable hours.' 19. In order to hold an endorser liable, a demand of payment on bills, or notes, must be made on the third day of grace. If the third day falls on Sunday, or on any great holiday, demand must be made on Saturday, or the day preceding the holiday. The demand must be made at the place of business of the maker, or acceptor, within business hours, or at the place of payment, where it is specified. If the party has absconded, no demand is necessary; and where he has no place of business, it may be made at his dwelling-house. It is competent for any person, who has arrived at years of discretion, though not a Notary, to make the demand, if authorized by the holder. An endorsed note, payable on demand, must be presented within a reasonable time. In Massachusetts, sixty days has been held reasonable.' ^ 20. Where a note, not payable at any particular place, is made arid endorsed in New York, and both the maker and endorser reside in a foreign country, it must be duly presented to the maker, if the place of his residence be known, and notice given to the endorser, in order to charge the latter.' 21. A person becoming surety on a note, must be treated and charged as an endorser.' 22. An endorser may waive demand and notice before maturity of the bUl or note endorsed, without any consideration for such waiver.' , 23. The dating of a promissory note at a particular place does not make that the place of payment, and authorize a demand to be made there to charge the endorser; though it is presumptive evidence that the place mentioned is tht residence of the maker.* i8Cowen,203. I « 1 Barbour's S. C. Rep., 158 ; 1 Comsloct » Laws of 1849, chap. 261. 321. » 8 Johnson, 189 , Id, 374 ; 3 Denio, 12. '7 Hill, 416. « 2 Denio, 145 « 1 Comstock, 186. « 4 Hill, 129. I oSDsmu, 14S. BILLS AND NOTES. 105 24. Where a note is assigned after maturity, the assignee takes it subject to all equities and set-offs, between the assignor and the maker.' 25. One who makes or endorses an accommodation note is a suret; for tlie party accommodated, and the latter is liable to refund the costs of a suit for collection brought against such maker or endorser.' 26. In all cases where notice of non-acceptance, or non-payment, of a bin or note, or other negotiable instrument, may be given by mail, it will be sufficient if such notice be directed to the city, or town, where the person sought to be charged resided, at the time of making, drawing, or endorsing the same, unless at the time of such making, drawing, or endorsing, he shall specify thereon the post office to which he may require the notice to be addressed.' 27. A notice of protest should be sent to the post office at which the person to whom it is directed is accustomed to get his letters, where his address is npt endorsed on the biU or note.* 28. No precise form of words is necessary to constitute a sufficient notice of protest. The identity of the note, and the fact of the demand and non-payment, must be brought home to the party sought to be charged, and the notice may be either oral or written.' 29 The certificate of the Notary need not state, by whom the service of notice, and deposit in the post office, was made.' 30. A sealed note is a specialty, and is not barred by the statute of limitations. FORMS. § 170. BUI of Exchange.^ 12000. Buffalo, May 1, 1846. Thirty days after sight, pay to the order of Messrs. B. M & Ca two thousand dollars, and charge the same to accoimt of AB. To Messrs. T. R & Co., New York. 1 11 Wendell, 404. > 3 Barbour's S. C. Rep., 634. » 2 R. S. (3d ed.) 55, f 24 i Laws of 1835, sbap 141. » 4 Harbour's S. C Rep., 324. Oomstoclr, 413. « 7 Hill, 444. ' The usual form of accepting, ia to write the word " Accepted," with the name of the acceptor, across the face, or on. the bacit of the bill or draft. 106 NEW CLEEK'S ASSISTANT. § 171. A Set-of BUls. No. 139. — Ex. £250 stg. New Yore, 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 accoimt 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 second of exchange, (first and third impaid,) pay to Messrs. G. W. ' Denio, 560 j 1 Barboui'a S. C. Rep, 3 1 Denio, 163. 542-1 ComStock, 90. 3 23 Wendell, 66r; 1 HUl, 473; 2 Denio, m. I BILLS OF SALE AND CHATTEL MORTGAGES 115 FORMS. § 193. Common Bill of Sale. Know all men by these presents : That I, A. B., of the town of , in the county of , and State of New York, of the first pukTt, 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, th^ receipt whereof is hereby ac3mowledged, have bar- gained and sold, and by these presents do grant and convey, unto the said party 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, his executors, administrators and assigns, forever. Aild I do, for myself my heirs, executors and administrators, covenant and agTee, to and with the said party of the second part, 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 aU 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, sealed and delivered, ) A. B. [u s.] in presence of J G. H. § 194. Bill of Sale in consideration of Maintenance. This indenture, made on the day o^ Chattel Mortgage to Secure Endorser. This indenture, made, (fee, \as in § 197 to the *, and then add:'] Provided, nevertheless, that if the said party of the first part shall well and truly pay, at maturity, the fuU amount, principal and inte- rest, of a certain promissory note, executed by him, and endorsed by the party of the second pait, for the sum of dollars, bearing even date herewith, payable one year from date, and now held by E. F., of, &c., then this conveyance shall be void; otherwise to re- main in fuU force and effect In witness, &c., \as in § 197.] § 200. Chattel Mortgage Requiring Sale to le Made. This indenture, made, (fee, [as in § 197 to the words, " In witness whereof, (fee," and then add:] But if default shall be made in the jjttyment of the principal or interest above mentioned, or any part thereof, then the said party of the second part, and his assigns, are hereby required to sell the goods, chattels and property, above granted, BILLS or SALE AND CHATTEL MOETGAGES 119 at public auction, after giving notice thereof in the manner provided b;^ law for constable's sales, and out of tlie proceeds to satisfy the amount then due to the party of the second part, or his assigns, with the costs and expense's incurred by reason of such defaidt, and return the surplus, if any there be, to the said party of the first part, or his personal representatives. In witness, &c., [as m § 197.] § 201. Conditional Clause as to Possession. Provided, nevertheless, \or, And provided also,] that, until default by the party of the first part^ in the performance of the conditions aforesaid, it shall and may be lawful for him to keep possession of the property above mentioned and described, and to use and enjoy the same ; but if the said party of the first part shall attempt to seU the same, or any part thereof, or to remove the same out of the county of , without notice to the said party of the second part, or his assigns, and without his, or their, assent to such sale or removal, to be expressed in writing, then it shall be lawful for the said party of the second part, or Ms assigns, to take immediate pos- session of the whole of said property, to his, or their, own use. § 202. Chattel Mortgage to Secure a Debt. Whereas I, A. B., of the town of , in the county of , and State of , am justly indebted unto C. D., o^ &c., in the sum of dollars, on account, to be paid on or before the day of next, with interest from this date : Now, therefore, in consideration of such indebtedness, and in order to secure the pay- ment of the same, as aforesaid, I do hereby sell, assign, transfer and set over, unto the said C. D., the property mentioned and described in the schedule hereinunder written ; Provided, however, that if the said debt and interest be paid, as above specified, tliis sale and trans- fer shall be void; and this grant is also subject to the following conditions : The property hereby sold and transferred is to remain in my pos- session until default be made in the payment of the debt and interest aforesaid, or some part thereof, unless I shall seU, or attempt to sell, assign, or dispose of, the said property, or any part thereof, or sufier the same unreasonably to depreciate in value ; in which case the said C. D. may take the said property, or any part thereof, into his own possession. Upon taking said property, or any part thereo:^ into his possession, either in case of default, or as above provided, the said C. D. shalt sell the same 'at pubUc or private sale ; and after satisfying the afore- said debt and the interest thereon, and all necessary and reasonable 120 NEW CLEEK'S ASSISTANT. costs, charges and expenses, incurred by Mm, out of the proceeds of such sale, he shall return the surplus to me or my representatives. Witness my hand and seal, this day of ,18 A. B. [l. s.j SCHEDULE ABOVE REFERRED TO. [^Insert the articles, and let the mortgagor sign his name at the foot of the listl § 203. Statement to he FUed with the Copy, within thirty days next preceding the expiration of the year. County, \ Town of , j ®®- I, C. D., the mortgagee, [or, E. R, the assignee of C. D., the . mortgagee,] named in the within [or, annexed] instrument, do hereby certify, that the sum of ninety-seven dollars and ten cents is claimed by me to be due thereupon, at the date hereof ; which sum consti- tutes the amount of my interest in the property therein mentioned and described. Dated the day of , 18 . In presence of ) C. D., Mortgagee, R E. [ [or, E. R, Assignee.] § 204. Notice of Sale on Chattel Mortgage} MORTGAQE SALE. By virtue of a chattel mortgage executed by A. B. to C. D., dated the day of , 18 , and filed in the oflfice of the Eegis- ter of the city of , [or, the County Clerk of the county of ; or, the Town Clerk of the town of ,] on the day of , in the year aforesaid, and upon which default has been made, I shall sell the property therein mentioned and described, viz : [mention the articlesi\ at public auction, at the house of , in the city [or, town] of , aforesaid, on the day of instant, [or, next,] at ten o'clock in the forenoon of that day. Dated at , the day of , 18 . C. D., Mortgagee, [or, E. R, Assignee.] 1 Where no time is Bpecified in die mortgage, fire or six days' notice of the sale will l» ■tifflcient. CHAPTER X. BONDS. PRACTICAL REMARKS. 1. A bond is the acknowledgment of a debt, duty, or obligation; and it is immaterial what mode of expression is used, provided tho language be sufficient to establish an acknowledgment of a debt All persons legally capable of making a contract, may bind them- selves in a bond. 2. Every bond, in itself, imports a consideration ; and a failure of the consideration is not a good defence to an action brought on the bond' 3. Fraud, or an illegal consideration, will invalidate a bond. 4. Wax, or some other tenacious substance, is necessary to con- stitute a seal in this State, except it be the seal of a coiirt, public officer, or corporation." 5. Payment may be pleaded iu an action on a bond for the pay- ment of money, though not made strictly according to the condition ; and if the amount due thereon be paid after the commencement of suit, and before judgment, the action wiU be discontmued." 6. The sum equitably due, by virtue of the condition of a bond, may be set off in any action where a set-off is allowed.* 7. An action may be brought in a Justice's court on a bond, the penalty of which exceeds one hundred dollars, provided the amount required by the condition does not exceed the sum of one hundred doUars.' 8. A bond required by law to be given, will be deemed sufficient, if it conform substantially to the form thereof prescribed by the sta- tute, and do not vary in any matter, to the prejudice of the rights of the party to whom, or for whose benefit, such bond shall be given.* 1 2 Jolmson, 177 ; 13 IJ., 430 ; 1 Denio, 226. 2 2 Hill, 227; 3 Id., 493; Laws on848, chap. 197. a 2 R. S. (Sd ed.) 449, §§ 30, 31 ; 19 Wfen- dell, lOr. r 4 2 R. S. (3d ed.) 460, § 39, sub. 1 ; 15 Wendell, 51. 6 Laws of 1840, chap. 317. 1 2 R. S., (3il ed.) 641, § 31 ; 7 Paige 50 • 26 Wendell, 60?. 123 HEW CLEEK'S ASSISTANT. 9. The amount of the judgment rendered on a bond conditioned for the payment of money, is the penal sum, which is usually double the amount of the condition, in order to cover interest and costs. 10. A bond conditioned for the performance of a specific act, is broken on the failure to do it ; but where the obhgee is mdemnified against damage or molestation, they must first be sustained, before a recovery can be had.' 11. A joint and several bond and warrant of attorney, signed by three persons, will not authorize a separate judgment against one, but only a joint judgment against alL' 12. An action on a sealed instrument must be brought within twenty years after a right of action accrues.' 18. A lottomry bond is an obligation founded on the joint secu- rity of a ship and its owners, and given for money borrowed, which is to be repaid on the successful termination of a voyage. At home, the bond is executed by the owners, or the master, as their agent In a foreign country, the master has full authority to bind the own- ers, and pledge the ship and cargo, by a bottomry bond, in cases of necessity. Any amount of interest may be exacted, so long as the sea risk continues, irrespective of the usury laws ; but when that ■terminates, the obligation wiU only draw legal interest ' Responden- tia is a contract similar to bottomry, except that the loan is made upon the chance of the safe arrival of the cargo. Like bottomry, it is used m cases of emergency. 14. An alteration of a bond, or other sealed instrument, in a ma- terial part, without the consent of the obligor, by any party claiming to recover under it, renders it void; otherwise, if the alteration be made by a stranger, provided the true contents can be made to appear by testimony, though the burden of proof wiU then be ihrown on the party claiming under the instrument* FOEMS. § 205. Common Bond, with Condition. Know all men by these presents : That I, A. B., of the town of , in the county of , and State of New York, am held and firmly bound unto C. D., of, &c., in the sum of one I 1 Comatock, 550. I = Laws of 1849, (Code of Practice.) chaD «6Hm,497. 438, §90. I ♦ 2 Barbour's Ch. Rep., llir ' BONDS. 123 thousand dollars, lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns ; for -which payment, well a,nd truly to be made, I bmd myself, my heirs, execu- tors, and administrators, firmly by these presents. Sealed with my seal. Dated the day of , one thousand eight hundred and The condition of the above obligation is such, that if the above bounden A. B., his heirs, executors, or administrators, shall well and truly pay, or cause to be paid, unto the above named C. D., his exe- cutors, admmistrators, or assig-ns,* the just and full sum of five hun- dred dollars, in five equal annual, payments, from the date hereof with annual interest, then the above obligation to be void; otherwise to remain in fuU force and virtue. Sealed and delivered, ) A. B. [l. s.] in presence of f G. H. § 206. Bond of Two Obligors. Know all men by these presents : That we, A. B. and E. F., of, ifec, are held and firmly bound, unto ■ C. D., of, &c., in the sum of one thousand dollars lawful money of the United States, to be paid to the said C. D., his executors, administrators, or assigns ; for which payment, weD 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. Dated tliis day of , one thousand eight hundred and .* The conditaon of the above obligation is such, that if the above Dounden A. B. and E. F., or either of them, their or either of their heirs, executors, or administrators, shall weU and truly pay, or cause to be paid, unto the above named C. D., &c., [os in § 205 to the Sealed and delivered, ) A. B. [l. s.1 in presence of ) E. F. [l. s.] G. H. § 207. Bond — Severed Payments. Know aU men by these presents : &c., \as in § 205 to the *, and then add:"] the just and full sum of five hundred dollars ; in manner following, that is to say: the sum of one hundred dollars on the tenth day of next ; the sum of two hundi-ed dollars on the day of ,18 ; and the remaining sum of two hundred dollars in one year from the said last mentioned date, fcocether with the legal interest on the whole sum remaining unpaid, 124 NEW CLERK'S ASSISTANT. at the time of each payment; then the above obligation to be void; else to remain in full force and virtue. Sealed, &c., [as in § 205.] § 208. Bond, with Interest Condition. Know all men by these presents : Ac, [as in § 205 to the *, and then add:"] the just and full sum of five hundred dollars, on the day of , in the year of our Lord, 18 , and the legal interest thereon, to be computed from the day of the date hereof, and to be paid semi-annually, on the second day of January, and the iirst day of July, in each and every year; then the above obligation to be void; else to remain in full force and virtue. And it is hereby expressly agreed, that should any default be made in the payment of said interest, or of any part thereof, on any day whereon the same is made payable, as above expressed, and should the same remain unpaid and in arrear, for the space of sixty days, then, and from thenceforth, that is to say, after the lapse of the said sixty days, the aforesaid principal sum of five hundred doUars, with all arrearages of interest thereon, shall, at the option of the said C. D., his executors, administrators, or assigns, become and be due and payable, immediately thereafter, although the period above limited for the payment thereof may not then have expired; any thing herein before contained to the contrary thereof, in any wise notwithstanding Sealed, &c., [as in § 205.] § 209. Bond to a Corporation. Know all men by these presents: That I, A. B., of, &o., am held and firmly bound, unto the Insurance Company, in the sum of one thousand doUars, lawful money of the United States, to be paid to the said Insurance Company or assigns ; for which payment, well and truly to be made, I biad myself, my heirs, exe- cutors and administrators, firmly by these presents. Sealed with my seal Dated the day of , one thousand eight hundred and .* The condition of the above obligatibn is such, that if the above bounden A. B., his heirs, executors, or administrators, shall well and truly pay or cause to be paid, unto the above named Insu- rance Company, or assigns, the just and full sum of, (fee, [as in § 205 to the end."] § 210. Bond to Executors. Know all men by these presents: That I, A. B., of, (fee, am held and firmly bound, unto E. F. and L. M., of, &c., executors of the last BONDS. 125 irtll and testament of S. T., deceased, late of, &c., in the siun of one thousand dollars, lawful money of the United States, to be paid to the said E. F. and L. M., executors as aforesaid, the survivors, or survivor, or his or their 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 the above obligation is such, that if the above bounden A. B., his heirs, executors, or administrators, shall well and truly pay, or cause to be paid, unto the above named E. F. and L. M., executors as aforesaid, the survivors, or survivor, or his or their assigns, the just and full sum of, &c., [as in § 205 to the end-l § 211. Legatee's Bond. Know all men by these presents : That we, A. B. and 0. P., of, &c., are held and firmly bound unto E. F. and L. M., of, (fee, execu- tors of the last wiU and testament of S. T. deceased, late of the town of , in the sum of one thousand dollars, lawful money of the United States, to be paid to the said E. F. and L. M., execu- tors, as aforesaid, the survivors, or survivor, or his or their assigns ; for which payment, well and truly to be made, we bind ourselves, our and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , one thousand eight hundred and .* Whereas, in and by the last will and testament of the said S. T., deceased, a legacy of one hundred doUars is bequeathed to the said A. B., which has been paid to him by the said E. F. and L. M., exe- cutors as aforesaid : Now the condition of this obligation is such, that if any debts against the deceased, above named, shall duly appear, and which there shall be no other assets to pay, and if there shall be no other assets to pay other legacies, or not sufficient, that then the said A. B. shall refund the legacy so paid, or such rateable proportioa thereof, with the other legatees of the deceased, as may be neces- sary for the jiayment of such debts, and the prqportional parts of other legacies, if there be any, and the costs and charges incurred by reason of the payment of the said A. B. ; and that if the probate of the win of the said deceased be revoked, or the will declared void, then the said A. B. shall refund the whole of the legacy, with interest, to the said E. F. and L. M., their executors, admmistratoi's, or assigns. Sealed, &c., [as in 8 205.] A. B. [l. s ] C. D. [l. a 1 126 NEW CLEEK'S ASSISTANT i § 212. Bond of Legatee, or Representative^ before Suit. Know all men by these presents: &c., [as in'^ 211 to the *, and then add:^ Whereas the said A. B. is about to commence a suit in the Supreme Court of the State of New York, against the said E. F. aiid L. M., as such executors, as aforesaid, for the purpose of recovering the amoimt of a certain legacy bequeathed to him, in and by the last will and testament of the said S. T., deceased : [or, for the purpose of recoveiing the distributive share of the property of the said S. T., deceased, due to him, the said A. B., as one of the sons and heirs of the eaid S. T., deceased :] Now the condition of this obligation is such, that if any debts owing by the said deceased shall hereafter be recovered, or duly made to appear, for the payment of which there shall be no assete other than the said legacy, [or, distributive share,] that then the said A. B. shall refund the amount that may be recovered in any action hj him against the said executors, or such rateable part thereof, with the other legatees [or, representatives] of the deceased, as may be necessary for the payment of the said debts, and the costs and charges incurred by a recovery against the said executors, in any suit therefor : [If the bond is given by a legatee, the following clause must be a/Jdedf\ And also, if no sufficient assets shall remain, after the payment of said legacy, to pay any other legacy which may be due, that then the said A. B. shall refund such rateable part or proportion thereof, with the other legatees, or representatives, of the deceased, as may be necessary for the payment of such other legacy. Sealed, &c., [as in § 205.] § 213. Indemnity Bond to Sheriff. Know all men by these presents: That we, A. B., C. D., and H. K, are held and firmly bound unto C. D., Sheriff of the county of , &c. ; [as in^ 206 to the *, and then add:'] Whereas the above bounden A. B. did obtain a judgment in the Supreme Court of the State of New York, on the day of , 18 , against E. F., for dollars and cents, damages and costs, whereupon execution has been issued, directed, and dehvered to the said C. D., Sheriff, as aforesaid, commanding him, that of the goods and chattels of the said E. F., he should cause to be made the damages and costs aforesaid. And whereas certain goods and chattels that appear to belong to the said E. F. are claimed by L. M., of, &c. : Now, therefore, the condition of this obh- gation is such, that if the above bounden A. B. shall well and truly keep and beai- harmless, and indemnify the said C. D., Sheriff as aforesaid, and all and every person and persons aiding and assisting •him in the premises, of and from all harm, let, trouble, damages, costs, suits, actions, judgments, and executions, that shall, or may, at any time arise, come, or be brought, against him, trirjm, or any BONDS. IST of them, as -well for the levying and making sale, under and by- virtue of such execution, of all or any goods and chattels which he or they shall or may judge to belong to the said E. R, as for entering any shop, store, building, or other premises, for the taking of any such goods and chattels, then this obligation to be void; else to remain in full force and virtue. [Sealed, The above form may be readily varied, if I may beaddedto warranS and defend tlie obli- tiie condition sliould be to procure an heir aL gee, in the quiet enjoyment of the prenuees. law to convey, when of age ; and a clause j until such conveyance be executed. '28 HEW CLERK'S ASSISTANT. § 216. Bond to discharge Bond and Mortgage. Know all men &c. : [as in § 205 to the condition, and then add:'\ Whereas tlie said C. D. and E. his wife, have this day conveyed tc the said A. B., by warranty deed, duly executed, and bearing even date herewith, the following described premises, to wit: aU, &c., [describe premises conveyed;"] subject, however, to the covenants and conditions contained in a certain indenture of mortgage, bearing date the day of > 18 , executed by the said C. D., and E., his wife, to 8. V. R, of the city and county of Albany, for the purpose of securing the payment of the sum of dollars, in five years from the day of the date thereof, with semi-annual interest, as covenanted to be paid by the conditions of a bond, of like date therewith, executed by the said C. D. to the said S. ,V. R., which said mortgage is a Ken upon the premises aforesaid, and was recorded in the office of the clerk of the county of , on the day of , 18 , at pages 21 V and 218 of book 0. of mortgages, at 10 o'clock A. M., and upon which there is now remaining due and unpaid, the said principal sum of dollars, with interest from the day of , last past : Now, therefore, the condition of the above obligation is such, that if the said A. B., his heirs, execu- tors, or administrators, shall well and truly pay, or cause to be paid, unto the said S. V. R, or his assigns, all such sum and sums of money as are, or may hereafter become due, on the said bond and mortgage, executed by the said C. D., and' the said C. D., and E., his wife, as aforesaid, and forever satisfy and discharge the same, saving the said C. D., his heirs, executors, and administrators, harm- less, of and from all and all manner of costs, charges, and expenses, in the premises, then the above obligation to be void ; else to remain in full force and virtue. Sealed, ifec, [as in § 205.] § 217. Bond of an Officer of a BanJc, or Company. Know all men, &c. : [ois in § 209 to the *, substituting the name of the bank for that of the company, if necessary, and then add:] Whereas the above bounden A. B. has been chosen and appointed cashier, [or, teller; or, treasurer, as the case may be,] of the Company; [or, bank;] by reason whereof divers siuns of money, goods and chattels, and other things, the property of the said com- pany, [or, bank,] wiU come into his hands : Now, therefore, the condition of the above obligation is such, that if the said A. B., liis executors, or administrators, at the expiration of his said office, upon request to him or them made, shall make or give unto the said com- pany, [or, bank,] or their agent, or attorney, a just and true account of all such sum or sums of money, goods and chattels, and other things, as have come into liis hands, charge, or possession, as cashier, lor, teller ; or, treasurer,] as aforesaid, and shall and do pay and BONDS. 120 deliver over, to Hs successor in office, or any other person duly au- thorized to receive the same, all such balances, or sums of money, goods and chattels, and other things, which shall appear to be in his iiaiuls, and due by liim to the said company; [or, ban'k;] and if the said A. B. shall well and truly, honestly and faithfidly, in all things, serve the said company, [or, bank,] in the capacity of cashier, [or, teller ; or, treasurer,] as aforesaid, during his continuance in office, then the above obligation to be void ; else to remain in full force and virtue. Sealed, &c., [as in § 205.] § 218. Bond of Indemnity to a Surety in a Bond. Know all men, &c. : [as m § 206 to the condition, and then addi] Whereas the said C. D., at the special instance and request of the above bounden A. B., has bound himself, together with the said A. B., unto one E. F., of, &c., in a certain obligation, bearing even date herewith, in the penal sum of one thousand dollars, lawful money of the United States, conditioned for the payment of the sum of five hundi-ed dollars, due and owing by the said A. B. to the said E. R, oh, &c. : [as in the bond; or, if a bail bond be referred to, say — y conditioned for the appearance of the said A. B., &c. ; or, conditioned that the said A. B. shall put in special bail, Lawa-of 1817, chap. 429. | " Laws of 1842, chap. 202. 134 HEW CLERK'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 Recognieances. 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 Bmimd to Answer. Hear ye, hear ye, hear ye : A. B., come forth and answer to your name, and save yourself and bail, or you will forfeit your recognizanca § 231. For Bail to Produce Principal. Hear ye, hear ye, hear ye : C. D. and E. F., bring forth A. B., your principal, whom you have undertaken to have here this day, or Vou will forfeit your recognizance. § 232. For Discharge of Persons against whom no Bills are fovmd.. 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 Sheriff of the county of , he is discharged. § 234. For Jury in a CivU Cause. Hear ye, hear ye, hear ye : You, good men, who are here empan- nelled and returned, to try this issue, joined between A. B., plaintiff, and C. D., defendant, answer to your names as you are called, and save your fines. § 235, For Defendant on an Inquest. C. D., come forth and make your challenges, or you wiU lose your challenges, and inquest will be taken against you by default. CLERKS AND CEIERS. 135 § 236. For Plaintiff to Appear and Prosecute. A. B., appear and prosecute your action, or yoiu- 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'clocl^ to which time these courts are adjourned. § 238. For Opening Court after Adjownment. 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 ^ve their attendance, and they shall be heard. § 239. Calling a Witness to answer on a Subpcena. 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 Fvidence. You do swear, that the evidence you shall give in this matter in dififcrence, between A B., plaintiff, and C. D., defendant, shall be the truth, the whole truth, and nothing but the truth. So help yov God." § 241. The Same, hy the Uplifted hand. You do swear, in the presence of the ever-living God, that» vice of a subpoena on E. R, 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 Party indicted, after reading Indictment Do you demand a trial on this indictment ? § 283. Taking Verdict on a Trial for Felony, or Murder. Gentlemen of the jury: Please answer to your names. \Call them one by onei\ Have you agreed upon your verdict ? \After the answer, say:"] Jurors, look upon the Prisoner. Who shall say for you? ^T he foreman rises.'\ How say you; do you find the prisoner at the bar guilty of the felony [and murder, if necessary,J whereof he stands indicted ; or not guilty? [The foreman answers: guilty; or, not guilty. Then the Olerk 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 aU. § 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 :2 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 jury, hearken to your verdict as the court has recorded it You say you find the prisoner at the bar* guilty of the felony [and murder, if necessary, "l 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.J 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, offence; or, crimej whereof he stands indicted; or not guilty? [The foreman answers: guilty; or, not guilty. Then the Clerk adds:^ Hearken to your vermct, gentlemen, as the court has recorded it. You say you find the prisoner at the bar guilty [or, not guilty] of the misdemeanor [or, assault and battery, and riot; or, riot; or, offence; or, crime] whereof he stirnds indicted* and so you say all CLERKS AND CRIERS. 140 § 286. Polling Jury in the Same. [Proceed as in § 284 to the * and then add:] gmlty 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. (Jentlemen of the jury: Please answer to your names. [Ccdl them one hy o««.] 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 continues i] Gentlemen, listen to your verdict as it stands recorded. You say yon find, &c., [as the finding may he/\ and so you say all. , • ■ § 288. Untry of Verdict. ^ Supreme Court, A. B. I County of . At a Circuit Court held against > held in and for said tounty, on the day C. D. ) of , 18 , before J. M., Esquire, Justice. JURORS. [Insert names."] WITNESSES. [Insert names.] Verdict for defendant, [or, verdict for plaintiff, damages $ ; or, verdict for plaintiff against defendant, C. D., damages $ , and verdict for the defendant E. F. ; [or, if it be a special verdict, insert the same at length.]* E. B. C, Clerk. § 289. .Entry of Verdict, with Assessment of Value of Personal Property. Supreme Court, A. B. 1 County of, &c., [as in the preceding form, to against > the *, and then add:] and the jury ass'.ss 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 doUara] E. B. C, Clerk. § 290. £ntry of Judgment. Supreme Court, A. B. ) Judgment, against ' V 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 tho 144 NEW CLERK'S ASSISTANT. plaintiff, that, <&c., [state the finding; or, if there was no jury, say: and the same having been submitted to the court, verdict was ren- dered, &c.] Now, on motion of G. H., attorney for the plaintiff, it is ordered and adjudged by the said court, that, &c., [cw the verdict may 6e.] E. B. 0., Clerk. § 291. Talcing Verdict where Personal Property is in Question. Gentlemen of, January 1, 1849. C. D. ) The above named parties, A. B. and C. D., having submitted the controversy between them without action, and a trial by the court being had thereon, the court decided [slate the decision.] Now, on motion of G. H., attorney of the said A. B., it is hereby adjudged, &c., [as the decision may be.] E. B C, Clerk of said County of § 298. Confession of Judgmetvt without Action.^ County ss: I, A. B., of the town of , in said county, hereby confess myself indebted to C. D., of .the same place, [or, as the case may be,] in the sum of , and authorize the said C. J) , or his execu- tors, administrators, or assigns, to enter a judgment a;gainst me, in the Supreme Court of the State of New York, for that amount* The said sum of money is due on a promissory note, made by me, and dated the day of, &c., [describe the note, or set forth in detail, the origin or cause of the indebtedness^ 1 See Lawsori849, chap, 43&— Pari II., Title xii., chap. 3. G 146 NEW CLERK'S ASSISTAHT. And I liercby state, that the sum by me above confessed is justly due [or, will justly become due] to the said C. D., in pursuance of the facts above set forth. A.B. Dated the day of , 18 . § 299. Affidavit to verify Oonfession, and to he annexed thereto. In Supreme Court, ) County, j A. B., above named and described, being duly sworn, says, that the above statement, by him signed, is true. Sworn to, this day of ) .18 , before me, J A. B. G. H., County Clerk [Or any officer authorized to administer oathsJ] § 300. Confession to secure against a Contingent Liability. County, ss: I, A. B., oi, &e., \as in § 298 to the *, and then add:^ The following is a statement of the facts showing a contingent La- bility of the said C. D., for me, the said A. B., and to secure him against which, the above confession is made, viz: [set forth the facts in detail^ And I hereby state, that the sum above confessed does not exceed the liability incurred by the said C. D., under the circumstances above described. Dated, &c., [conclude, as in § 298, and append the affidavit of verification, (§ 299.)] § 301. Entry of Judgment on Confession. In Supreme Court, C. D. ) Judgment, against > January 1, 1849. A. B. 3 The above named A. B., having confessed a judgment to the above named C. D., for the sum of dollars, it is hereby adjudged, that the said C. D. recover against the said A B. the sum of dollars, aforesaid, with five dollars costs. E. B. C, Clerk § 302. ClerVs Certificate of filing Notice of Lis Pendens. StateofNew York, ) g. County, j I, E. B. C, Clerk of the said comity, do hereby certify, that a CLERKS AND CRIEES. 147 aotice, of which the above [or, within] is a copy, was nled in the clerk's office of said county, on the day of , 18 . Dated the day of , 18 . E. B. C. § 303. Certificate of Authentication to the Achnowledgment, or Proof, of a Conveyance. State of New York, ) County, P®- I, L. M., Clerk of the said county, do certify, that G. H., the person subscribmg the within [or, annexed] certificate of acknow- ledgment, [or, proof,] was, at the date thereof, a Justice of the Peace of said county, and duly authorized to take acknowledgments and proofs of conveyances, to be recorded in this State ; and that I am well acquainted with the handwriting of the said G. H., and verily believe that the name G. H., subscribed to the said certificate,' is his proper and genuiae signature. In testimony whereof, I have caused the seal of the County [l. s.] Court of said county to be hereunto affixed, this day of , 18 . L. K § 304. Certificate of Official Character. StateofNew York,) g. County, j I, L M., Clerk of the said county, do hereby certify, that G. H., the person subscribing the foregoing deposition, [or whatever the instrument may 6e,] and before whom the same was taken, [or, acknowledged,] was, on the day of , 18 , therein men- tioned, the Judge of County Court, [or, as the case may Se,] a court of record of the said county of ; [or, as the proper tide of the officer may he; and then add the clavse in relation to the c/ehuineness of the signature, if necessary.^ [l. 8.] In testimony whereof , August ,18 , at A. M. C. D. ) R. F., Attorney. State of New York, County, "( Clerk's Office, August ,18 . [ I certify, that the preceding is a true copy of the docket of an original record of judgment remaining on the files of this office. L. M., Clerk. 148 NEW CLERK'S ASSISTANT. § 306. Certificate to Copy of a Mecord, or Paper, on File in th« Clerk's Office. State of New York, County, ) . , . 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.] [i» s7] In testimony whereof, &c., [as in § 303.] § 307. Clerk's Certificaie on Transcript t^ Jvdgraent lefore Justice of the Pea^x. 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, substituting transcript for certificate.] CHAPTER XII. COMEIMCES BY DEED AND lOETGAGE. PRACTICAL REMARKS. 1. AH instruments under seal are deeds ; but the term ' deed,' is generally understood as applying to conveyances of land. 2. Every person capable of holding 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, 1776, with the Indians residing in the State, is valid, unless made under 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 eflfect 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 concerning 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 U. S. (3d ed.) 3, § 10. I son, 285; 1 1 Wendell. 240; 2 Hill, 659; 1 Bar- » 2 R. S. (3d ed.) 3, § 11. hour's S. C. Rep., 500. 2 R S. (3d ed.) 22, §§ 137, 138; 13 John- | 150 • ' NEW CLERK'S ASSISTANT. grantiiig, assigning, surrendering, or declaring, the same, or by his 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 all the estate or interest of the grantor, unless the intent to pass a less estate or interest appears, by express terms, or is neoe.ssarily implied in the terms of the gTant' 8. No covenant can be impHed 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 wiU be deemed grants, and, as such, subject to the provi- sions of law concerning grants.* 9. No greater estate or interest will be construed to pass by any conve)'ance, than the grantor himself possessed at the deUvery of the deed, or could then lawfully convey, except that every grant is con- clusive 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 grantor; 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, will 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.' 1 1. Where the grantor in a deed has no title to the premises con- veyed, 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, illegal, or fraudulent 12 R. S. (3d ed.) 194, 5 6; 6 Wendell, 461; 10 Id., 436; 13 Id,, 481; 16 Id., 25, 28; 2 Hill, 485. > 1 Denio. 660. s 2 R. S. (3d ed.) 33, § I. 4 2 R. S. (3d ed.) 22, §§ 140, 142; 14 Wen- dell, 38; 8 Paige, 693 5 2 R. S. (3d ed.) 23. §§ 143, 144. e 2 R. S. (3d ed.) 23, §§ 147, 148; 7" Wen- deU,377; 9Id., 616; 16 Id., 164; 21 Id , !»: 3 Hill,526. 7 2 Barbour's S. C. Rep,, 300. CONYETAKCES BY DEED AND MORTGAGE. 151 Eveiy 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 valwi- hle consideration is founded on something deemed valuable, as money, goods, services, or marriage. An equitable liability is sufficient ta uphold 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 mquired 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 course and distance cannot be reconciled, the one or the other may be prefen-ed, 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 mtent of the parties, so far as such intent can be coUected 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 sufficient, provided it appear that the seal aflSxed was 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 nietes and bounds, if the descrip- tion contains positive lang-uage as to quantity, it is to be regarded sa 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 a. S. (3d ed.) 193, §§ 1, 2; 2HiU, 659; 7 Id., •£ii\ 1 Denio, 520. » I Johnson, 139: 4Id., 23: 16 Id. 47; 4 Cow- en, 430; 9lQ.,69; 9 Wendell, 611; 16 Id., 460; Denio, 22b 2 Barbour's Ch. Rep., 232. 3 4 Kent's Commentariea (2d ed.) 466; 3 Barbour's S. C. Rep., 215. 4 2 R. S. (3d ed.) 33, 5 2; 2 Barbour's S. C Rep. 229: I Comstock, 96. » 2 Hill, 641. " 4 Hill, 351. ' 1 Comstock, 305. 8 3 Barbour's S. 0. Rep., 3S3. B 1 Comstock, 609. ir>2 KEW CLERK'S ASSISTANT. 21. No mortgage ■will be construed as implying a covenant foi the payment of the sum liitended to be secured ; and where there is nt express covenant for such - payment contained in the mortgage, and no bond or other separate instrument given, the remedies of the mortgagee will be confined to the lands mentioned in the mortgage.' 22. The wife 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 detd 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 bar 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 recorded at the same time, it will be presumed 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 will 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, imd the vendee wiU acquire only the equity of redemption.' 28. Where lands are mortgaged, and a part thereof subsequently sold by the mortgagee, the part remaining imsold 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 niortgaged 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 n >tice 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 mvived." ' 2 R. S. (3d eil.,) 22, 5 139. a 1 Barbour's S. C. Bep., 399: 4 Id., 407; Id., 546. ' 1 Barbour's S. C. Rop., 399. 4 2 Barbour's S. C. Rep., 28. » 3 Dsnio, 232; 2 Barbour's Ch. Rep., 119; S Barbour's S. C. Rep,, 805. • 2 Comstock, 360. ' 3 Barbour's S. G. Rep,, 12S. ' 2 Comstock, 289. 9 3 Barbour's S. C. Rep., 128. >o 2 Barbour's Ch. Rsp., 82. '» 1 Barbour's S. C. Rep., 392. CONVEYANCES BY DEED 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 maMng the sale.' 38. Two witnesses are required at the execution of a deed, in I^ew Hampshire, .Vermont^ Rhode Island, Connecticut, Pennsylvania, Georgia, Ohio, Indiana, Illinois, Michigan, and Wisconsin. In Dela- ware, Tennessee, and North Carolina, two witnesses are reqiured where a deed is to be proved by witnesses. In the other States, one witness is sufficient to render a deed vaJid, 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 pubUcation 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 county 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 jud^ent 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 1 2 R. S. (3d ed.) 467, § 44; 20 Wendell, | S2 E. 8. (8d cd.) 682, §§ 1, 2; T Wendell, «6: 7 Hill, 476, 616. 458; 4 Pstge, 58; 7 Id, 257. I S2E. S. (3dea.)682, 8; §§8,4; IHili, la. 154 NEW CLERK'S ASSISTANT. the time specified therein for the sale, in the post office, proferlj folded and directed to said person at his place of residence.' 37. The sale of the mortgaged premises may be postponed from time to time, by inserting a notice thereof, as soon as practicable, in the newspaper in which the original advertisement was published, 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 lien 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 afiSdavit of the facts and circumstances of the sale must be made by the person who officiated as auctioneer ; an affidavit of the publication of the notice, by the printer of the newspaper iu wliich the same was inserted, or his foreman; and an affidavit of affixing the notice, and, also, an affidavit of serving 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 tide.' 41. The purchaser of lands, on foreclosure and sale under a mort- gage, is entitied to the growing crops sown by the mortgagor." \ ■ 2 R. S. (3d ed.,) 632, 5 3 ; Laws of 1842, I chap. 27/: Laws of 1844, chap. 346. a 2 E. S. f3d ed.,) 633, 5 6 : 4 Denio, 104. ■■> 2 R. S. (3d ed.,) 633, §§ 6, 7 ; 4 Oowen, 26^. ; 1 Paige, 62. 4 2 R. S. (3d ed.,) 633, § 8 ; 10 Johnson, 186 j 4 Paige, 58, 631 ; 1 Hill, 107 ; 6 Id., 65 « 2 R. S. (3d ed.,) 634, §5 9-U : 4 Denlo, 41 . e 2 Denio, 174. CONVEYANCES BY DEED AND MORTGAGE. 155 FOEMS. § 308. Simph Deed. 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 • President of th 8 Bank of G. H. § 317. Deed of Mortgaged Premises, on Foreclosure by Advertisement. This indenture, made the day of , in the year of our Lord one thousand eight hundred and , between C. D., o^ (fee, of the first part, and E. F., of, &c., of the second part : Whereas, A. B., by a certain indenture of mortgage, bearing date the day of , one thousand eight hundred and ' , for the consideration of the sum of dollars, did bargain, sell and con- vey, unto C. D., his heirs and assigns, forever, all that certain piece or parcel of land, hereinafter particularly described, with the appur- tenances, subject to a proviso, in the said indenture of mortgage contained, that the same should be void on the payment, by the said C. I>., his heirs, executors, administrators, or assigns, of the sum of dollars, in the manner particularly specified in the condition of a certain bond or obligation, bearing even date with the said inden- ture of mortgage : with a special power in the said indenture of mort- gage contained, authorizing the said C. D., his heirs, executors, administrators, or assigns, if default should be made in the payment of the said sum of money mentioned in the condition of the said bond or obligation, with the interest, or of any part thereof, to sell and dispose of the mortgaged premises, or any part thereof, at piAKc auction ; and to make and deliver (o the purchaser, or purchasers, thereof good and suflScient deed, or deeds, of conveyance in the law, for the same, in fee simple : And, whereas, the said indenture of mort- gage has been duly recorded according to law, as by the said indenture of mortgage, and the record thereof, and of the power therein contain- ed, reference being thereunto had, may more fully and at large ap- pear: [If necessary, say: and the same hath been duly assigned to the party of the first part, by the said C. D., as by the record of the said assignment, &o., as above :'[ And whereas, default having been made in the payment of the money intended to be secured by the said indenture of mortgage, the mortgaged premises hereinafter par- ticularly described, were, on the day of , one thousand eight hundred and , sold at public auction, to the said party of the second part, for the sum of dollars, being the highest sum bid for the same, pubUc notice having been previously given of such sale, by advertisement, inserted and published for twelve weeks, once la each week, successively, in a public newspaper, entitled the , printed in the town of , m the county in wliich the mortgaged CONTEYAKCES BY DEED AND MORTGAGE. 101 premises are situated, a copy of whicli advertisement was, fo\ twelve weeks prior to the time therein specified for such sale, duly affixed on the outward door of the court house in the town of , being the building inwliich the county courts are directed to be held; and the said party of the first part, having caused a copy of said printed notice, or advertisemeht, to be duly served on all persons having any claim upon the said premises, as required by the act passed May 1th, 1844. Now, therefore, this indenture witnesseth: that the party of the first pai't, for and in consideration of the sum so bid, as aforesaid; to liim in hand paid by the said party of the second part, at the time of the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, re- leased and confirmed, and by these presents doth grant, bargain, sell, alien, release and confirm, unto the said party of the second part, and to his heirs and assigns, forever, all [^description ;~\ together with all and singular, the tenements, hereditaments, and appurtenances, thereunto belonging, or in any wise appertaining, as the same is des cribed and conveyed, in and by the said indenture of mortgage ; and also, all the estate, right, title, interest, property, claim and demand, whatsoever, both in law and equity, of the said A. B., as well as of the said party of the first part, of, in and to, the above described premises, with the appurtenances, as fuUy, to all intents and purposes, as the said party of the first part hath power and authority to grant and sell the sanie, by virtue of the said indenture of mortgage, and of the statute in such case made and provided, or otherwise: To have and to hold the said above mentioned and described premises, with their and every of their appurtenances, unto the said party of the second part, his heirs and assigns, to the sole and only proper use, benefit and behoof, of the said party of the second part, his heirs and assigns, forever. In witness, &c., [as in § 308.] § 318. Dee^hy Ouardian. To all persons to whom these presents shall come : E. R, of , cniardian of C. B. and E. B., minors, and children of A. B., late of said , deceased, sends greeting : Whereas, by an order of the Probate Court, holden at , within and for the county of , on the day of- , in the year , the said E. F., in liis capacity of guardian, as aforesaid, was empowered and hcensed to make sale of the whole of the said minors' interest, being one undivided twelfth part each, in the real estate hereinafter de- scribed ; and whereas, the said E. F. having given the bond, and taken the oath by law required, before fixing on the time and place of sale, and also given public notice of the said sale, by causing a no- tification thereof to be inserted and printed weeks, successively m the newspaper called , printed at , did, the n 162 -KEW CLERK'S ASSISTANT. day of • , in the year , cause the said minors' interest to be exposed tor sale, pursuant to the said notice, at public vendue, on the premises, and the same was then and there struck off to S. T., of, 4 HEW CLERK'S ASSISTANT. In testimony whereof, the said parties of the first part have here- unto set their hands and seals, &c., [as in § 808.] * § 321. Deed of Commissioners in Partition. This indenture, made, &c., between A. B., C. D., and E. R, al) of, (fee., commissioners in partition, duly appointed as hereinafter men- tioned, of the first part, and L. M., of, &c., of the second part: Whereas, S. T., and R T., of, &c., in the town of , in the year one thousand eight hundred and , did exhibit to the County Court of the county of , a petition for a division and partition of certain premises therein mentioned, according to the respective rights of the parties interested therein, and for a sale of such premises, if it should appear that a partition thereof could not be made without great prejudice to the owners, pursuant to the statute relating to the partition of lands owned by several persons; in which petition it was, amongst other tilings, set forth, that the said petitioners, \state names of parties and their respective interests, as in the petition/] All which, together with the respective interests of each of the said parties in and to the said premises, will more fully appear from the said petition, now on file in the office of the clerk of the said coizrt ; and whereas, such proceedings were thereupon had, in the said court, that judgment was duly rendered, that partition of the said premises should be made according to the several rights and interests of the said par- ties : And thereupon, to make such pai-tition, the parties of the first part to these presents being qualified, were by the said court ap- pointed commissioners : And whereas, such proceedings were after- wards had in the said covrt upon the said petition, that the said com- missioners, so appointed, as aforesaid, were, by a rule of said court, ordered and directed to sell the said premises, with the appurtenances, at public auction, to the highest bidder; giving notice, according to law, of the time and place of such sale ; and that they should make report thereof to the said court, as by the records of the said cour; does more fuUy and at large appear. And whereas, the said com- missioners, pursuaat to the said order and direction, after giving pub- lie notice of the time and place of such sale, did, on the day of , 18 , at the town of , in said county of , expose to sale at public auction, all and singular the said premises, with the appurtenances ; at which sale the said premises, [or, a part of the said premises,] as follows, viz : all [description,] were sold to the said party of the second part, for the sum of dollars, that being the highest sum bid for the same : And whereas, the proceed- ings of the said commissioners in the premises were duly reported to the said court, and the sale approved and confirmed, on the day of , one thousand eight himdred and , as by the records of the said court more fully appears; and the said commissioners CONVEYAKCES BY DEED AND MORTGAGE. 105 were thereupon, by the said court, directed to execute to the said party of the second part, a conveyance of said premises, pursuant to the sale so made as aforesaid. Now this indenture witnesseth : that the said parties of the first part, pursuant to the direction and authority to them given, and for and in consideration of the sum of money so bid as aforesaid, to them in hand paid by the said party of the second part, at or before the ensealing and delivery of these presents, the receipt whereof is hereby acknowledged, have bargained, sold, aliened, conveyed and confirmed, and by these presents do bar- gain, seD, alien, convey and confirm, unto the said party of the second part, all the estate, right, title, interest, claim and demand, of the said parties of the first part, and also all the right, title, interest, claim and demand, of all and singular, the several and respective parties to the proceeding's in partition aforesaid, of, in and to, all and singular the said premises above particularly described as purchased by the said party of the second part; together with all and singular the hereditaments and appurtenances, to the same belonging, or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues, and profits thereof, and of every part thereof: To have and to hold the said above bargained premises, with the ap- purtenances, and every part thereof, tmto the said party of the second part, his heirs and assigns, to his and their only proper use and behoot forever, in as full and ample a manner, as the said parties of the fiirst part ought to do, pursuant to the statute and the authority as aforesaid. In witness whereof, the said parties have hereunto interchangeably set their hands and seals, the day and year first above written. Sealed and delivered, ) - - in presence of >■ G. H. ) A. B. L. S.' C. D. L. s.' E. F. L. s.] L. M. L. s.' § 322. Deed with Trust Habendvm Clause. This iadenture, made, &c., [as in § 808, or § 312, to the *, and then add:"] To have and to hold all and singular the said hereinbe- fore granted and described premises, with the appurtenances, unto the said C. D., upon the trusts, nevertheless, and to and for the uses, interests and purposes, hereinafter hmited, described and declared ; that is to say, upon trust to receive the issues, rents and profits, of the said premises, and apply the same to the use of !^. F., during the term of his natural life, and, after the deatli of the said E. F., to convey the same by deed, to G. H. in fee. In witness, &c., [as in § 308.] A^ B. [l. a.] )G6 NEW CLERK'S ASSISTANT. § 323. Deed hy Trustees of an Absconding Debtor. To all to -wrhom these presents shall (Some : We, A. B., C. D. and E. R, of the county of , and State of New York, Trustees of the estate of G. H., an absconding debtor, late of , in the said county, send greeting : Whereas, by an order of J. P. H., Esquire, County Judge of said county of , an attachment was issued against the estate, both real and personal, of the said G. H., on the day of , 18 , directed to the Sheriif of the said county of , who, by virtue of the same, attached all the property, both real and per- sonal, of the said G. H. in the county of ; and due notice of said attachment having been published for the time, and in the manner, required by the statute in such case piade and provided, afterwards, to wit, on the day of , 18 , by order of J. P. H., Esquire, aforesaid, we, the said A. B., C. D. and E. F., were duly appointed Trustees of the estate of the said G. H., and for all his creditors, with such powers concerning the estate, real and personal, of the said G. H., as are given by statute in case of an absconding debtor : and we did on that day each of us take the oath required by statute, for the faithful discharge of the trust reposed in us as Trus- tees, and cause notice cf our appointment to be published, according to law: and whereas, we, the said A. B., C. D. and E. R, having given public notice of the intended sale, by causing notice thereof to be printed and inserted two weeks, successively, in the , a newspaper printed in the said county of , and having caused notice of the same to be posted up in four public places, in said county, we did, on the day of ,18, pursuant to the issuing of said attachment, the appointment and notice.aforesaid, sell by public auction, the real estate of the said G. H., hereinafter de- scribed, to L. M., of , for the sum of dollars; he being the highest bidder therefor, and that being the highest sum bid for the same. Now, therefore, know ye, that we, the said A. B., C. D. and E. F., by virtue of the power and authority in us vested, as aforesaid, and in consideration of the aforesaid sum of dollars to us paid by the said L. M., the receipt whereof is hereby acknowledged, do hereby grant, bargain, sell and convey, unto the said L. M., his heirs and assigns, all the interest which the said G. H. had on the day of , 18 , [insert the day on which the attachment issued^ to all that certain piece or parcel of land, &c., [describe the premises ;] To have and to hold the above granted and described premises to the said L. M., his heirs and assigns, forever. In testimony whereof &c , \as in § 320.] CONVEYANCES BY DEED AND MORTGAGE. 167 § 3-'?4. Sheriff's Certificate of the Sale of Real Estate, on an Execution. Supreme Court, A. B. ^ I, A. P., Sheriff of tte county of , do against > hereby certify, that by virtue of an execution in the E. D. ) above cause, tested the day of , in the year , by which I was commanded to make, of the goods and chattels of E. D., in my bailiwick, dollars, which A. B. had recovered agmnst him in the said court, for his damages, which he had sustained, as well by reason of the not performing certain pro- mises, [or, for the detention of a certain debt; or, as the cause of action may 5«,] as for his costs and charges; and if sufficient goods and chattels could not be found, that then I should cause the said damages to be made of the real estate which the said E. D. had, on the day of , in the year , or at any time after- wai'ds, in whose hands soever the same might be ; as by the said writ of execution, reference being thereunto had, more fuUy appears : I have levied on, and this day sold, at public auction, according to the statute in such case made and provided, to E. R, who was the •highest bidder, for the sum of dollars, which was the whole consideration of such sale, the real estate described as follows, to wit: all [description i] And that the sale will become absolute at the expiration of fifteen calendar months from this day, to wit, on the day of , A. D. 18 , and E. R, or his assigns, be en- titied to a conveyance, pursuant to law, unless the said lands shall be redeemed. Given under my hand, this first day of ,18 A P., Sheriff of the County of § 325. Affidavit to Entitle a Creditor to Redeem, to be Endorsed on a Certified Copy of the Docket of his Judgment State of New York,) ^g. County, I" L. M„ [or, S. T., attorney, or, agent, of L. M.,] a judgment credi- tor of C. D., named in the copy of the docket of judgment hereunto annexed, being duly sworn, says, that the true sum due on said judg- ment, at the time of claiming the right to acquire the title of E. R, the original purchaser at the Sheriff's sale of the real estate of C. D., is dollars and cents. Sworn to, this day of , ) L. M. A D. 18 , before me, ) G. H., Justice of the Peace. 168 NEW CLERK'S ASSISTANT. § 326. Sheriff's Deed, where Land is Sold wider an Execution Tliis indenture, made, &c., between A. P., Esquire, Sheriff, [or. late Sheriflf,] of the county of , of the first part, and E. F., of, &c., of the second part: Whereas, by virtue of a certain execution issued out of and under the seal of the Supreme Court of the State of New York, tested the day of , in the year 18 , at the suit of A. B., plaintiflF, against C. D., defendant, directed and de- livered to the said Sheriff, commanding him that of the goods and chattels of the said defendant, he should cause to be made certain moneys, in the said writ specified, and if sufficient goods and chat- tels could not be found, that then he should cause the amount so specified to be made of the real estate which the said defendant had on a day in the said writ mentioned, or at any time afterwards, in whose hands soever the same might be, the said Sheriff did levy on and seize, all the estate, right, tiSe and interest, which the said de- fendant so had, of, in and to, the premises hereinafter conveyed and described ; and on the day of , one thousand eight hun- dred and ' , sold the said premises at public vendue, at the house of , in the town of , in the said county ; having fiirst given public notice of the time and place of such sale, by advertis- ing the same according to law ; at which sale the said premises were struck off to E. F., for the sum of dollars, he being the highest bidder, and that being the highest sum bidden for the same.* And whereas, the said premises, after the expiration of fifteen months from the time of said sale, remained unredeemed, and no creditor of the said C. D. hath acquired the right and title of the said purchaser, according to the statute in such case made and provided.* [If the deed is given to a redeeming creditor, substitute the name of such cre- ditor for E. F., as aforesaid, and instead of the words between the two *s, say: And whereas, the said premises, after the expiration of one year from the time of said sale, remained unredeemed, by any person entitled to make such redemption within that time ; and where- as, L. M., a creditor of the said 0. D., having in his own name [or, as assignee; or, representative; or, trustee] a judgment in the Su- preme Court, &c., against the said C. D., for the sum of dol- lars, in an action of , rendered before the expiration of fifteen months from the time of such sale, and which ts a Ken and charge on the premises so sold, hath acquired aUthe rights of the said E. F., the original purchaser to said premises, within the time, and in the mBnner and form prescribed by the statute in such case made and provided ; and no other creditor of the said C. D. hath acquired the said lights from or against the said E. F.] Now this indenture wit- nesseth : that the said party of the first part, by virtue of the said writ, an-l in pursuance of the act in such case made and provided, and in consideration of the sum of money so bidden as aforesaid, to him duly paid, hath soH and by these presents doth grant and con- CONTETANCES BY DEED AND MORTGAGE. 160 vey, unto the said party of the second part, all the estate, right, titl<' and mterest, which the said defendant had on the said day of , one thousand eight hundred and , or at any time afterwards, of, m and to, all [description:] To have and to hold the said above mentioned premises, unto the said party of the second part, his heks and assigns, forever, as fully and absolutely as the said party of the first part, as Sheriff aforesaid, can, or ought to, by virtue of the said writ and the law relating thereto. In witness whereof, the said Sheriff has, &o., [as in § 308.] § 327. Sheriff's Deed in Partition, where Sale is Ordered.' This indenture, made, &c., between A. P., Esquire, Sheriff of the county of , in the State of New York, of the first part, and C. D., of, (fee, of the second part : Whereas, in and by a certain de- cree, made at a County Court held at the town of , in and for said county, before J. P. H., Esquire, County Judge, on the day of , one thousand eight hundred and , in a certain cause there pending in the said court, between E. B., complainant, and A. B., C. B., and D. B., defendants, it was, among other things, ordered, adjudged and decreed,* that the said Sheriff do sell, in such separate parcels as he shaU deem most for the benefit of the said parlies, according to the rules and practice of the said court, and according to the statute in such case made and provided, all and sing-ular the several pieces or parcels of land and premises therein mentioned, whereof partition is sought by the complainant's bin of complaint filed in the above cause, at public auction, at the town of , in the said coimty of , after giving six week's pre\ious notice of the time and place of such sale, in one of the public newspapers published in the said county of , and in such other manner as required by law ; that the said Sheriflf, after such sale, make report thereof to the said court; and after such re- port of sale shaU'have been duly confirmed, and the said decree shall have been enrolled, that the said Sheriff execute and deliver deeds of conveyance for the said premises, in fee simple, to the purchasers thereof, at the said sale ; and whereas, the said Sheriff, in pursuance of said decree, and having given due notice of the time and place of sale, agreeably to the said decree, did, on the day of , A. D. 18 , sell at public auction, at the town of , afore- said, the premises in the said decree mentione d ; at which sale, the premises hereinafter described, were struck off and sold, to the said party of the second part, for the sum of dollars, that being the highest sum bidden for the same; and such sale having been reported by the said Sheriff to the said court, and duly confirmed, 1 Sheriffs may sell any lands in llieir ves- pective counties, ordered to be sold by a deciee of any court of record, and give con- veyances thereof, in tire same manner, and with like eflect, as was formerly done by a Master m Chancery, (Laws of 1S47, chap. 280, art, VI., § 7/) The Sheriff receives his disbursements for priming, and fees for selling. See, cllapter XVIll '70 NE^ CLERK'S ASSISTANT. and the said decree having been also enrolled : Now this indonture ■witnesseth : that the said Sheriff, in order to carry into effect the sale so made by him, as aforesaid, in pursuance of the said decree of the said court, and in conformity to the statute in such case made and provided, and also in consideration of the premises, and of the said sum of money so bidden, as aforesaid, heing first duly paid to him by tlie said party of the second part, the receipt whereof is hereby ack- nowledged, hath granted, bargained, sold and conveyed, and by th ise presente doth grant, bargain, sell and convey, unto the said party of the second part, his heirs and assigns, forever, all [description.-] To have and to hold all and singular the premises above mentioned and described, and hereby conveyed, or intended to be, unto the said party of the second part, his heirs and assigns, to his and their own proper use, benefit and behoof, forever. In witness whereof, the said Sheriff has, &c., [as in § 808.] § 328. Sheriff's Deed on Foredoswe. This indenture, &c. : [as in § 327 to the *, and then add:'] That all and singular the mortgaged premises mentioned in the com- plaint in said cause, and in said decree described, or so much thereof as might be sufficient to raise the amount due to the complainant, for principal, interest, and costs, in said cause, and which might be sold separately, without material injury to the parties interested, be sold at public auction, according to the course and practice of this court, and under the direction of the said Sheriff, party of the first part; that the said sale be made on the day of , then next, at o'clock in the forenoon of that day, at the court house in the town of , in the county of , aforesaid ; that the said Sheriff give pubhc notice of the time and place of such sale, accord- ing to the course and practice of said court, and that any of the par- ties in said cause might become a purchaser, or purchasers, on such sale ; that the said Sheriff execute to the purchaser, or purchasers, of the said mortgaged premises, or such part or parts thereof as should be sold, a good and sufficient deed, or deeds, of conveyance, for the same ; and whereas the said Sheriff, in pursuance of the order and decree of the said court, did, on the said day of , A. D. 18 , sell at public auction, at the court house in the town of , aforesaid, the premises in the said order mentioned, due notice of the time and place of such sale being fii-st given, agreeably to the said order ; at which sale, the premises hereinafter described were struck off to the said party of the second part, for the sum of dollars, that being the highest sum bidden for the same. Now this indenture witnesseth: [as m § 327 to the end? CONVEYANCES BY DEED AND MORTGAGE. 171 § 329. Deed of Bight of Way. This indenture, made, &c., between A. B., of, &c., of the fii-sv part, and C. D., of, &c., of the second part : Whereas the said party of the second part hath this day granted, sold, and conveyed unto the said party of die first part, his heirs and assigns, by warranty deed, executed by the party of the second part to the party of the first part, and bearing even date herewith, a certain piece or parcel of land, described in said deed, as follows, to. wit:, all [description:] And- whereas the said party of the second part is still owned and possessed of certain lands lying in the rear of the above described premises : Now, therefore, this indenture witnesseth : that the said party of the first part, in consideration* of the grant, sale, and conveyance, as aforesaid, and* of the sum of dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby ack- nowledged, doth hereby grant, bargain, sell, and confirm, unto the said party of the second part, and to his heirs and assigns, forever, a right of way in and over a certain strip of land on the east side of the dwelling house on the above described premises, conveyed to the party of the first part, as aforesaid, for the said party of the second part, his heirs and assigns, and his and their servants and tenants, at aU times freely to pass and repass, on foot» or with horses, oxen, cat- tle, beasts of burden, wagons, carts, sleighs, or other vehicle or car- riage whatsoever, from the highway to the lands of the said party of the second part, as aforesaid, and from the said lands of the party of the second part to the highway, as aforesaid, the said certain strip of land being of the width of two rods, and running from the south boundary of the premises above conveyed to the party of tlie first part, to the said lands belonging to the party of the second part, situate in the rear thereof, and the said way is, and shall be, forever, of the dimensions of the said strip of land, as aforesaid : To have and to hold the said easement and privilege to the said party of the second part, his heirs and assigns, forever, as appurtenances belonging to his and their lands, as aforesaid. [If necessary, insert covenants of seizin, warranty, etc.] In witness, &c., [as in § 308.] ' § 330. Deed of a Water Course. This indenture, made, &c., between A. B., of, &c., of the first pan, and C. D., o^ (fee, of the second part : Whereas the said parties, at the time of the sealing and dehvery of these presents, are respectively seized in fee, of and in two contiguous tracts, pieces, or parcels, of > Tfthe right of way is granted foramoney I line, to Indenture^ in tlie tenth line ; ai*j al3(j| consideration solely, omit the words in the those between the two "s. foregoing form, from Whereas, in the second I l^a KEW CLERK'S ASSISTANT. land, with the appurtenances, in the town of , aforesaid', and whereas there is a dam and race, or water course, erected and made in and upon a certain stream of water known a*. ' , within the land of the said party of the first part, for the purpose of furnishing water for a flouring miU, erected on the land of the said party of the first part, and owned by him: Now, therefore, this indenture witness- eth : that the party of the first part, for and in consideration of the sum of dollars, to him in hand paid by the party of the second part, at or before the sealing and dehvery hereof, (the receipt whereof he does hereby acknowledge,) has granted, bargained, sold, released, and confirmed, and by these presents does .grant, bargain, sell, release, and confirm, unto the said party of the second part, his heirs and assigns, all the water of the said stream of water, which may or can be led and conveyed from the easterly side of the said dam, in a race, or flume, to be constructed at the cost, charge, and expense of the party of the second part, four feet in width, and four feet in depth, measuring from the surface of the embankment forming the said dam: To have and to hold all and singular the said easement, &c., [ns in § 329.] § 331. Deed of Confirmation. This indenture, made, &c., between A. B., of, &c., of the first pai-t^ and C. D., of, Amended Conslitulion of New York, I a 2 R. S» (3d cd.,) 638, C39, 6S 109-1)6 > Art. I., 4 i i Laws of 1847, chan. 240. Id., 621, S 67. I 8 2 K. k (3d ed. ,) 639, 640, §5 117-120. CORONERS- 189 more, of the jury appear, they are to be sworn by the Coroner. He has the power to issue subpoenas for witnesses, returnable forthwith, or at such time and place as he shall appomt; and it is his duty to cause some surgeon, or physician, to be subpoenaed to appear as a witness on the mquest 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 thp testimony, are to dehver to the Coroner their ^quisition in writing, signed by them; in which they must state all ae 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 wliich 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 tetimony 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 ofiBce of such Coroner, in regard to the holding of inquests.' 7. 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 all money or other valuable things, found, as afore- said, and of the disposition of the same.' 2R. S. (3ded.) 827, §§ 1—4; Laws of 1847, chap. 118. 2 2 R. S. (3d ed.) 827, 828, 55 5-8 ; 24 Wendell, £20. s 2R. S. f3ded.) 828,59. « 2R. S. (3d ed.) 869, 5 100. » Laws of 1842, chap. IBB. 190 NEW CLERK'S ASSISTANT. FOEMS. § 354. Oath to be Administered to the Foreman of a Voroner'a 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 6e,] came to his death, [or, was wounded,] and who sueh person was, and into all the circumstances attending such death, \or, wounding,] and by whom the same was produced, and that jou 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, yov, and each of you, do now take, and shaU. well and truly observe and keep, on your 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 truth. So help you God. § 357. Inquisition of Mwrder. State of New York, ) County, J An inquisition taken 'for the people of the State of New York, at the house of R 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 lawM 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. D., [or, person unknown,] and by whom the same was produced; and in what manner; and whijn and where the said C. D. [or, person unknown] came to his death, do say, upon their oaths, as afcresaid, that* one 0. P., of [or, late of] the town of , in the county of , aforesaid, [or, as the case may he,\ on the day of , in the year 18 , at o'clock in the afternoon of that day, vrith force and arms, 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 C. D., [or, person un- known,] then and there present r and that the aforesaid 0. P„ then and there, with a certain sword made of iron and steel, [or, with a certain instrument made of, &c., to them unknown; or, as the case may be,j which he, the said 0. P., then and there held in his right hand, Tiolentiy, feloniously, and of his malice aforethought, mflicted a mortal wound, [or, wounds] upon the left breast [or, as the case may be] 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 feloniously kill and murder the said C. D., against the peace of the people of this State, and 'then- dig-nity. [If 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 be,] at the lime 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 the day of the date of this inquisition, as aforesMd. Q. A. E. L. H., Coroner. L. S." B. L. S.' F. L. S.' K 'l. S.' .&c. § 358. Inquisition where Murderer is Unknown. State of New York, ) County, ) An inquisition, &c. ; [as in § 357 to the *, and then, continue as follows:] a certain person unknown, on the day of, &c., [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 the said cer- tain person unknovrn, 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 in § 357.] 92 NEW CLERK'S ASSISTANT. § o59. Inquisition on a Person v>ho has Committed Suicide. Stale of New York, ) g. County, j An inquisition, &c. ; [as in § 357, to the *, and then continue at follows:'] 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, inffict a mortal wound, \or, wounds,] in and upon the body of liim, the said C. D., [or, person unknown," of which said mortal wounds the said C. D., [or, person unknown,] then and there instantly died ; [or, as the case may be;] and so the jurors aforesaid, upon their oaths afore- said, say that the said 0. D., [or, person unknown,] did, then and there, in manner aforesaid, and at the place aforesaid, voluntarily, and of his own malice aforethought, kill and murder himself, the said C. D., [or, person unknown,] against the peace of the people of this State, and their dignity. In witness, &c., [as in § 357.] § ZQQ.' Inquisition where One has been Wilfully Poisoned. State of New York, ) County, [ An inquisition, &c., [as in § 357, to the * and then continue as follows:] one 0. P., of, (fee, [or, late of. 18 , CORONERS. 193 did die of the poison aforesaid, given and taken as aforesaid, and of the sickness and distemper thereby occasioned; and so the said jurors say, that the said 0. P. did feloniously, wilfully, and of his malice aforethought, and in the manner, and by the means aforesaid, poison, kill and murder, the said 0. D., [or, person unknown,] against the peace of the people of this State, and their dignity. 'In witness, &c., [as in § 357.] § 361. Inquisition where One Poisons Simself State of New York, 1 County, [^®- An inquisition, &c., [as in § 357, io the *, and then continue as follows .•] the said 0. D., [or, person unknown,] on the day of, &c., at, &c., 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 coffee, [or, as the case may he ;] 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 apd 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 die of the poison aforesaid, so taken as aforesaid, and of the sickness and disLemper thereby occasioned : And so the jurors aforesaid, upon their oaths aforesaid, say that the said 0. D. did voluntarily, [or, when in a deranged state of mind ; or, through mistake,] kill himself in man- ner and form as aforesaid. In witness, &c., [as m § 357.] § 362. Inquisition where One Drowns Himself. State of New York, ) County, P^- An inquisition, &;c., [as in § 357, to the *, and then continue as ■ follows .•] the said C. D., [or, person unknown,] on the day of , &c., at, &c., in the county aforesaid, voluntarily, and of his own maUce aforethought, drowned himself in the river, situate in the town of , aforesaid : and so the jurors aforesaid, upon their oaths aforesaid, say that, &c., [as in § 361, to the end.] 194 JSEW GJ-ERK'S ASSISTANT. § 363. Inquisition where One is Drowned by Accident. State of New York,) g. Counly, j An inquisition, &c., [as in § 357, to the *, and then continue as /oUows:'\ the said C. D., [or, person iinknown,] on the day o^ &c., at, &c., m the comity aforesaid, went into the river, situate in the town of , aforesaid, to bathe, and then and there casually, accidentaliy, 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 unknovm, 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, (fee, [a^ in § 357.] § 364. Inquisition on a Person who has Died a Natural Death. StateofNew York, ) g. County, ) An inquisition, &c., \as in § 357 to the *, and then continue as follows .•] the said C. D., [or, person unknovm,] on the day of, (fee, at, (fee, in the county aforesaid, vras found lying dead on the highway, near the house of A. B., in the tovra of , [or, as the case may he:'\ 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 natural way, and not otherwise. In witness, (fee, [as in § 357.] § 365. Inquisition on a Person Fov/nd Deed, with Maries of Violence. State of New York, ) County, j An inquisition, &a., [as in § 357 to the *, and then continue as follows. ■'\ the said C. D., [or, person unknown,] on, (fee., at, (fee, was found lying dead on the highway, (fee, [or, as the case may 6e.'] and that the body of the said C. D., [or, person unknown,] when so foiind, as aforesaid, appeared to have been stabbed t*ice, with some sharp or pointed iastrument, to the said jurors unknown, in or near the left breast thereof, and to have been bruised or beaten with clubs, sticks, or the fists of some person, or persons, to the said jurors un- known ; and the said jurors, upon their oaths as aforesaid, do say that the said C. D. [or, person unknown] came to his death by the said CORONERS- 195 wounds and bruises, appearing on his body, as aforesaid, and not otherwise. In witness, &c., [as in § 357.] § 366. General Form of an Inquisition. State of New York, ) County, j ■ An inquisition indented and taken, for the people of the State of New York, at the house of E. 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 ihe view of the body of a female infant, 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, mto all the circumstances attending the death of the said female infant, and by whom the same was pro- duced, and in what manner, and when, and where; the said female infant came to her death, do say, upon their oaths as aforesaid, that the said female infant was found lying entirely naked and dead, in a certain inclosure of A. B., in the town of , aforesaid, near the public highway, known as the , on the day of , (fee. ; that the said female infant, when so found, as afore- said, appeared, County, ss: O. P. ) Examination of witnesses, taken at the house of E. F., m the town of , in said county, on the day of, &c., before G. H., one of the Coroners in and for the said county, in the matter of a complaint made upon the. oath of J. D. against 0. P., for feloni- ously killing'and murdering C. D., on, ifcc, at, &c., [or, made against 0. P., of felony and murder, who is charged, upon the mquisition of A. B., &c. &c., with having felonioushr killed and murdered C. D, on the day of, &c., at, &c.] [Insert the testimony of the Witnesses, in the same manner as in cases before Justices of the Peace^ I do hereby certify, that the foregomg is a correct statement and account of an examination taken by and before me, as above stated, and of the testimony of the several witnesses produced, sworn and ezammed thereupon. Given, &c., [as in § 368.] 1 For different forma of warrants, Bubpoenafl, reoognizanoes, &a, see Chapter XXT CORONEES- 197 ' § 370. Examination before Coroner and Jury, State of New York, ) County, P®' Exainination of witnesses produced, sworn and examined, on, &c., at, &c., before me, Q. H., one of the Coroners in and for the said county, and A. B., E. ¥., L. M., &c. Ac, good and lawful men of the said county, duly sworn upon tjieir oaths to inquire into all the' cir- cumstances, (fee, [as in § 357, to the words "do say," and then pro- ceed with the testimony of the witnesses^ I do hereby certify, that the foregoing is a correct statement and account of an examination taken by and before me, and the jurors aforesaid, at the time and place aforesaid, and of the testimony, &c., \as in § 3C9.J §371. Statement of Coroner, to he made to the Board of Supervisors. Statement and inventory, of all moneys, and other valuable tilings, found with, or upon, all persons on whom inquests have been held, by and before G. H., one of the Coroners in and for the county of , for and during the year commencing on the day of , 18 : " Upon whom found. Articles. Disposition thereof. CD. M. B. One gold watch, chain, and key; two gold finger rings; and twelve dollars in specie. One coat; one hat; &c. Delivered to the Treasurer cf the county of Delivered to the legal repre- sentatives of the said M. B. County, ss: G. H., of said county, coroner, as aforesaid, being duly sworn, says : that the foregoing statement and inventory, of all moneys, and other valuable things, found with, or upon, all persons on whom inquests have been held, by and before him, within the time speci- fied in said statement and inventory, and of the disposilion thereof is in all respects just and true, to the best of his knowledge and belief; and that the moneys and other articles mentioned in such statement and inventory, have been delivered to the Treasurer of the county of , [or, to the legal representatives of the per- sons therein mentioned.] Sworn to, this day of , ) G. H. A. D. 18 , before me, ) S. T., Justice of the Peace. CHAPTER MV. COVENANTS. PRACTICAL BEMAEKS. 1. A covenant is an agreement, by -which one person obliges him- Belf to do something beneficial, or abstain from doing something which, if done, might be prejudicial to another, and can only be cre- ated by deed indented, or by deed poll No particular form of words is necessary to create a covenant, buj; the ' instrument containing it must be imder seal' 2. The words " covenant, promise and agree," or " covenant, agree, (fee." or " covenanted, conditioned, concluded and agreed upon," or " I agree to do, cfec," or " yieldiog and paying," or " I oblige myself to pay, &c.," are sufficient to constitute a covenant 3. Covenants are sometimes implied; as a lease for years, render- ing rent, implies a covenant to pay the rent; but no covenant caa be implied in any conveyance, tmder the Revised Statutes of New York, whether it contain special covenants or not" 4. Covenants real, are those connected with lands, or other real property : covenants of warranty, for quiet enjoyment and future as- surance, that neither the grantor nor his heirs shall make any claim to the land conveyed, by a tenant to repair, to pay rent, or that no building shall be erected upon a common or public square owned by a grantor in front of premises conveyed, are all ■ covenants running with an estate in land.' 5. A covenant of warranty runs with the land till broken by the eviction of the purchaser or his asagnee, when a right of action ac- crues ; the covenant then takes the character of a chose in action, and may be released by the covenantee or assignee.* 1 6 Cowen, 446. ■ 2 R. S. C3d ed.) 22, § 140 ; 14 Wendell, 8 ; 8 Paige, 698; 2 Barbour's Ch. Rep., 559. « 13 Johnson, 236; 8 Cowen, 137; Sid., 206; r Wendell, 281 ; 10 Id.. 180 ; 17 Id., 148; 21 Id., 120: 2 HlU, 105; 6 id., 699; 3 Denio, 284; 4 Paige, 610. • 1 Barbour's S. C. Kep., 399. COVENANTS. 190 6.^ If a grantor has no title, his covenant of seizm is broken im- mediately OP the execution of his deed; but wheije there are ccjvc- nants of warranty and quiet enjoyment only, there must be an eviciion, before a recovery can be had.* _ 7. A covenant for quiet enjoyment in a lease of land for life is binding upon a subsequent grantee in fee of the premises." 8. Personal covenants are those which affect only the covenanter during Ufe, or are merely collateral to the title to land ; as covenants that the grantor is well seized, that he has good right to convey, and that the premises are unincumbered." 9. If a day be appointed for the performance of any act, which is to happen, or. may happen, before the performance of the act, which is the consideration of the first mentioned act, then the covenants are several and independent, and an action may be brought without averring performance of the consideration: the same rule applies where there is no fixed time for the consideration. But when the day appointed for the payment of the money, or performance of an act, is' to happen after the thing, which is the consideration, is to be performed, the covenants are dependent, and no -action will lie be- fore the performance of the consideration. Where a covenant goes only to a part of the consideration, it is an independent covenant. But where the covenants go to the whole consideration on both sides, they are mutual conditions, and dependent Where two acts are to be done at the same time, neither party can maintain an action, without showing performance, or an offer to perform, on his part* 10. Covenante are to be construed according to their spirit and in- tent; and where, from the subject matter of the covenant^ it is the evident intent of the parties that they should be taken severally, they may be so taken, although there be no express words to that effect' 11. A covenant must be construed by itself and cannot be con- trolled by a verbal agreement* FORMS. § 372. General Form of Covenant iy one Person. And I, the said A. B., for myself and my heirs, executors and administrators, do hereby covenant, to and with the said C. D., his heirs and assigns, that, &e. 1 1 Comstock, 509. s 3 Barbour's S. C. Rep., 391. ' 4 Johnson, 72 ; 3 Hill, 134 ; 3 Denio. 284. * 17 Johneon, 293 j 6 Cowen, 296; 2 Wen- dell, 4C7 ; S Id., 496 ; 8 Id., 615 ; 1 Benio, 59; 3 Id., 73. 6 Johnson, 49 ; 1 Wendell, 228. e 5 Wendell, 163. 200 HEW CLEEK'S ASSISTANT. § 373. Joint and Several Covenant. And we, the said A. B. and C. D., for ourselves and our lieirs, executors and administrators, do hereby jointly and severally cove- nant, to and ■with the said E. F., his heirs and assigns, that, &c. § 374. Several Covenant. And we, the said A. B. and C. D., do hereby severally, and not jointly, but each for himself and his heirs, executors and adminis- trators, covenant, to and with the said E. F., that, &c. § 37s. Covenant hy Husband, for himself aiui his Wife. And the said A. B., for himself and his heirs, executors and ad- ministrators, and for and on behalf of his wife, the said M. B., and her heirs, &c., doth covenant with the said E. F., that, &c. § 376. Covenant of Seizin. And the said A. B., for himself and his heirs, &c., doth hereby covenant, to and with the said C. D., his heirs and assigns, . that he is lawfully seized, as of a good and indefeasible estate of inheritance in the law, in fee simple, of and in the above granted premises, &c. § 377. Several Covenant of Seizin. And the said A. B., E. B. and C. B., do hereby, severally, and not jointly, and each for himself and for Lis heirs, executors and admin- istrators, covenanl^ to and with the said C. D., that he is lawfully seized of the one-third part, of, &c. § 378. Covenant by Several Grantors, where Each Confines his Covenant to his own Portion of the Ustcte. And the said A. B., for himself, his heirs, &c., and for the estate, right, title, quiet enjoyment, and further assurance, of the one-third paj:t of the above granted premises ; and the said E. B., for himself, &c., and for the estate, &c., of one other third part of the said prem- ises ; and the said C. B., for himself, &c., and for the estate, &c., of one other, and the remaining third part of the said premises, do, and each and every of them doth, severally, but not jointiy, covenant, to and with, &c. § 379. Covenant that Premises are Unincumbered, And the said A. B., for himself, &c., doth hereby covenant, to and with the said C. D., his heirs and assigns, that the said premises COVENANTS. 201 hereby granted, are free and clear, of and from all inoumbranoe, of every name and nature whatsoever. § 380. Covenant for Fwtlier Asswrance. And further, the said A. B., for Mmself, &c., doth hereby covenant, to and with the said C. D., his heirs and assigns, that he, the said A. B., for himself and his heirs, and all and every other person or per- sons, lawfully claiming, or to claim, by, from, or under, him, or them, shall and will, from time to time, and at all times hereafter, upon the reasonable request, and at the cost and charge of the said C. D., his heirs and assigns, make and execute, or cause and procure to be made and executed, all and every such further, and other lawful and rea- sonable deed, or deeds, whatsoever, for the further, better, and more perfect and absolute, assurance of the said premises hereby granted, or intended so to be, with their appurtenances, unto the said C. D., his heirs and assigns, as by him or them, or by his or their counsel, learned m the law, shall be reasonably advised, devised, or required. § 381. JohU Covenant against Incumbrance. And the said A. B. and C. D., for themselves, their heirs, &c., do . severally, and not jointly, nor one for the other, or for the act or deed of the other, but each for his own acts only, covenant, promise, grant and agree, to and with the said E. ¥., his heirs and assigns, by these presents, that they, the said A. B. and C. D., have not hereto- fore done, or committed, any act, matter, or thing, whatever, whereby the premises hereby granted, or any part thereof, are, or shall be, charged, in title, estate, or otherwise. § 382. Covenant for Quiet Enjoyment. And the SEiid A. B., for his heirs, (fee, doth covenant, promise and and agree, to and with the said C. D., his heirs and assigns, by these presents, that he, the said C. D., his heirs and assigns, shall and law- fully may, from time to time, and at all times hereafter, peaceably and quietly have, hold, occupy, possess and enjoy, the said premises, &c., hereby granted, or intended so to be, with the appurtenances, without the lawful hindrance, or molestation of the said A. B., his heirs and assigiis, or of any other person or persons whatsoever, by or with his or their act, consent, privity, or procurement § 383. Covenant ly Tenant for. Life, and Tenant in Fee of the Reversion. And we, the said A. B., and A. B., junior, for ourselves respec- tively, and our respective heirs, do severally, and not jointly, cove- nant and agree, to and with the said C. D., his heirs and assigns, that we are lawfully seized in fee of the aforegrauted premises, in 202 NEW CLERK'S ASSISTANT. maimer following, that is to say : that the said A. B. is seized there- of for his life, and as tenant by the courtesy; and that the said A. B., junior, is seized in fee simple of the reversion, or remainder there- of, expectant upon the determination of the said estate by the cour- tesy, (fee § 384. MuivaL and Dependent Covenant. And the said A. B., for himself, &c., doth hereby covenant and agree, to and with the said C. D., Ijis heirs and assigns, that he will pay to the said C D., his heirs or assigns, the sum of dollars, on the day of next; and in consideration thereof, the said C. D., for himseK, &c., doth covenant and agree, to and with the said A. B., his heirs and assigns, that he will make and execute to the said A. B., the Mayor. In the city of New York, application may be made to any one of the Justices of the Superior Court, or Judges of the Court of Common Pleas. The officer to whom the petition is presented, must reside in the same county with the insolvent debtor. If there be no officer in the county authorized to act in the premises, the appUcation can be made to an officer in any other county : the place appointed for the hearing, however, must be in the county where the debtor resides.' 7. Any person against whom any suit shall have been commenced in a court of record, in which such person cannot be arrested or imprisoned, may present a petition to a Justice of the Supreme Court, or County Judge in the same county; or, in the city of New York, to any one of the Justices of the Superior Court, or Judges of the Court of Common Pleas, praying that his property may be assigned. Fourteen days' notice of the presentation of the petition is required to be given. The notice is to be served with a copy of the petition, account, and inventory, forms of which are hereinafter given, on the plaintiff, or plaintiffs, by whom the defendant shall be prosecuted, their personal representatives, or attorney ; and proof of such service must be made at the time of presenting the petition. The subsequent proceedings upon such petition, are similar to those in the case of an insolvent debtor, as above mentioned. The dis- charge granted in pursuance thereof, will exonerate the debtor from being proceeded against by any creditor entitled to a dividend of the estate of such petitioner." 8. An assignment executed by an insolvent debtor, under the foregoing provisions, of all his estate, real and personal, passes the title to all lands he may own, without further description, and whe- ther such lands are mentioned in the inventory or not A re-con- veyance to him will not be presimied.' ' 9. Whenever any debtor is impiisoned in the State Prison, for any term less than his natural life; or in any penitentiary, or county jaU, for a criminal offence, for any term more than one year; application may be made to any of the officers to whom the petition of an insol- vent may be presented, by any creditor of such debtor, or by any of his relatives, or by any relative of his wife, for the appointment of trostees to take charge of the estate of such debtor. A copy of the sentence of conviction of such debtor, duly certified by the Clerk of the courts under his seal of office, together with an af&davit 'of the applicant, that such debtor is actually confined imder the sentence, and that he is indebted, (in any sum whatever,) must be presented to the officer, who thereupon proceeds to appoint two or I 2 R. S (3i1. ed.) 91, 92, §§ 1-6. I 'R. S. (3d ed.)110, § 13, e seq.; 3 Hill, 109 »Laws of 1831, chap. 300,5 12, et Beq.j 4 Id., 681, 606. \ 8 2 Demo, 61. 206 NEW CLERK'S ASSISTANT. more fit persons, as trustees of the estate of tte debtor. Whenever the imprisoned debtor is lawfully discharged from imprisonment, the trustees are bound to surrender up to liim all his real and personal estate, and all moneys belon^ng 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 county 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 thu Clerk's office of the county.' FORMS. § 386. Letter of License to a Debtor. To all to whom these presents shall come : We, E. R, oi, &c., ana Gr. F., 0^ (fee, limine the several creditorsi\ 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 daie 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 compoimd 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 afiairs, at his free will and pleasiire, 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 crechtors, severally 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- » 2 R. S. (3d ed.) 74, 75, 5§ l-S; 15 Wen- I a Laws of 1846, chap. 158 ilcl!,250. I DEBTOR AND CEEDITOK. 207 tratore, and every of them, by these presents, that if any trouble, vexation, wrong, damage, or hinderance, shall be done unto lum, the said A. B., either in his body, goods, or chattels, within the said term of months, from the data 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 all 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 given and granted, 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- UHDO set their hands and seals, the day of , 18 . . Signed, sealed and delivered ) E. F. [l. b.] in presence of J His debts, agreeably to the directioii of the statute of the State of New York, concerning " Voluntary assignments, made pursuant to the application of an insolvent and his creditors." Dated the day of , 18 . A. B. E. R, $ , J [^Insert the amovnt due to G. H., $ , J- each creditor, opposite the S. T., For Affidaritof EzecutiOD, mbS4(M. ^400; aixlcertincalcofClork, see^loS. | 220 NEW CLEEK'S ASSISTANT. discharge, to exonerate the said petitioner from being proceeded against by any creditor entitled to a dividend of his estate. Given under my hand and seal, the day of one thousand eight hundred and C. P. D., Judge oi &o § 415. Affidavit of Person, applying for the Appointment of Trus- tees for estate of Debtor confined for Crime; to Accom- pany tlie Copy of the Sentence, and Certificate of the Clerk. StateofNew York,) ^. County, f A. B., of said county, being duly sworn, says, that C. D., the per- son named in the annexed [or, within] copy of sentence of convic- tion, is now actually imprisoned in the State prison at , [or, in the penitentiary of, &c. ; or, the county jail of the county of ,] in the State of New York, xmder and in pursuance of the said sentence of conviction ; and that the said C. D. is indebted to this deponent [or, to L. M., of, &c.l in the sum of dollars, on account, [or, as the case may 6e,] for goods, wares and merchan- dise, sold and delivered to the said C. D., by this deponent, [or, by the said L. M. ;] and this deponent therefore makes application for the appointment of Trustees of the estate of the sdd C. D., ac- cording to the statute. A. B. Sworn, &c., [as in § 389.] § 416. Appointment of Trustees, on the Foregoing Affidavit and Application.' By the Hon. D. P., one of the Justices of the Supreme Court of the State of New York; [or, as the case may be,] Whereas, A. B., a creditor [or, a relative] of C. D., [or, a relative of M. D., wife of C. D.,] a debtor confined for crime, did, on the day of last past, [or, instant,] make application to me for the appointment of Trustees to take charge of tie estate of the said C. D. ; and did also produce a copy of life sentence of conviction of the said C. D., duly certified by P. V., Esq., Clerk of the Court of [specify the court before which the convictionwas had,']\mieT his seal of office, by which said court of the said sentence of conviction was passed; 1 The Trustees appointed to take charge of the estate of a debtor confined fbr crime, hare the same rights and powers as Trustees of the estates of absconding debtors. From the time of their appointment, the real and personal estate of the debtor is vested in them ; and they ars clothed with full power to sue for and collect all demands, to soil and dispose of the property of the debtor, and apply the proceeds in payment of his debts. Before pro- ceeding to the discharge of their duties, it is necessary to take and subscribe the oath, (§ 417,) which must be llted with the officer appointing them. DEBTOR AND CEEDITOli. 221 together with an affidavit of the said A. B., that the said C. D. is actually imprisoned iinder the said sentence, and is indebted to the the said A. B., [or, to L. M.,] of, &c., m the sum of dollars: Now, therefore, I, the said Justice, as aforesaid, do, in pursuance of the authority to me given by the statute concerning "Attachments against debtors confined for crimes," appoint M. N. and 0. P., two fit persons, to be Trustees of the estate of the said C. D., with such powers concerning the estate of the said C. D., as are conferred by the said statute. Given under my hand and seal, this day of, &c. D. P. i;L. S.J § 417. Oath of Tntstees of the Ustates of Debtors. We, M. N. and 0. P., appointed Trustees of the estate of C. D., a debtor confined for crime, [or, as the case may be,"] do fewear, and each for himself doth swear, that he will well and truly execute the trust, by his appointment reposed in him, according to the best of bis skill and understanding. M.H. Sworn, &c., [cm m § 389.] O. P. CHAPTER XVI. DOWEE, PRACTICAL REMAKKS. I,. A widow is entitled to dower of the third part ot -tU lands whereof her husband was seized of an estate of iaheritance, at any time during the marriage. In case of divorce, for miscond-uct of the wife, dower is forfeited; it is also barred by a pecuniary provision, made for the benefit of an intended wife, and in Ueu of dower, if assented to by her; and where an estate in lands is conveyed to a person and his intended wife, for the purpose of creating a jointure for her, with her assent, to be signified by becoming a party to the conveyance; or, if an infant, by joining with her father or guardian, in such conveyance ; such jointure will be a bar to any right or claim of dower, in any lands of the husband. So also a devise, or legacy, in lieu of dower, which is accepted, is a good bar.^ 2. A testamentary provision in favor of a wife, where the inten- tion of the testator is doubtful, may he accepted without forfeiting dower." 3. Where a mortgage of lands is executed by the husband before marriage, unless it be for the purchase money, the widow is entitlea to dower as against aU persons except the mortgagee and those claim- ing under him ; if a mortgage be executed after marriage, for the • purchase money, the widow will not be entitled to dower as against the mortgagee or those claiming under him, except that where the E remises are sold by virtue of the mortgage, after the death of the usband, and there be surplus moneys left after satisfying the mort- gage, she win be entitled to the interest or income of one-third of such surplus during her hfe.' 1 2R.S.(3(le(1026,51; Id., 27,558— U; I a 2 Denio, 430. 1 .lohnson, 307 : 10 Id., 30 ; 7 Cowen, 287 : 10 a 2 r. g. (3cl ed.) 26, §5 4, B : Id., 27, 5 6 Wendell, 486 ; il Id., 592:16 Id., 61; 24 Id.. 1 Barbour's S. C. Rep , 399. 193; 3Hill,95; 6Id.,482; 1 Paige, 634 ; 2 W., 559; 7 Id., 269. DO^WER. 223 4. A widow is not entitled to dower in lands conveyed to her bus- band by way of mortgage, unless he acquire an absolute estate there- in, during the marriage.' 5. A woman who has obtEuned a divorce a vinculo matrimonii, for the adultery of her husband, is not entitled to dower in his real es- tate, after his death." 6. No act of the husband alone subsequent to marriage, will affect the right of dower of his widow, but subsisting liens or incumbrances have the preference over her right' 7. Where a husband exchanges lands, in which he is seized of an estate of inheritance, for other lands, his widow is not entitled to dower in both, but must make her election in one year; otherwise, it wUl be presumed that she elects to take her dower of the lands received in exchange.* 8. The widow of any alien, who, at the time of his death, was entitled to hold any real estate, if she be an inhabitant of this State at the time of such death, is entitled to dower of such real estate." 9. Any woman, being an alien, who has married, or may marry, a citizen of the United States, will be entitled to dower in the real estate of her husband within this State, in the same manner as if she were a citizen of the United States." 10. In a doubtful case, where the right to dower depends upon the possession of the husband, the actual possession must be shown, and it must appear that he claimed to be the owner of the premises, and exercised acts of ownership.' 11. A married woman imder the age of twenty-one years, cannot bind herself by deed so as to bar her right of dower.' 12. A widow of a mortgagor is dowable of the equity of redemp- tion, except where the time of redemption is past before the marriage takes place.' 13. Where lands have been alienated by the husband, in his life- time, the widow is entitied to so much as shall be equal in value to one-third of the value of the lands at the time of the conveyance by the husband." 14. A widow may release her right of dower, but she cannot con- vey or assign the same, before the assignment be made. The heirs or owners may, on the other hand, assign her dower, without insti- tuting any legal proceedings." 1 2R. S. CSded.) Zr,§7. a 4 Barbour's S. C. Rep., 192. a 3 Barbour's S. C. Rep., 31». 4 2 R. S. (3d. ed.) 26, S3. '2 R. S. (3d. ed.) 26, §2; 1 Jghnson's eas., 27; 1 Cowen, 89; 12 Wendell, 66; 4 Kent's Commentaries, (2d ed.) 36. • Laws of 1849, chap. 115. 7 B Cowen, 301; 17 Wendell, 164; 2 Hill. 303 341. b'i Barbour's S. C. Rep., 399. » 6 Cowen, 316; 14 VVendell, 233; 19 Id., 162; 4 Kent's Commentaries, (2d ed.) 44, 45. "2 Johnson, 484; 11 Id^61; 13 Id., 179; 10 Wendell, 485; 4 Kent's Cammentarie9,(2ii ed.)64,70. i> 1 Barbour's S. C. Rep., 399; 3 Id. 319. 224 NEW CLERK'S ASSISTANT. 15. Any widowwho shall not have had her dower assignee laW-i': within forty days after the decease of her husband, may ajjply by petition, to the Supreme Court, or the County Court of the county in wliich the lands he, or to the Surrogate of the same county, for the admeasurement of her dower. A copy of such petition, with no- tice of the time and place when it will be presented, must be served, at least twenty days previous to its presentation, upon the heirs of the husband, or upon the owners of the land subject to dower, claiming a freehold estate therein ; or upon the g-uardians of such heirs, or own- ers, as are minors. Such notice may be served personally : or, in case of the temporary absence of the party to be served, by leaving the same with any person of proper age, at the last residence of such party. If any heir or owner reside out of the State, the notice may be served upon the tenant occupying the lands ; or, if there be no tenant, by publishing the same for three weeks successively, in some newspaper printed in the coimty where such lands are situated.' 16. The Court or Surrogate may, on application, appoint guardians for minors, if necessary; and notice of the apphcation musi be ser- ved on the guardian, whether the infant reside in this State or not" 17. After the expu-ation of forty days from the death of the hus- band, his heirs, or the owners of land subject to dower, may, by notice in writing, require the widow to make demand of her dower, within ninety days after the service of such notice. If this notice be disregarded, and no proceedings be instituted by the widow for the recovery of her dower ; or if no such proceedings be had with- in one year after the husband's death, where no notice has been given ; the heirs or owners, as aforesaid, may apply, by petition, fot the admeasurement of her dower, to the Supreme Court, County Court, or Surrogate. A copy of such petition, with notice of the time and place of its presentation, must be personally served on thf widow, twenty days before the presentation.' 18. Upon such application being made, either by a widow, or by an heir or owner, or by the guardian of such heir or owner, the Court, or the Surrogate, to whom the same is made, may order an admeasurement of the widow's dower; and shall thereupon appoint three reputable and disinterested freeholders, as commissioners for the purpose of making such admeasurement After taking the re- quired oath, the commissioners so appointed will proceed to admea- sure and lay oflF the one-third part of the lands embraced in the order, as the dower of "the widow, designating such part with posts, stones, or other permanent monuments. In making such apportion- ment, the commissioners must take into consideration any permanent 1 2 R. S. (3d ei) B82, ^1 1-3; Laws of 1849, I a 2 R. S. (3d ed.) 683, 51 4, 6. chap. 438, Part I, title) , § 30, sub. 4: 4 Wen- » 2 R. S. (3d ed.) 583, l§ 6-8. 3811,630; 12 Id., 138. DOWER. 2'>^' improvements made since the deatli of the liusband, by any heir, owner, or guardian ; and, if practicable, award such improvements ' witliin 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 full and ample report of their doings, to the Court or Surro- gate appointmg them; m 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 by her deceased husband.* FORMS. I 418. Assignmerd of Dower. This indenture, made the day of, &c., between R. B., son and heir of A. B., late of, &c., of the one part, and M. B., who is 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 lifetime, and at the time of his death, seized in his demesne, as of fee, of and in divers lands and tenements m , in the pounty 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 K B. hath endowed and assigned, and by these presents doth endow and assign, unto the said M. §., \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. (3d ed.) 683, 584, §6 9-17; 1 Cow- 1 » 2 R. S. (3d ed.) 585, 586, ^ "8-27; 2 Hill, en, 476; 4 Wendell, 630; 8 Id., 46U; 10 Id., 544. 4a0: 2 Hill, 544. » 2 Comstock, 246. 15 226 NEW CLERK'S ASSISTANT. of the said M., m severalty, by metes and bounds, in the name oJ dower, and in recompense and satisfaction of all the dower wbicli tjie 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 R B. hath hereunto set his hand and seal, the day of , in the year eighteen hundred and Sealed, signed and delivered, ) £L B. [l. s:] in presence of J G. H. § 419. Release of Dower to ihe Heir. Know all men, &c. : That I, M. B., &c., reUct of A. B., late of, &c., as well for and in consideration of the sum of dollars, to me paid, by my son, R Bi of, &c., as for the 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, \descrip- tion/l so that neither I, the said M. B., my heirs, executors, or administrators, nor any other person or persons, for me, them, or and • of them, shall have, claim, challenge, or demand, or pretend to have, claim, challenge, or demand, any dower or thirds, or any other right, title, 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 in § 418.] § 420. Petition for Bower. To the Supreme Court of the State of New York: [or. To the County Court of the County of, &c. ; or. To the Surrogate of the County of • :]* The petition of M. B., of, &c., widow of A. B., o^ &c., deceased, respectfully showeth, that her said husband died on the day of ,18 , at, &c., leaving an estate in fee belonging to him when he died, in and to \describe the real estatefl that she has not nad her dower therein assigned to her, within' forty days after the decease of her said husband, nor at any time ance. Wherefore, she respectfully applies to this honorable Court, [or, to the said Surro- gate] for the admeasurement of her said dower. Dated. &o. M.B. B. F. H., Attorney. DOWER. 227 § 421. Notice to be Annexed to Petition, To \imert the names of the heirs or owners .•] Please take notice that a petition of which the a(bove 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 there be made to grant the same. Dated, &o. M. B. R. F., Attorney. § 422. Notice by Heirs or Owners, if Widow does not Apply. To M. B., widow of, &c.: \or if she has a second husband, address it to bothi] Please take 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 [Sic/natures.l § 423. Petition by Seirs or Owners. To, &c., \as in | 420, to the *, and then continue as follows ;] The petition of, &c., \naming the heirs^ heirs of A. B., deceased, late of, &c., \or, owners of the real estate hereinafter mentioned, for merly belonging to A. B., of, &c.,] respectfully showeth : That the said A. B., died on, (fee, at, &c., leaving an estate in fee belonging to him when he died, in and to all, [description ;'\ 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 assig-ned to her ■vs'ithin 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, 1 R. S. (M ed.,) 863, 55 7, 8 : Id., 864, § 1 5 ; !4 Johnson, 231 : 8 Cowen, 130 ; I Hill, 655. « 1 K, S. (3d ed.,) 863, 5 4 ; IB Wendell, 260; lHiII,6&S; 1 Denio, S40. 6 1 Johnson, 500. • 1 R. S. (3d ed.,) 863, 5 E; 11 Johnson, 179 : 2 Johnson's Cas., 346 ; 1 Denio, 149. T Laws of 1843, chap. 97. 8 3 Denio, 226. 9 Laws of 1849, obap. 4Sa 232 ITEW CLERK'S ASSISTANT. FORMS. § 429. UTotice of Svipervisor for Special Meeting oftlie Commis- sioners of Excise} To H. R R, 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 said 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 o6 the Yown. a TTi' \ Justices of the said town. Resolved, That licenses be granted to the following persons, to retail strong and spirituous liquors arid 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. 0. P., as a Grocer. [Insert the sums opposite each name!] 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 Tavern 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. »■•",' !• Justices. (EC, (EC, J In iiiOiM til .he uicorporiiled villages in :ul6 state, the boards ol" Trustees are, ex i>0cio, commissioners ol" exf'.ise Special meetings are called by the President of tlie board, and the proceedings are conducted in the same manner aa' in towns. The foriii herein given may be readily made applicable, by changing the official designation of the members of the board. In cities, licenses are granted by the Mayors and Aldermen. EXCISE. 233 § 431. License for Tavern Keeper to Sell Spirituous Liquors. We the iindersigned, forming 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 h'cense 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 character, and of sufficient ability 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 this 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 until 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. t ■ 7 (■ Justices. fflC, (fee, j § 432. Bond of Tavern Keeper, on License to Sell Spirituous Liquors, with Certificate. Know all men by these presents : That we, L. M. and E. R, of, &c., are held and finnly bound unto 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, weU 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 vrith 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 hin 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 sufier it to be disorderly, or suffer 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.] in presence of J E. F. )l. s.] an. &c., &c. 234 NEW CLEKK'S ASSISTANT. We, the undersigned, forming a board of Comniissioners of excise for the town aforesaid, apprQve of the security to the above bond, aa suflBcient for the purposes intended. A. B., Supervisor. &c%., \^^^<>^ § 433. lAcensefor Tavern Keeper, under Act of 1843. * We, the imdersigned, forming a board of Commissioners of excise for the town of , in the county of , having been ap- plied to by C. D., a resident of said town, who pui-poses 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 alcohoUc 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 grant this license, and authorize him 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 0. D., 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., [as in § 431.] § 434. Bond for Ohtairdng License, tmder Act of 1843. Know all men, etc., [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 alcoholic drinks, in such inn or tavern : Now, therefore, the condition "/" na. uuugation is such, that, «! SCo^™' •2E.S.(8ded.,)748,S|l,2. 661 ; 16 Wendell, 4.'5; 28 Id., 57: 86 Id., 461; /— m. 1 Denlo, 658 ; 2 Paige, 475. ' ' 1 FEES OP OFFICEES. 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' I. All Clerks and Eegisters of counties, plaiming any fees by vu-- tue of their respective offices, upon being required in writing by the party liable 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 required as aforesaid, without the same are taxed." 8. In order to entitle a Sheriff, or Constable, to his 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 pot attend in obedience to a subpoena, are not entitled to fees, and the party paying them can recover back the money.' II. No town officer is entitled to be allowed any per diem com- pensation for his services, unless expressly provided by law.' 12. No travel fees for travelling to subpoena a witness beyond the limits of the county in which the subpoena was issued, or of an ad- joining coimty, will be allowed, unless it is made to appear to the board auditing the accoimt, by satisfactory proof, that such witness could not be subpoenaed, without additional travel ; nor will an^ tra- vel fees for subpoenaing witnesses be allowed^' except such as the board shall be satisfieawere 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 12R. S.(3dcd.)36l, $236. 3 Laws of 1844, chap. 127. " 6 Johnson, 253; 2 Cowon, 421. 4 I Wendell, IIM. e S Wendell, 107; 3 Hill, 457: 4 Id., 695. • Laws of 1845, chap. 180, i 23. ' Laws of 1845, chap. 180, i 27; 1 Demo. 663. NEW CLERK'S ASSISTANT. appointed by a court of record, viz : 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 ^brties. § 438. Assessor's Fees. For each day actually and necessarily devoted to the service of the town, one dollar and twenty-five 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. Broker'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 term. Thirty-eight cents for making or renewing any bond, bUl, 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 trial 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 salaried officer, and in such cases one dollar. For copies of all paj)ers and proceedings in civil actions, five cents for every 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 every certificate of the satisfaction of a mortgage, and en- tering such satisfaction, twenty-five cents. Entering a minute of a mortgage being foreclosed, ten cents. Entering in a book the bond of every Collector, twelve and a half cents ; searching therefor, six cents ; entering satisfaction, twelve and a half cents. FEES OF OFFICERS. 23i> Receiving and filing every paper deposited with him for safe keep- 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 shaU in no case amoimt to less than fifty cents, nor more than five dollars. Searching the docket of judgments and decrees, five cents a year, and twelve and a half cents for the certificate. (See 3 Denio, l7l.) Searches preparatory to making the loans authorized by the act providing for the loan of certain moneys belonging to the United States deposit fimd, three dollars ; except where tbe regular fees would be less than that sum. Filing each chattel mortgage, or copy, 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 name for docketing. Filing and entering a specification, or copy of a contract, in the 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 aflfirmation of intention to become a citizen, record and certi ficate thereof delivered to him, twenty cents. For all the services requisite upon the completion of the proceed- ings of an alien to become a citizen, including the record and a cer- tificate, fifty cents. Detennining 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 doUar. 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 doUar. Investing the proceeds of the sale of any estate, under 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 ovei the same to the persons entitled, one-half of one per cent . 240 NEW CLERK'S ASSISTANT. Eor attendance in canvassmg the votes given at any election, two dollars. Drawing aJl necessary certificates of the resiJt of such canvass, eighteen cents for each folio; and nine cents each folio for the neces- sary copies thereof Kecording 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 notice to the Governor, of persons who have taken the oath of oflice, three cents for each name. Giving such notice of persons who have neglected to take the oath of office, ©r to file or renew any security, within the time required by law, and of any vacancy created by any officer 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. Notifpng 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 roll, 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 recotds, indictments, and other proceedings, the like fees as are allowed in civil cases for copies of papers filed in his office. For taking the acknowledgment of satisfaction of a judgment in the County Court, thirty-seven and a half cents. § 442. ClerJc of the Board of Supervisors. A reasonable compensation for his services, to be fixed by ine board, and to be paid by the county. FEES OF OFFICERS. For a certified copy of any account on file in his office, six cente for every folio of one hundred and twenty-eight words. § 443. Oommissioners to take Testimony, to he read in Justices' Courts For takmg 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 maJce Partition, or to Admeasure Dower. For every day's actual and necessary service, two dollars to each commissioner. § 445. Commissioner of Deeds. For administering an oath or affirmation, and certifying the satae when required, twelve and a half centSi For taJdng 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 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 ; (Law*! of 1847, 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 otha: town charges. § 44 Y. Commissioners of Highways. For each day actually and neccessarily devoted to the service ot the town, one dollar. K 242 NEW CLERK'S ASSISTANT. § 448, Cbmmissioners to Loan United States Deposit Fimd. Such Commissioners may retain, out of the interest moneys coming into their hands, the following per centage on the money committed to their charge, as a compensation for theh' services: upon twenty- five thousand dollars, or a less sum, three-quarters of one per cent ; upon the further sum of twenty-five thousand dollars, or less, half of one per cent. ; and where the whole sum shall exceed fifty thou- sand dollars, half of one per cent, except in the city and county of New York, ip which city and county the commissioners shall, upon aH sums exceeding fifty thousand dollars, 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 delivered 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 cents. 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 dollar collected over fifty dollars. For every mUe, going only, more than one mile, when serving a summons, warranty 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 mile more than one. Sununoning a jury, fifty cents. Serving a subpoena, twelve and a half cents for each witness served; but no allowance will be made in any judgment, for service upon more than four witnesses 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 feie, penalty, or sum, pursuant to any warrant; the same fees as are allowed on executions from Justices' Courts. An-esting 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 OFFICERS. 243 and twenty-five cents a day in each of the other comities of this 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 warrants in civil cases.' Taking a defendant m 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, siioh fees as the board auditing the account shah be satisfed were indispen- sably nesessary. For other services in criminal cases, for which no compensation is specially provided by law, such simi as the board of Supervisors of the 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 Sherifis for similar services. For serving a summons in the city of Albany on one defendant, and notifying the plaintaflF 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 every additional defendant named in the same warrant § 460. 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 dollars 1 K Constable is not entitled to mileage, unless the party is arrested, even thougb he cue aot be found. C 1 Denio, 658.1 244 NEW CLERK'S ASSISTANT. for each week, to be paid by such Sheriff before he shall be entitled to be diaoharged. § 451. County Judges, in Special Cases} For every day employed in the hearing and decision of appeals in relation to highways, two doUaxs, to be paid by the party appealing, where the determination of the Commissioner, or Commissionei-s^ 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 acknowledgment, 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.) Receiving and filing every petition, and the affidavits, schedules and papers, accompanying the same, upon any application made pur- suant to the provisions of the statute in relatioi^ 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, ihirty-seven and a half cents. Presiding at and conducting any trial by a jury, swearing such jury, receiving and entering their verdict, or dischar^ng them, twc 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 Ltisolvent, 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 The fees received by the County .Judge, nfler deducting hia salary, are tohepaidover \a the County Treasurer, on the first Monday of May, and November; (Lavrs of 1847, chap. 277, §§ 8, 9 ; Laws of I&19, chap. 9S,)apd' an account thereof, verified by affidavit, is to bo rendered to the board of Suuervisors at their annual meeting. FBES OF OFFICEES. 245 For every notice to any party, ofl&cer, 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- readent debtors. For attendance upon any special matter, where no fee is specially provided for the service rendered, twenty-five cents. Admitting any person to prosecute as the next friend, or to defend as the guardian, of an infant, nineteen cents. Every 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 subpcena, 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 civil proceeding, twenty-five cents. For warrant of restitution, or to put any party in possession of lands, thirty-seven and a half cents. TaJdng 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. § 452. Oovmty SperirUendents of the Poor. Such sum, for their actual attendance and services, as the board of Supervisors of their county shall deem reasonable. § 453. Covmiy 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 Kings. 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 tiie half of one per cent for disburs- ing, or eight hundred dollars in the aggregate. For receiving moneys jn seciirities transferred to him by the clerR 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* 846 NEW CLERK'S ASSISTANT. reasonable expenses necessarily incurred ; and dciuble the commia sions allowed tc 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. ExeavAors' and Administrators' Fees. A reasonable compensation for the services of the appraisers ap- pointed upon their application, 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, and 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 dollars 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 mUe 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 fixed by the town meetings of their respective towns. § 457. Jwor's Fees. For attending to serve as such, in a Justice's Court, although no', sworn, ^ cents; for attending and trying a cause, twelvO and a half cents. 1 If there be more than one Executor or I according to the services rendered by then? administrator, the allowances are to be ap- I respectively. (Laws of 1849, chap. 160.) portioned among them by the Surrogate, | FEES OF OFFICERS. 247 fo ea«h juror impanneled to try a cause in any Circuit Conn, County Court, or Mayor's Court, twenty-five cents for each cause, to be paid by the party notiomg 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 lie courts 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 doUar 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 sworn and serve as such, for attending any Circuit Court, Court of Oyer and Terminer, County Court, or Court of Sessions, one doUar 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 ofiBcer 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 jiu-or sworn in any proceeding authorized by the provis- ions of the statute in relation to abscondmg, 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. Jibstices of the Peace. For a summons, nine cents ; but no more than two summons to be mcluded 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 subpoena, six cents ; administering an oath, six cents. For filing every paper required to be filed with him, three cents; but not to be allowed for filing any written complami pleading, or process, m any ca.use. 248 NEW CLERK'S ASSISTANT. For a venire, nineteen cents; swearing a jury, twelve and a lialf cents. Entering a judgment, twenty-fiye cents; for a transcript tliereof, twenty-five cents. Taking every bond or other written security in civil actions, if drafted by tbe 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 recognizance, 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 dollar; 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 u 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 a,uthority 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 Administering an oath or aflSrmation, 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 m 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 foi each additional person, twelve and a half cents. 1 The c6sts of a commission are to be included in tbe costs of the suit, though the gross emouQt exceed fire dollars. FEES OF OFFICEES. 240 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 oflfence relating to the internal pohce 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 flie 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. § 469. 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- cludmg the notarial seal, if affixed thereto, seventy-five cents ; and Notaries are required to furnish, imder 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 haJf cents per folio for a copy thereof § 460. Overseers of the Poor. For every day actually and necessarily devoted to the service 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 NEW CLERK'S ASSISTANT. § 461. Overseers of Highways. For. any excess of work over and above his assesment^ performed by an Overseer of Highways, seventy-five cents per day. § 462. Powrvdmaster'a Fees. For taMng 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 Iamb, 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. » Publishmg 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 foUo for the first insertion, and twenty cents per folio 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 dollar. § 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 dme- rent compensation. (Laws of 1849, chap. 438, Part II, Title X,, § 313.) Eeferees, 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 countv. § 465. Register of Deeds in the OUy of New YorJc. The same fees as are allowed by law to County Clerks, for similar services performed by them. For filing a chattel mortgage, or a copy thereof six cents ; for FEES OF OFFICERS. 251 entering the same, six cents for every party to such instmment; searching for each paper, six cents; and the like fees for certified copies of such papers as are allowed to County Clerks for copies of records. § 466. School District Collector's Fees. One per cent on all taxes voluntarily paid m, during the first two weeks after redeiving a tax list and warrant; and five per cent on all sums collected after tLat 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 Meamres. For sealing and marking every beam, twelve and a half cents. Sealing and marking measures of extension, at the rate of twelve and a hafi cents per yard, 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 making such weights and measures conform to the standard. § 468. Sheriff's Fees. For serving a writ, 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 nule, for going only, to be computed in all cases from the court house of the county ; and if there be two or more court houses, to be computed from that which shall be nearest to the place where the service shall have been made, except, that in the coimty of Oneida such travel shall be com- puted from the court house in Whitestown. Takincf a bond on the arrest of a defendant, or taking his endorse- ment of appearance, or for takmg a bond m any other case, where he is authorized to take the same, for which no fee is otherwise pro- vided, thii-ty-seven and a half cents; and for a certified copy of such bond, twenty-five cents. Returning a process, twelve and a half cents. Servino- 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 oolleoting tlie sum of two hundred and fifty dollars, or less, two cents and five 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 folio ; for two copies thereof, twelve and a half cents 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- titied 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 cents 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 titie to any personal property, attending such jury, and making and returning the inquisition, one dollar- and fifty cente. Summoning a foreign or speciM jury, pursuant to a verdre 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 provisions of the statute concerning absconding, concealed, non-resi- dent, and fraudulent debtors, or against a ship or vessel, fifty cents, FEES^OF OFFICERS. 253 with such additional compensation for his trouble, and expenses in taJdng 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 afterwards 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. Maldng 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 Supervisor, or one of the Assessors, of the different towns and wards of his coimty, one doUar 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 prison, and every person discharged therefrom, in civil cases, twenty-five cents for receiving, and twenty- five cents for discharging, to be paid by the plaintiff in the process. Summoning Constables to attend the Supreme Court, or any other court, fifty cents for each Constable. AttendSng the Supreme Court, two dollars pei 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 County, upon a judgment rendered by a Justice of the Peace, the same fees as are allowed to Constables in the like cases. Taking into his possession any wrecked property, and selling the same at public auction, his reasonable expenses, to be settied 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, thirty-seven 1 A Sheriff is not entitled to a per diem Courtof Sessions, in iiia own county, (2 Hill, compraisation, for attending either the Cir- ' 411.) tuit, Oyer and Terminer, County Court, or , 254 NEW CLERK'S ASSISTAHT. and a half cents ; for every 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- Vet shall be conveyed, thirty-five cents. For convejring 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 mainleinance 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 dollars, and if estimated on the whole amount bid on the sale would have exceeded that sum, the Sheriff will be entitled to five dollars.i § 469. Supervisor's Fees. For one day's attendance upon the Board of Excise in his town, one doUar and twenty-five cente. When associated with the Town Superintendent in the erection or alteration of a school district, one dollar and twenty-five cents 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 oflScial duties, eight cents per mile. For maMng a copy of the assessment roll of the town, and maMng out the tax bill to be deUvered 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 ahowance, while employed in copying the assessment roll, and maldng out the tax biU. ' See Laws of 1847. chap. 280, § 77. FEES OF OFFICERS. 5^55 § 470. Swrogate's Fees.' Drawing proof of a -will -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, fifly cents. 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 like 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 simmaons, 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 witnesses 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 cent& A discharge of any person committed, including the seal, fifty cents. For drawing and taking every necessary affidairit, 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 hot 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 I 277; {§8, 9; Lawo of 1849, chap. 95;) and deducting his salary, are to be paid over to 1 an account tnereof, vonfied by amdarit, ia ta the County Treasurer, on the firtt Monday of I be rendered to the Board of Superriiors, at May and NoTember, (Laws o( 1847, chap. | their annual meeting. 256 NEW CLERK'S ASSISTANT. more than twenty-five cents shall be charged or received 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 vriU from any other than the English language, ten cents for every folio. Copies and exemplifications of any record, proceeding, or order, had ^r made before him, or of any papers filed in his office, 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 doUar and fifty cents ; and for the confirmation of the sale of real estate, seventy-five cents ; and for making, draw- mg, 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 doUars 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 lus removal, or for the removal of any guardian, or any application to annul the pro- bate of a wiU, two dollars. For hearing and determining 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 applications 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 dollars : . 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 dollars, 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 simi 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 OFFICERS. 257 the same for the support and education of such minor, one-half of one per cent Appointing a guardian to defend any infant who shall be a party to any proceeding, fifty cents ; but where there is more than one minor of the same family, and the same g-uardian 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 CommissionLrs for ihe 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 applying 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 office, except as above provided. For drawing and recording all necessary petitions, depositions, 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 every other necessary service in cases of proof of will, and issuing letters testamentary, when not contested, and the will does not exceed fifteen foUos, Surrogates shall receive twelve dollars; and where the wUl 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 all fees on filing the annual account of any guardian, where 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 noj taken by him, he shall charge no fees. For any necessaiy travel required under the law of 1837, con- cerning the proof of wills, &c., (Laws of 1840, chap. 460, § 69,) Surrogates are entitled to ten cents per mile, 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. § 4'71. Surveyor's Fees. . For actual service in surveying, laying out, marking and mapping, anv real estate, of which partition shall be made pursuant to law, or of 'which dower shall be admeasured, two dollars and fifty cents par Jay. ^^ ass NEW CLERK'S ASSISTANT. For each of his necessary chain and flag bearers, and other neces- sary assistants, one dollar per day. § 472. Town Clerk's Fees. For filing every chattel mortgage, or copy thereof, six cents ; foi 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 cattie 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 tte 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 advertising 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 imder one dollar, if paid within thirty days from the first pasting of the notice required by law; where the aggregate amount to be collected does not exceed two thousand dollars, the collector is entitled to two per cent as his fees, on aU volimtary 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 aU impaid taxes, five per cent, and for returning unpaid taxes, two per cent, to be allowed by the County Treasurer. FEES OF OFFICERS. 259 To the Collector of the town of Minerva, in the county of Essex, for travel fees from his place of residence to the office 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, foi the same, twenty-tive cents per mile; 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, Non-Eesident, 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 county, 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 every 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 mUes from the place of attendance, traveling fees, at the rate of four cents per mUe, going and returning. For every witness who shall appear and testify before any Justice of the Peace taJdng 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 subpcena, or by virtue of a re- cognizance, who is poor, or has come from any other State or Terri- tory of the United States, or from any Foreign country, such reason- able sum for his expenses as the court may direct CHAPTER XDL FENCE VIEWERS. PKACTICAL 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, cannot agree as to the charges to be 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 tiie division fence be- tween them, except the owner or owners of either of the adjoining lands choose to let such land lie opea 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 bmld his proportion of such division fence. The value of such fence, and the proportion thereof to be paid by such person, and the proportion of the division fence to be built by him, in case of his enclosing his land, are to be deterromed 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 tliem, such disputes may be set- tled by any two of the Fence Viewers of the town. When any ol' 1 1 R. S. (3d ed.) 388. § 8. I • 1 R. S. (3d. ed.) 401,§ 21. a !R. S.(3d. ed.)40l,§23. | FENCE VIEWEES. 201 ihe above mentioned matters are submitted to Fence Viewers, each 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 exanune 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 maintained 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 sjich 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 wiU be only pri- ma facie evidence of the amoimt 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 so neglecting 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 lie open, he may, at any time between the first day of November in any year, and the firet day of April following, but at no other time, give 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, determme 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 mjured, aU 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 R S (3d ed.) 402, 403, §5 30-36; 4 John- I ' 1 R. S. (3d ed.) 403, S5 37-39; Laws at WH, 414; 9 Id., 131: 17 Wendell, 330. 1838, chap. 261; 11 Wendell, 46; 18 Id., 2ia I 3 Hill} 38. 262 HEW CLERK'S ASSISTANT. portion thereof, within ten days after he shall be thereunto required, by any person interested therein; such reqiiisition 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 repab the. same, at the expense of the party so refusing or neglecting, to be re- covered from hun, with costs of suit' , 7. Witnesses maybe examined by ..the, Fence Viewers, on all 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 inoming 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 uflfler their hands the amount of the damage, with their fees ; and if any dispute arise, touching the sufficiency 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 killed or injured by any d6g, may apply to any two Fence Viewers of the town, who shaU 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 tlie 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 limiber may be found, whose duty it will be, after hearing the proofs and allegations of the parties, to determine the amoimt of such damage, at the ex- pense of the owner of the timber or lumber ; and their decision wiU be conclusive. The Fence Viewers may, in such cases, issus process for witnesses on behalf of either party, and administer oaths on taking their testimony.' I 1 R. S. (3d ed.) 403, 404, §§ 40-43: 3 Wen- lell, 142. " 1 B. S. (3d ed ) 404, § 44. 8 2 R. S. (3d ei.) 607, 608, 5S 1- son 263, 369; 15 Id., 220: 19 Id., ' « 1 R. S. (3d ed.) 886, 5 10. ' 1 B. S. (3rt ed 1 877, {§ 2, 3, FENCE VIEWERS. 203 FORMS. § 476. Fence Viewer's Certificate, where Stray has not been Claimed or Bedeemed. County.) Town of ,\^- ±. 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 lauds the following stray animals, to wit: [name them,'] 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 same amount to the sum of dollars and cents : and that the fees for my service amount to dollars. Given under my hand, this day of , 18 . E. R, Fence Viewer. § 477. Certificate where Parties cannot Agree upon the Charges for Keeping Strays. County, ) Town of ,f^^= Whereas, a dispute has arisen between A. B. and C. D., of said town, concerning the reasonable charges of keeping the following strays, to wit: [name them,'] 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 time imtil the date hereof, and which are now claimed by the said C. D. : Now, therefore, we, the imdersigned, two of the Fence Viewers of said tovni 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 doUars and cents; and that the fees for our service amount to dollars. Given imder our hands, this day of ,18 (i h' l ^^^'^^ Viewers. S 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 certam lands adjoining, in said town of , and on the ■ day of 2G4 NEW CLERK'S ASSISTAITT. ,18 , or thereabouts, the said A. B. erocted 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 0. 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 inquiry into the facts, and examined the premises; that the foUovdng is a correct description of the fence so built by the said A. B., as aforesaid, to wit: [^ive 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, &c., [as in § 477.] § 479. Certificate upon Searing Dispute between Owners of Adjoining Lands. County, ) Town of ,\^'- Whereas, A. B. and C. D. are the owners of certain lands adjoin- ing, in the said town of , and a dispute has arisen between them, concerning the respective proportions of a division fence to be maintained, \or, made,] by them. Now, therefore, we, the under- signed. Fence Viewers of said town, do hereby certify, that upon the appUcation of the said parties, we proceeded to examine the premises and heax the allegations of the said parties; and that we do deter- mine that said division fence be bmlt as follows, to wit: [give description f\ that one-third part of said fence is the proper propor- tion thereof to be built by tJie said A. B. ; and that the remaining two-thirds is the proper proportion thereof to be buUt by the said 0. D. : And we also certify, that our fees for our service amount to dollars. Given, r, maintain] his proportion of a division fence between the aforesaid lands, we proceeded to examine the premises ; and, after due inquiry, and examination by us made, we do determine that the said A. B. has sustained damages to his land, crops, fruit trees, and shrubbery [add fixtures, if necessary,'] in consequence of the neglect [or, refu- sal] of the said C. D. to make [or, maintain] his proportion of such • division fence as aforesaid ; which said damages we have ascertained, and do appraise at dollars. [Given, &c., as in § 477.] § 481. Cerlificaie where Cattle are Distrained Doing Damage. County, } Town of ,p®- We, the subscribers. Fence Viewers of said town, having been ap- plied to by A. B., of said town, to appraise the damages done by [give the number and description of beasts, as near as may be,] dis- trained by him doing damage on his lands, and having been to the place, and viewed and ascertained the damages, do hereby certify the amount thereof to be dollars and cents, and that the fees for our services are $ . And a dispute haviug arisen be- tween the said A. B., on the one part, and 0. D., on the other part, touching the sufficiency of the fence along the east side of the orchard on the premises of the said A. B., which fence was shown to us by the said parties ; and having heard their allegations, and exammed witnesses in relation thereto, we 'decide that tiie said fence is good and sufficient [or, bad Rnd msufficient] Given, &c., [as in § 477.] § 482. Notice ffid Certificate of Consent to Itemove Division Fence. To Mr. A. B. . Take notice, that I shall make application to E. F. and G. H., two of the Fence Viewers of the town df , on the day of next, [or, instant,] for permission to remove the division fence between the land occupied by you in said town, and that owned and occupied by me, lying adjacent thereto.' C. D. Dated the day of ,18. ' If a portion only of the division fence is to I be disturbed, it should be particularly desig- I nated in tbe notice. 1,1 26fi NEW CLERK'S ASSISTANT. Town Of '°'"*^:}- We, the undersigned, two of the Fence Viewers of said town, do hereby certify, that upon the application of C. D., made in accord- ance with a notice, of which the above is a copy, duly served upon . A. B., therein mentioned, more than ten days before this day, we have examined the premises where the division fence named in said notice is situate, and do determine, that the same may, with propriety, be removed. Given, &o., [as in § 477.] § 483. Certificate that Sheep, or Lamhs. were Killed by Dogs. County.) g. Town of , ) ■ We, the undersigned, two of the Fence Viewers of said town, do hereby certify, that upon the application of A. B., the owner of sheep, [or, lamba,] alleged to be killed by dogs, we proceeded to inquire into the matter, and to view the sheep [or, lambs,] killed, and exam- ined witnesses in relation thereto; and that we are satisfied that sheep [or, lambs,] belonging to the said A. B., were killed by dogs, and in no other manner; and we also certify, that the amoimt of damages sustained by the said A. B., in consequence of the IdUing of said sheep, [or, lambs,] as aforesaid, is doUars and cents ; and that the value of said sheep [or, lambs] is dollars and cents. Given, &&, [as in § 477.] CHAPTER XX. FEEEIES. PRACTICAL EEMARKS. 1. Tlie Comity Court in each of the counties of this State may grant licenses for keeping ferries in their respective counties, to aa many suitable persons as they think proper ; which licenses will con- tinue in force for a term to be fixed by the coiui;, not exceeding three years. No such license can be granted to any person other than the owner of the land through which the highway adjoining to the ferry shall run, unless such owner neglect to apply for such license, aftei notice has been given to him, at least eight days before the sitting of the court, of the intention of such person to make the application.' 2. Every person applying for a license, before the same be granted, must enter into a recognizance to the people of this State, in open court, ia the sum of one hundred dollars ; which recognizance is to be forthwith filed with the Clerk of the county. Every license so granted, must be entered in the book of minutes of the court, kept by the Clerk, and a copy thereof attested by him, delivered to the person licensed." 3. Whenever the waters over which any ferry may be used, divide two counties, a license obtained in either will be sufficient to autho- rize the person obtaining the same, to transport persons, goods, wares, and merchandise, to and from either side of said waters.' 4. If any person (except within the counties of Essex and Clinton, the counties of Orange, Rockland, and Westchester, and the counties in the first Senate District) use any ferry for transporting across any 1 R. S. (3d. ed,) 642, 643, 5§ 1-3 ; 11 Wen- | a 1 R. S. (3d. ed.) 643 « 4, 5. dell 590. I > 1 K. S. (3d. ed 1 643, S G.. 268 jo;w CLERK'S ASSISTANT. river, stream, or lake, any person, or any goods, chattels or eflFeots; 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 ofience 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 the 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 Iqnd on the other side of the stream, imless he is himself the owner thereof, for the purpose of embarking and disembarking passengers.' 1. The pubHc 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 only to the centre of the river * J? OEMS. ^ 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 va. 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 the convenience and accommodation of the public, upon the said laki 1 1 R. S. (3d. ed.) 643, §i 8, 9 ; 5 Johnson, I > 3 Kent's Commentaries (2d ed.> 421 175; 11 Wendell, 590. * 3 Paige, 46. « 1 R. S. (3d ed.) 643, § 10. ' 11 Wendell, 690 FERRIES. 269 or, riTcr:] Wherefore, the imderdgned 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 hy some person other than the owner of the land, insert here: the said C. D., the owner of the land through 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, To Mr. CD.: Sir: You will 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 iu 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 particular description of the site of the ferry. '[ Dated, &c. Yours, &,c., A. B. County, ss: A. B., of said county, being duly sworn, says, that on the day of instant, \or, last past,] he personally served' C. D. vrith 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 . f G. H., Justice of the Peace. § 486. Recognizance. State of New York, I g. County, ) Be it remembered, that I, A. B., of the town of , in said ooimty, do hereby acknowledge myself to be indebted to the people of the State of New York, in the sum of one hundred dollars, to be well and truly paid, if default shall be made in the condition follow- ing: Wheresas, the said A. B. has this day applied to the County Court of the said county of , for a license to keep a ferry upon the lake, [or, river,]in the town of , in said county : Now, therefore, the condition of this recognizance is such, that if the said A. B. shall faithfully keep and attend the said ferry, provided a 'license shall be granted for that purpose, aa aforesaid, with such and ?70 NEW CLERK'S ASSISTANT. so many sufficient and lafe boats, and so many men to work the same, as shall be deemed necessary, together with suiEcient imple- ments for said ferry, during the several hom-s 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 ^ . A. B. [l. s.] open court, this day of , >• 18 , before me. ) P. v., Clerk of County Court § 487. License. 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. H., County 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 comer of lot number , in said town, [or, as the case may he, describing ths 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 coUect 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 raJ;es;'[ and that he shall not take, or require, any greater sum for such fransporta- tion.] P. v., Clerk. * § 488. Certificate of Clerk to Annex to the Oopjf. State of New York, ) . County, f I, P. v.. Clerk of Coimty 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 thfe same is a correct transcript therefrom, and of the whole of such original In testimony whereof, I have hereunto affixed my name, and the seal of the said court, this day of , A- D. 18 . [l. s.] p. v., Clerk. CHAPTER XXI. GIFTS. PBACTIOAL REMARKS. 1. Free gilts, or voluntary conveyances, made understandingly, Kud wiihout fraud, will be upheld. 2. Theie are two Mnds of gifts known in law, viz: gifts inter vi- vos, or those made between living persons ; . and gifts causa mortis, or iho&e 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 vdtle must be passed by some act equivalent to it, as by assignment, or other instrument 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.' 5. Gifts made in expectation of death, wiU 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' : 2 Kent's Commentaries, (2d ed.) 433. I 6 Cowen, 87; 8 Id., 406; 4 Wendell, 300; t > 2 Johnson, 62. Hill, 438. ' 2 K. S. (3d ed.) 195, 5 1; Id., 197, 55 1-3; | « 2 Kent's Commentaries, (2d ed.) 44a 272 NEW CLEEE'S ASSISTANT. FORMS, § 489. Gift of Personal Ustate, hy Deed. Know all men by these presents : That I, A. B., of, &c., in consid eration of the natural love and aflfection which I have and bear for my sister, C. B., and also for divers other good causes and considera- tions, nfe, the said A. B., hereunto moving, have given, granted and confirmed, and by these presents do give, grant and confirm, unto the said C. B., aU and singular 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 them:'\ To have and to hold all and singular the said goods, chattels, and personal estate 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.v 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 an& assigns, against me, the said A. B., my executors, and administrators, and all and every other person or persons whatsoever, shall and wUl warrant, and forever defend. In witness whereof, I have hereunto set my hand and seal, this day of , A. D. 18 . Sealed, signed and delivered, ) A. B. [t. s.] in presence of J G. H. § 490. The Same, of Beal Estate. 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 aflfection 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, Laws of 1847, chap, 465. 1847, chap. 455. | HIGHWAYS. 275 S. 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 bun, in the penal sum of one thousand dollai-s.' 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 bfidgea, within their respective towns.' 3. To regulate the roads already laid out, and to alter such of them aa they, or a majority of them, deem inconvenient: 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 nsei for twenty years, but not recorded, to be ascertained, described, and en- tered of record, in the Town Cleric's office i^ 4. To cause the highways, and the bridges which are or may be erected over streams intersecting highways, to be kept in repair:* 5. To divide their respective towns into so many road districts as they may judge convenient, by writing, under their hands, to be lodged with the Town Clerk, and by him to be entered in the town book; such 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 as they deem necessary, to warn all persons assessed to work on highways, to come and work thereon, with such implements, carriages, cattle, or sleds, as the said Commissioners, or any one of them, 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 3ie 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- Mosures necessary for their use; nor through any enclosed, improved, r cultivated lands, without the consent of the owner, or on the oath of "velve freeholders:)' 9. To render to the board of town auditors, at their annual meeting, 1 account in writing, stating the labor assessed and performed in their > Laws of 1S4S, chap. 180, $ 3. a 1 R. S. (33. ed.) 616, S 1 : 9 Johnson, 349: Id, 452 ; 2 HiU, 467 : 6 Id., 463. a 2 Johnson, 434 ; 24 Wendell, 491. « 17 Johnson, 451 ;'7 Wendell, 474 ; 2 Hill, .». ' 4 Hill, 693. > 1 R. S. (3d. ed.) 628, i 69, et seq.; 4 Paige, 523; 6 Id., 83: 4 Cowen, 190; 5 Wendell, 380; 6 Id., 461 : 7 Id., 264; 13 Id.. 310; 23 Id,, 334, 360; 2 Hill, 443 ; 3 Id., 458. 276 NEW CLERK'S ASSISTANT. respective towns; the sums received by them for fines and commutations, and all other monies received under Title 1 of Chapter 16 of Part I. o{ 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 tJiink 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 Hjghways are required to repair, and keep in order, the highways within their respective districts ; to warn aU per- sons assessed to work thereon ; to cause the noxious weeds on each side of the highway to be cut down or destroyed, out of the high- way work, twice in each year — once before the first day of Jidy, and again before the first day of September; and to collect aU fines and commutation money, and to execute 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 fijrst 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 mMntain and keep in re- pair, at the expense of the town, such guide posts as may have been erected by the Commissioners ; and whenever the moneys received from commutations and fines are not sufficient 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- 1 1 R. S. (3d ea.) 617, § 3. I * 1 R. S. (3d ed.) 017, S S. " 1 R. S. (3d ed.) 617, S 4 ; 1 HiU. 50. i » 1 K. S. {3d ed.) 018, 5 W. » lAWSof 1845,ehap. ISO, §2. [ , HIGHWAYS. 27'7 Bioners, under a wan-ant to be filed in tlie 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, the Commissioners are required to prosecute him for the same: if a complaint be made by a person resident in the town, such person must aive, or ofier, suffi- cient security to indemnify the Commissioners against costs, who are thereupon forthwith to prosecute the Overseer for the offence com- plained of.' 6. Every person owning, or occupymg land, in the town in which he or she resides; every maleinhabitant above the age of twenty-one years, residing in the, town where an assessment is made ; and aU 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 public highivays 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 Ms 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 within 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. T^he 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 year, 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 gospel 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 roU of the town; and upon each tract, or parcel of land, owned by non-residents : aU deficiencies in the number of days' work are to be assessed in the same manner. The Commissioners must also afiix the niunber 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- a 1 R. S. (3a. ed.) 620, 5 19: Laws of 1837 chap. 431: 12 Wendell, 3K. 1 1 R. S- (3d. ed.) 6ir, 618. §66-8; Id., 618, §§ 10-12; Id., 619, § 17; 10 Johnson, 470; 11 , >,.>»h- „', '■■ .....«..., "-". Id., 432; 17 Id., 439; IS Id., 407; 1 Cowen, 8 1 R. S. (3d. ed.)620, § 21, 260; 3 Wendell, 193; 7 Id,, 181; U Id., 667; ' ^9 Id.. 60; 5 Hill, 215. • 27 S NEW CLERK'S ASSISTANT. quired to make copies of each list, to be subscribed by the Commis- sioners, and delivered to tbe Overseers.' 9. At the &st, 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; dpscribing each lot, in the same manner 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 unproved 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. Whenever any non-resident owner conceives himself 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 ^ven by the owner, or agent, to the Commissioners, and the decision of the Judges, or of any two of them, will be final" 10. It is the duty of Commissioners of Highways to credit persons living on private ^oads, 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 liable 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 furnishing 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 doUar for each day ; and twelve and - 1 R. S. (3d. ed.) 620, §§ 20, 23, 24 ; Id., | = 1 R. S. (3d. ed.) 623, § 38 ; Laws of ISSfL 622, § 36 ; Laws of 1835, chap. 164. chap. 154. ' 1 R. S. (3d. ed.) 620, § 22, et seq. : Id., 446, < 1 R. S. (3d. ed.) 624, 55 44, 45. {^U-13 \ ^l B. S. (3d. ed.1 621, M 41, 46. HIGHWAYS. 279 a half cents for every hour any person or his substitute may be in de- fault Every person, ->r substitute, remaining idle, or not working faithfully, or hindering c'^hers from work, is Uable to be fined one dollar for each offence. Ii 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 with the requisition; and one dollar for each day, for omitting to futnish a caa-t, 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 doUars in any one year, in the same manner as other town charges. The elector^ of any town may dhect 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 application 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 public 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, in 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 ma- 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 application 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 twe 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 cotmty, 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 m one year, to build or repair any I 1 R. S. (Sa. ed.) 625, 547, et sea. lt>hnson615; 3Id.,474i 5Id.,123; 10 Id., 470. 280 NEW OLEEK'S ASSISTANT. roads or bridges m such town, and prescribe the time for the pay- ment of the same, which time shall be within ten years, and for assessing 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 discondnued, 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 which 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 ithe tovm, 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 the opposite party, that is, the persons for whom the assessments were made, or the Conmiissioner 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 will 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 juiy is to be drawn, must be served by the person or party asking a re-assessment, on the To^ ii Clerk of the adjoining town ; and at the time and place specified in such notice, said Clerk wiU deposit in a box the names of aR persons then resident of the town, whose names are on the last jury list, and 1 1 R. S. (3d. ed.) 617, J4; Laws of 1832, 1 a Laws of 1845, ehap. ISO: Laws of 1847, ehap. 274 j Laws of 1838, chap. 314 ; 1 Hill, chap. 463. 60 i Laws of 1849, chap. 194. I HIGHWAYS. 281 who are not interested in the lands through whicb 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 withm twenty days from the time of filing the original assessment in the ofi&ce 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 serve 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 writing under their hands. Such verdici 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 applications 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. 455. | Laws of 1847, chap. 455. • Laws of 1847, chap. 465. | * Laws of 1847, chap. 446. 282 NEW CLEEK'S ASSISTANT. dnue, any road, may, at any time 'within axty 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 Mn 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 shah 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 deliver 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 appealing, 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 tJie 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 jury will assess all dams^es 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 C-om- 1 Laws of 1845, chap. 180 ; Laws of 188T, 1 » Laws of 184T, chap. 465. •hap. 45& I ' Iiaws of 1847, chap. 455. HIGHWAYS. 283 misaoners of Highways, tor the laymg out of any road, except pri- vate ...oads, are to be laid before the Board of Supei-visors, by the Supervisor of the town, to be audited Tpith the charges of all per- sons or ofiBcers employed in maldng such assessment; and such damages are to be levied and collected in the town m 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 will be valid, if it appear m such order, that all the Commissioners met and delibirated 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 same or title, but must use their individual names, affixing their official ntie , 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 virtute 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 the public in the road is paid for, the corporation succeeds to all the rights of the town Commissioners, in respect of making repairs, &c.' FORMS. § 491. Appointment of a Commissioner to fill a Vacarua/. County, ) Town of ,p^- Whereas, E. F., duly elected Yor, appointed] a Commissioner of Highways in and for said town, to serve until the day of 1 Laws of 1847, chap. 455. » 4 Hill, 410 ; 6 Id., 47 ; Amended Consti- tution of New York, Art. I. § 7. 3 1 R. &(3d ed.) 641, S 154 ; 22 Wendell, 134. ^ * 4 Hill, 136 J 5 Id., 216 ; 1 Denio, 610. s 4 Barbour's S. C. Rep., 61. » Laws of 1841, chap. affi. ' 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 may Se;] 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 R F., to serve as such Com- missioner, in the stead of the said E. F., imtil the next annual town meeting, to be held in said town, on the day of next Given under our hands, this day of ,18 a' m' /Justices of j;^(thePeai:e. § 492. Commissioner's Bond. Know all men by these presents : That we, E. Fi, L. M., and S. T., of the town of , in the county of , are held and firmly bound unto A. B., Supervisor of said town of , in the penal sum of one thousand dollars, to be paid to the said A. B., and 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 ,] and until a suc- cessor shall be duly elected or chosen : Now, therefore, the condition of this 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 render 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, 1 E. F. in presence of >■ L. M. G. H. ) S. T. I approve of the sureties named in the above bond. Dated at , the day of , 18 . A. B., Supervisor of the town of L. S. L. S. L. S. HIGHWAYS. 283 § 493. Otdsr for Ascertaining a Hood Imperfectly Deccrihed, or not Recorded. County, \ ss: Town of Whereas, a road leading from to , m 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 deUberate 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."] [ijf 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.J Given under my hand, [or, our hands,! this day of A.D. 18 . E. R, Commissioner. § 494. Annual Accowit 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 ia 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, imder the statutes relative to highways, the sum of dollars, as follows, viz : Date. From whom receiTed. On what accomit. Amount received. 18 . ' Jtily6, Oct. 9, John Jones, James Jackson. Balance of money received by him as Overseer, Fine for obstructing highway, {7,83 »5,00 286 NEW CLERK'S ASSISTANT. 3. The improvements which have been made on the, roads ana bridges in said town of , during the said year, are [state 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 necessaiy 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 sijch improvements, beyond what the labor .to be assessed this year will accoinplish, is estimated by me at $ Given, the occupant, or leaving it at his dwell- j of the meeting. HIGHWATS. SOI after due public notice, as required by the statute, certifying that such highway was. necessary and proper; notice in writing, of at ■least three days, was given in due form of law to 0. D. and G. H., the occupants of the land through which such highway is to run, that the undersigned, E. R, the Commissioner of Highways of said town of , would attend at the house of K. P., in said town, on the day of ,18 , at o'clock in the noon, to decide on the appUcation afore- said: Now, therefore, it is ordered, determined and certified, after hearing all the reasons for and against the same, that a pubhc high- way shall be and the same is hereby laid out, pursuant to said ap- plication, whereof a survey has been made, and is as follows, to wit: Beginning, &c., [as in the survey/] and the line of said survey is to be the centre of th6 said highway, which is to be rodsb width. In witness, &c., [as in § 526.] § 532. Affreement as to Damages on Laying Qui Boad} Whereas, a public highway was laid oul^ on the day of ,18 . by E. F., Commissioner of Highways of the town of , in the county of , on the application of L. M., through the enclosed [or, improved ; or, cidtivated] lands of C. D., commencing, &c., [insert the description of the highway as in the order :] Now, therefore, it is hereby agreed between the said Commissioner and the said C. D., that the damages sustained by the said C. D., by reason of the laying , out and opening the said high- way, be liquidated and agreed upon, at dollars. In witness whereof, the said Commissioner, and th^ said C. D., have hereuutp subscribed their names, the day of 18 . E.F, CD § 533. Application of a Commissioner of Highways, to the County Cov/rt, to appoint Commissioners to assess Damages. To the County Court of County: The imdersigned, E. F., Commissioner of Highways in and for the town of , in said county, hereby makes application to i the Commissioner and party interested I a^eement When executed, it is to be filsd cannot exceed one hundred dollars in this | in the office of the Town Cleric 302 NEW CLERK'S ASSISTANT. the County Court thereof, in conformity to tne statute, for the ap- poitment of Commissioners to assess the damages for laying out [or, altering ; or, discontinuing] the highway in said town commencing at the hovj^e of L. M. and terminating on the left bank of the river; the said highway having been so laid out \or, altered; or, dis- continued] by an order made by the undersigned^ on the day of , 18 . Dated the day of ' , 18 E. F., Commissioner of Highways in and for the Town of § 534. Ajp^pomtmerii of Commissioners. 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. H., County Judge : On reading and filing the application of E. F., Commissioner of Highways in and for the town of , in the said county of , it is hereby ordered, in accordance with the terms of the said appli- cation, that G. H., S. T., and L. M., be appointed Commissioners to assess the damages for laying out [or, altering; or, discontinuing] the highway [describe the highway as in the application] mentioned in the said application. E. B. C, Clerk. § 535. Notice to the Commissioners of their Appointment. ToG.H., SjiIT., andL. M.: You are hereby notified that you have been duly appointed by the County Court of the County of , Commissioners to assess the damages for laying out \or, altering; or, discontinuing] the highway \descrihe the highway as in the application;] and that you are required to meet the undersigned at the house of 0. P., in the Town of , in said coimty, on the day of next» [or, instant,] at o'clock in the noon, to take a view of the said premises, and to hear and determine the matter afore- said. Dated, ■ Commissioners. L. M. J § 539. Ifotice of He-Assessment. Sir: Take notice, that I consider myself aggrieved by [or, if the notice is given by a Commissioner of Highways, say: Take notice, that I am dissatisfied with] an assessment of damages made on the • day of , 18 , by G. H., S. T., and L. M., Com- ^^'^ NEW CLERK'S ASSISTANT. missioners for that purpose appointed by the County Court of County, for laying out [or, altering; or, discontinuing] the highway [describe the highway as in the assessment,^ which said assessment is now on file in your office; and that a jury will be drawn by R. P., Town Clerk of the town of , [t/ie adjoining town,'\ at his office in the said town of , on the day of next, [or, instant,] at o'clock in the noon, to re-assess the said damages. Dated the day of ,18 A.B., [or, E. F., Commissioner of Highways m and for the Town of .1 To C. D., Town Clerk of the Town of [or, To Mr. M. B. — the party claiming damages."] § 640. Notice to the Town Clerk of an Adjoining Town to draw a Jury. Sir: You are hereby required, in accordance with the statute in such case made and provided, to draw a jury of twelve jurors, on the day of next, [or, instant,] at o'clock in the noon of that day, to re-assess the damages for laying out [or, as the case may be] the highway, [describe the highway as in the assessment;! the same having been assessed by G. H., S. T., and L. M., Commis- sioners for that purpose appointed by the County Court of County, but I conceiving myself aggrieved by [or, I being dissatisfied with] the said assessment Dated, ( CD. ) against V Counly, County, ss: G. We, the undersigned jurors, summoned by the sheriff 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 dollars, 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 : \descrihe the same .•] which last mentioned piece or 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 E.F., ) G. H., >• Jurors. &c,,&c.,) § 591. Certificate that Property cannot be divided, Supreme Court, A.B. ) against > County, ss: CD. ) We, the undersigned jurors, &o., [as in § 690 to the *, and then add/] ai-e worth more than one thousand dollars, 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. Mtice of Sheriff to he Attached to the Copy of § 691, and Served on the Debtor. Supreme Court, A.B. against CD. Sir: You mil please take notice that the foregoing is a copy of the certificate 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 dollars, be paid to me within sixty days from the date of the service of this notice, the said premi- ses -win be sold, by virtue of an execution issued against you in the above entitled cause." Dated the day of ,18 Yours, &c., R T., Sherift of County. To Mr. C. D. 1 If the surplus is not paid within sixty days, the sheriff may advertise aod sell the premises, as in other cases; and out of Uie proceeds of the sale, he must pay the ezecu- Uan 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 charge* of the sherifi*, mual be deducted irom sucn laalance. CHAPTER XXV. JUSTICES^ COUETS PRACTICAL REMARKS. 1. There are but two kinds of actions in tlie Courts of Justice of this State, whether of record or otherwise, viz : civil and criminal actions.' 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 sum 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 hnndred 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 iefendant, or on all the defendants,^ or in case of the death of some of ' LawB of 1819, chap. 438, (Code of Procedure,) §4 JUSTICES' COURTS. 335 the parties, — or ■where the docket or record of the judgment has 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 the satisfaction of the Justice, exceeds four hundred dollars ; nor of an action against an Executor or Administrator, as suck' 5. Civil actions may be commenced in Justices' Courts, either by the voluntary appearance of the parties, or by process. There are three diflferent 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 joint debtors, one or more of whom reside in the coimty, suit may be commenced against them by long summons.' V. Warrants may be issued in actions for injuries to the person, rights, or property of another ; or for taking or detaining personal property; or for the recovery of money coEected by a public oflScer, for official misconduct or neglect of duty ; or misconduct or neglect ' Laws of 1849, ch. 438, (Code of Procedure) Part I. tills VI., §53; Id., Part 11. title i. § 71. 2 Laws of 1849, chap. 43Si (Code of Pro- cedure.) Part L, titlevi., §B3, sub. 8; 2 R. S. (3d ed.) 342, §§ 114-116 ; 9 Wendell, 669. s Laws of 1849, chap. 438, (Code of Pro- cedure,) Part L, title vi., 5 M. » 2 R. S. (3d ed.) 326. § 12. 13. 6 2 R. S. (3d ed.) 326, 327, 5 14 et soq.j Laws of 1831, chap. 300, {§ 30-33 ; 15 Wen- dell, 652; 16 Id., 33: 17 Id., 617: 3 HiU, 323; Sid., 186; 6Id., 631; 1 Win 17S 2 Id., 95. 336 NEW CLERK'S ASSISTANT. in any professional emplojrment ; subject, however, to the provisions of the statute which restrict the xise of this process to the lollowing cases, viz : Where the defendant is a non-resident ; where it appears to the satisfaction of the Justice, by the affidavit of the applicant, or of 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 plaintiif wiQ be in danger of losing his demand, unless such wai-rant 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 inhabitant 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 him 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 lands 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 aflSdavit is necessary on an applica- tion for a short attachment A long attachment issues, when it is made to appear to the satisfaction of the Justice to whom appUcation is made, that the debtor has departed, or is about to depail, from the county where he last resided, with intent to defraud his credi- tors, or to avoid the service of civil 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, disposed of, secreted, or is about to assign, dispose o£ or secrete, any of his property, with the like intent. The Revised Statutes limit the nature of demands, for which attachments may be sued out, to those existing against the debtor personifly, whether liquidated 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 debt or damages arising upon contract, express or im- plied, or upon any judgment, whether rendered in this State or not The demand; however, must be against the debtor personally. In aE cases, 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- 1 2 R. S. (3d ed.) 327, 328, §§ 18-23 ; Laws | 389 : 7 Id., 434 ; 13 Id.,-48 ; 15 Id., 664 ; 16 nf 1831, chap. 300 ; Laws of 1840, chap. 165 ; Id., 35 ; 17 Id., 61 ; 2 Hill, 296 j 1 Demo, 17b Id., chap, tn ; 2 Cowen, 429 ; 3 Wendoll, j JUSTICES' COURTS. 337 panying the application. The only material difference 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 jud'gment, where one only of the defendants has been served with the process. The proceeding must be dismissed, or a summons issued.' 11. 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, ana proceed in the cause, in Uke 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 Umitations.' 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 J 2R. S. (3d ed.) 328, § ZT etseq.: Laws of 1831, chap. 300, § 34; Laws of 1842, chap. 107; 15 Johnson, 196 ; 3Cowen,206; 6 Id., 234; 10 Wendell, 420: 12 Id., 369; 13 Id., 46,404; 14 Id., 537; 15 Id., 466, 479 ; 20 Id., 77,146,184; 23Id.,336; 24 Id., 485, ; 5 Hill, 264: 6 Id., 311; lUenio, 186. ' 4 Denio, 93. s 2ComBtock, 112. * Laws of 1830, chap. 320. 6 3 Denio, 12. 3 Denio, 12. 338 NEW 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 sufiBciently exphcit 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' 15. A variance between the proof on the trial, and the allegations in a pleading, wUl 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 adjourn- 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 plaintiflF 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 thereof 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 wiU 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 simimons 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 plaintifij without oath, — and so if the defendant appear and do not object; but the defendant may object, and require as a condition of the adjourmnent, that the plaintifif, or his attorney, make oath that he cauHot, for want of some material testimony, or witness, safely proceed to trial. An adjournment on the application of the > Laws of 1849, chap. 438, (Code of Proce- 1 » Ibid., loc. oit. dure.)PanI., title vi, iM. [ 9 ibid., loc. cit. I < Ibid., loc. cic, JUSTICES' COURTS. 339 plaintiff cannot be granted at any otlier time than on the return of a Bummons or attachment, or the joimng of issue without process, except upon an application for a commission, when the plaintiff is entitled to the same time and privileges as a defendant. A defendant may make application for an adjournment, at the time of joining issue, in alJ 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 specijSed 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, on giving security, if required, and proving, by his own oath, or otherwise, that 'he cannot safely proceed to trial, for want of some material testimony, or witness; and that he has used due diligence to obtain such testi- mony, or witness. Where a suit is commenced by a non-resident plaintiff, the &st adjournment is to be not less than three nor more than twelve days, unless the parties and Justice otherwise agree. In no- case cto 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 parties, on his own motion, at the time of the return of a summons or attach- ment, or of joimng 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 setfled 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 vritness, the Justice may issue a com- mission vrithout notice, — ^the interrogatories accompanying the same being proposed by the plaintiff, and settied by the Justice." 1 2 R. S. (Sd. ed.) 335, 336, § 63, et seq. ; 8 Johnson, 426; llId.,4W- 13 Id., 2^; 15 Id., I 492 : 1 Cowen, 112,234, 263 ; 2 Id., 425; 7 Id., 869; 1 Wendell, 464 ; 3 Id., 420; 10 Id., 497; 11 Id., 461,634; 3 HiU, 323 ; 7 Id., 77. ' 12 Johnson,'285 ; 17 Id., 63 ; 3 Hill, 323. 3 Laws of 1838, chap. 243 ; Laws of 1841, chap. 138 Laws of 1847, chap. 32S. 34C NEW CLERK'S ASSISTANT. 21. It must be made distinctly to appear, on an appKcation 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 county, in pursuance of a sub- poena 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 like effect, in every respect, as in the county where the judgment was rendered, except, that it shall be a lien, only from the time of filmg 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 wiU 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 wili the County Clerk, the execution must be issued by him to the Sheriff of the County, and be executed in the same manner as other executions and judgments of the Coimty Court, or, in the city and county of New Yorl^ of the Court of Common Pleas.' 1 7 Hill, 77. ' 2 K. S. (3d. ed.) 337, & 81, et oaq: »3Denio, ]2. 1 2 Comstock, 134. 'SDenio, 13. • Laws of 1849, chap. 438, (Code of Pn>co< dure. Part I., title vi., § 63. 1 1bid., Fait I., title rii., § 68. ' Ibid., Fan I., title vi., § 61. JUSTICES' COURTS. 311 _ 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 ; ttie 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 suflS- cient time to advertise and sell under it." 81. The docket of a Justice is good evidence before himself, with- out proving its identity, or showing his oflScial 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 ncndered before them will be barred by the statute of Imitations, 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 civil actions similar to those in which Justices of the Peace have jmisdiction; 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 himdred dollars.' 35. Justices of the Peace have power to issue process for crimes committed in the coimty where they reside, but not for those com- mitted in another county, even if the oflFender be in the county where the Justice resides.' 36. Courts of Special Sessions are to be held by a single magis- trate, and aU 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 provi^on.' ' 2R. S. (3a. ed.) 347, § 144. « 1 Denio, 574. « 1 Denio, 432. » 1 Denio, 184. • 4 Barbour's S. C. Rep., 442. a Laws of 1849, chap. 438, (Code of Froc* dura,) Part I., title vii., 65 66, 67. ' 6 Hill, 164. « Laws of 1845, chap. 180, 55 15,26 342 HEW CLERK'S ASSISTANT. FOEMa § 693. Summons} Town of ,)gg. County, ) To any Constable of the said County, greeting: The people of the State of New York conunaud you to summon A. B. to appear before me, the undersigned, one of the Justices of the Peace of the town aforesaid, at my of&ce, [or, as the ease Tnay Se,] 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 caitse of action may 5e,] to his damage one hundred dollars or under. And have you then there this precept Witness my hand, the day of , 18 . J. H. B., Justice of the Peace. § 694. Affidavit for Short Summons by 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 judgment 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 pimish 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 security, according to the statute. Sworn to, this day ) C. D. of , 18 , before m6, j C. C, Justice of the Peace. § 595. Affidavit for Short Summons against NoiirBesiderU Defendant. County, ss: C. D., being duly sworn, &c., [as in § 594 to the *, and then • A Ivng summons must be made returnable I in not less than two, nor more than four days. ^ not less than six, nor more than twelve days In computing the time, the day of the date is from the date thereof; and a short summons I tr bo excluded, and the return day included. JUSTICES' COURTS. _ 343 add:] and that the said A- B. resides in the county of and out of the said county of ; and this deponent prays H short summons against the said A. B. C. D Sworn, &c., [as in § 694.] § 596. Description of Parties suing in a Particular 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. JExecutors. — 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., Sheriflf of the county of Assignee of Insolvent Debtor. — A. B., assignee of E. R, 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 himse&, as for the Overseers of the Poor of the town of , m 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 said county of , but a resident of the county of ; or, that he, the said C. D., is a non-readent of said county, and a resident of the county of , and is vriUing to give security for the payment of any sum whicli may be adjudged against birn in any siiit to be commenced hereupon; or, that the said 344 HEW CLERK'S ASSISTANT. A. B. lately informed E. R, in the presence of tliis deponent, that he was about to depart from said coimty of , with intent not to return thereto, [or stale other facts and circumstances showing such intentionji or, that this deponent wiU, 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, &c., [as in § 694.] C. D. § 598. Affidavit for Warrant, in an Action on Contract. County, ss : C. D., being duly sworn, says that he has, as he verily b'elieves, 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 pi'ofessional employment as an attorney-] And this deponent further says, that the said A. B. is a non-resident of said county of, &c., [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. County, 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 d. D., a non-resident of said coimty, for a warrant, [or, short summons,] in his favor against A. B., in aa action arising on contract, [or, as the cause of action may be:] E. F. thereupon personally came before me, and acknowledged fliat 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 C. D., in the suit to be commenced by the said warrant, [or, short summons.] H. T. C, Justice, Before G. H., Esq., cue of the Justices of the Peace A. B. ) of the county of : County, ss : E. F., being duly sworn, says that he is a housekeeper, [or, free- holder,] now actually residing in the town of , in said county; and that he is worth two hundred dollars over and above what will pay all his debts. E. F. Sworn, (fee, [as in § 594.] JUSTICES' COURTS. 349 § 611. Complaint in an Action arising on Contract. In Justice's Court, •^ ?\ } Before C. C, Esq. against }■ ^ i ■ * ^ A j\ \ Complaint A. B., plaintiff, complains that C. D., defendant, owes and is indebted to him in the sum of one huhdred dollars, for goods, waies and merchandise, sold and delivered to [or, for work and labor per- formed for] the defendant, on the day of , 18 , [or, at various times between the day of , 18 , and the day of , 18 ,] whereupon the plaintiff demands judgment against the defendant for the one hundred dollars, [add here, with interest from the day of , 18 , j^ necessary.] A. B., Plaintiff § 612. Complaint for Injuring Personal Projperty. In Justice's Court, ^^\ ) Before C. C, Esq., '^^'^ J Complaint A. B., plaintiff, complains that C. D., defendant, carelessly and violently ran against the carriage of the plaiatiff, 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. Cmvplaivi for Breach of Warranty. In Justice's Court, -^ ?• , } Before C. C, Esq. agaimt J 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 tie said horse is blind of the right eye, is vicious and imruly, and not true in the harness, whereby he is injured to the amount of fifty dollars; whereupon the plaintiff demands judgment against the defendant for the fifty dollars. A. B., Plaintiff 350 NEW CLERK'S ASSISTANT. § 614. Complaint for Fraud or Deceit. In Justice's Court, ^■?\ ) Before C. C, Esq. against V „ i • ^ ^ ?, -p. ( Complaant 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 Cpnversion of Personal Property. In .Justice's Court, ^- ?\ \ Before C. C, Esq. aqainst >• „ i • j. ^ ?, -^ 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 doUars, 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. A. B., Plaintiff. § 616. Oomplamtfor Injury to Real Property. In Justice's Court, ^- ?\ \ Before 0. 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 da;mage to the amount of fifty dollars, and he demands judgment against the defendant for the same. A. B., Plaintiff . JUSTICES' COURTS. 351 § 617. Complaint ly an Assignee. In Justice's Court, 4i« Before CO., Esq. Q jj I Complaint A. B., plaintiff, complains that C. D., defendant, was indebted to G. 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; vrhereupon the plaintiff demands judgment against the defendant for the one hundred dollars. A. B., Plamtiff § 618. Answer of Defendant, In Justice's Court, ^■^\ ^ Before C. C, Esq. against V . > i g J) 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, ^^\ I Before C. C, Esq. agaii^t ^ ^.^g,. C. D., the defendant, answers to the complaint that he did not take, and does not detain the property, \or, £d noi break and enter the close,] mentioned in the complaint, as is therein stated ; and he gives notice that he will 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 of the Peace of said county, m favoi' of G. H., and dated on the day of , 18 .] C. D., Defendant 352 NEW (JLERK'S ASSISTANT. § 620. Oath on Application for an Adjournment} You do swear, that you •will true answers make to such questions as shall be put to you, touching the necessity of an adjoumment 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 aa surely for A, B., on his application to adjourn this cause. § 622. Examination of Witness, on the Applitation 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, CD 1 aa'ainst i Before G. H., Esq., one of the Justices of the f -p 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 plaintiff, says : [set forth the testimony.'] Sworn, (fee, [as in § 694.] L.M. Town of , ) I 623. Subpoena. County, The People of the State of New York, to E. F., L. M., &c., Ac, 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 undersigned, one of the Justices of the Peace of the said town, at his office in , in the said county, on the day of , at o'clock in the noon, then and there* to testify those things which you or either of you know. For other forms of oaths, see those given in Chapter XI. JUSTICES' COURTS. 353 in a certainf action now depending before the said Justice, between C. D., plaintiff, and A. B., defendant, on the part pf the defendant [or, plaintiff.] [i/" 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, &c., 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 Peace. § 624. Subpoena for Witness to make Affidavit for Attachmeni. 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 things which you, or either 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 ,|^gg. County, ) Thp PcopI'^ ice, [as in g 623, to the f, and then add:] 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.] Her? 0^ (fee, [as in § 623, to the end.J § 626. Affidavit of Service of Subpoena. County, ss: G. 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 subpesna 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 said L. M., is a 354 NEW CLERK'S ASSISTANT. 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, (fee, [as in § 594.1 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 Witnest. 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 , forthwith, [or, as the case may be,] to testify those things which he may know, in a certain cause now depending before the said Justice, between C. 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, haying been duly subpoenaed to attend the trial of said cause, has refused [or, neglected] to attend in conformity to such subpoena; and have you then there this precept Witness, (fee, [as in § 623.] § 629. Notice of ApplicaMon for a Commistion. CD. 1 against > Before Q. 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 to 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, will be made to G. H., Esq., at his office m the town of , on the day of f 18 > at o'clock in the noon. Dated , the day of , 18 . C D.,Plaintifll To A. B., Defendant JUSTICES' COURTS. 355 § 630. Oath of Service of Notice. . '. v.'iy tint yon wil] true answers make to sucli qtipstiona aa shall be put to you, toucMug thu service of notice of an application for a commission in tMs cause. § 631. Oath on applying for Commission. You do swear, that you will true answers make to such questions as shall be put to you, touching the necessity of issuing a commission in this cause. § 682. Com/mission.^ 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 R. P., of the of , aforesaid, is a material witness in a certain action now depending before me, between C. D., plaintiff, and A. B., defendant: Now, therefore, confiding in your prudence and fidehty, 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 writing, and signed by such witness and yourself, and return the same, annexed hereto, to me, enclosed under your seal. Given tmder my hand, at the town aforesaid, the ■ day of , 18 . G. H., Justice of the Peace. § 633. Commissioner's Svmmons to Witness. County, ss: Whereas, the undersigned has received a commission, issued by G. H., Esq., a Justice of the Peace of the county of , directed for the examination of K P., a witness in a cause depending before the said Justice, between C. D., Plainti^ and A. B., defendant: You, the 1 Where a commission is issued to a person not familiar witli our laws, it would be well to annex to the commission a copy of § 16, of Art. 2 of title 3, of Chap. 7, of part 3 of the Re- vised Statutes^ in the same nia;.ier as in th« case of commissicns issued out of courts of record. 356 NEW CLERK'S ASSISTANT. said K P., are therefore reqxiired. to be and appear before me, the said Commissioner, at my dwelling house, la the town of , on, (fee, then and there to be examined, and to testify the truth, ac- cording to the best of your knowledge, for and on behalf of the said plaintiff, [or, defendant,] and herein you are not to fail Dated the day of , 18 . § 634. Oath to Witness Examined on a Commission. 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 him, 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., plaintiff and A. B., defendant, shall be the truth, the whole truth, and nothmg 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 8. 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 C. D., plaintiff, and A. B., defendant The said K P. deposes as follows : To the first interrogatory, he saith, [give answer of witness.^ To the second interrogatory, he saith, &c. E. P. Subscribed and sworn before me, ) this day of ,18' .) S. T., Commissioner. § 636. Endorsement of an Exhibit produced before the Oommta- sioner. On the day of , 18 , at the execution of a commis- sion 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. 8. T., Commissioner. JUSTICES' COURTS. 357 § 637. Venire. Town of , ) County, P®- 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 mentioned, 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., plaintifl^ 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, &c., fas m § 623.] § 638. Oath on Objection to Constable's Serving the Venire. You do swear, that you will true answers make to such questions as shall be put to you, touching the reasons why H. C. should not execute the venire in this cause. § 639. Juror's Oath.' You do swCar, well and truly to try the matter in difference De- tween C. D., plaintiff, and A. B., defendant, and, unless discharged by the Justice, a true verdict give, according to the evidence. § 640. Oath of Witness. You do swear, that the evidence you shall give, relating to this matter in difference between C. D., plaintiff, and A- B., defendant, shall be the truth, the whole truth, and nothing but the truth Ifor other fonne of oaths, aeethom preTiouBly given, in Chapter XI, 85g NEW CLEKK'S ASSISTANT. § 641. Constable's Oath on Retiring with Jmy. You do swear, in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors on this trial, together, in some private and convenient place, without any meat or drink, except such as shall be ordered by me ; that you wiU not suffer any communication, oraUy or otherwise, to be made to them; that you will not communicate with them yourself, orally or otherwise, unless by my order, or to ask them whether they have agreed on their verdict, until they shaU be discharged : and that you will not, before they render their verdict, commimicate to any per- son the state of their deliberations, or the verdict they have agreed on. ^ 642. Confession of JvdgmemL In Justice's Court, CD. i against \ 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 be\ to the plaintiff in the above entitled action, for dollars, and consent that the said Justice enter the same against me accordingly. Dated the day of , 18 . A. £. § 643. Affidavit where the Confession is for a Sum exceeding Fifty JboUars. County, ss: We, C. D. and A. B., the parties named in the foregoing for, 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 ot dollars, over and above all just demands which the said A B. has against the said C. D. ; and tiiat the above [or, annexed]con- fession is not made, or taken, with a view to defraud any creditor. Subscribed and sworn, before me, ) C. D. this day of , 18 . f ' A. B G. H., Justice, dec. JUSTICES' COUETS. 359 § 644. Transcript of Judgment.. In Justice's Covirt, CD. ) 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 hei] and that E. F. and 0. P were the witnesses sworn on the part of the plaintiff therein. Dated the day of , 18 . G. H., Justice, &c. § 645. Hxemtion. Town of ,) , Coimty, J 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 amoimt 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 plamtiff: and have you then there this precept [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 tiim to the common jail of the said county, there to remain until this execution shall be satisfied and paid.] Witness my hand, the day of , 18 . G. H., Justice of the Peace. DamageB, Costs, Judgment, Poundage, Amount, S60 NEW CLERK'S ASSISTANT.' § 646. Renewal of Execution. The wiihin 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 I'eace. County, ss: A. B., of said county, being duly sworn, says, that on the day of , 18 , one C. D., of the town of , in said county, did threaten to beat and wound [or, MSI, or as the ca^e may 5e,] him, the said A. B. ; and that he hath just cause to fear that the said C. I), will beat and wound \or. Mil, as the case may ie] him, the said A. B. ;* wherefore this deponent prays that the said offender may be boxmd by recognizance, to answer the 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 Warrwnt, Town of ,) . County, f 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 § 594.] § 684. Complaint for Burglary in entering Store. County, ss : A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in 372 NEW CLERK'S ASSISTANT. said County, one R D. did feloniously and burglariously break and ent» r the store of the said A. B., there atuate, by [describe the man- ner,'] in which goods and merchandise were then kept for sale, with intent feloniously to steal, take and carry away, the goods and chattels of the said A. B. therein, to wit, the goods and merchandise afore- said, or some part or portion thereof. Sworn, &c., [as in § 594.] § 685. Complaint for Constructive Burglary. County, ss: A. B., of said county, being duly sworn, says,* that on the ilay of instant, [or, last past,] at the town of , in «aid county, one R D. did feloniously and burglariously break and enter the dwelling house of the said A. B., situate in said town, by knocking at the outer door thereof, and demanding to speak with the said A. B., and, upon the said A. B. opening the door for that purpose, rushing and entering into the said dwelling house, with in- tent to rob the said A. B. of his goods and chattels, in his presence and against his will, by force and violence to his person; the said A. B. and his family being at the time in said dwelling house. Sworn, &c., [as in § 594.] § 686. Complaint for Forgery. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did falsely and feloniously forge and counter- feit [or, alter,] a certain paper writing, being, or purporting to be, a will [or, deedj by which a right or interest in real or personal pro- perty was, or purported to be, transferred, with intent to defraud the said A. B., [or, a certain paper writing, purporting to be, a certificate of the acknowledgment of the execution of a certain deed or convey- ance from the said A. B. to S. T., of certain lands situate in said county, before one G. H., a Justice of the Peace; which said deed or conveyance was of a nature, or proper, to be recorded according to law, with intent to defraud the said A. B. ; or, did falsely and felo- niously make, forge and coimterfeit, a certstin promissory note, pur- porting to be the promissory note of the said A. B., for tiie payment of dollars to C. D., thirty days after date» with intent to de fraud the said A. B.] Sworn, (fee, [as in § 694.] JUSTICES' COURTS. '373 § 687, CampltdrU for Passing, or Offering to Pass, ComUerfeit Bank Notes. County, ss: A. B., of said County, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , b said county, one E. D. did feloniously sell and exchange, [or, offer to sell and exchange,] to and with the said A. B., for a valuable con- sideration, to wit, the sum of ten dollars in silver coin, \or, goods and merchandise of the value of ten doUars,] two forged and coun- terfeit negotiable notes, commonly called bank notes, purporting to be the promissory notes oft and to have been issued by, the Bank, for the payment of the sum of five dollars each ; he, the said R. D., well knowing the said bank notes to be forged and counter- feited, and with the intent to deceive and defraud the said A. B. Sworn, &c., \as in § 694.] § 688. Complaint for Altering or Gomiterfeiting Bank Notes. Coimty, ss : A B., of said county, being duly sworn says,* tha,t on the 'day of instant, [or, last past,] at the town of , in said county, one K D. did feloniously counterfeit, [or, counterJfeit and alter,] a certain bank or promissory note, purporting to be the promissory note of, and to be issued by the Bank, for the payment of the sum of ten dollars, \jf the charge is for altering a note, insert here: in such a manner as to make the same resemble and purport to be a bank or promissory note for the payment of the sum of one hundred dollars,] with intent to defraud the said bank, or some person or persons, or body politic or corporate, to this deponent imknown. Sworn, &c., [as in § 594.] § 689. Oomplairtt for Obtaining Property by a False Token, or by Falsely Personating Another. County, ss: A B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one K. D. did designedly, falsely, and feloniously, by color of a certain false token or writing, [or, counterfeit letter,] ob- tain from the said A. B., certain goods and chattels, of the value of dollars, to wit : [describe the property f\ [or, did falsely 374 NEW CLERK'S ASSISTANT. and feloniously personate and represent himself to be one C. D., and did then and there, and in such assumed name and character, obtain a certain horse of the value of dollars, intended to be deliv- ered to the said C. D.l Sworn, (fee, [as in § 594.] § 690. Complaint for Ohtaining Money, or Property, hy False Pretences. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R D. did designedly and feloniously, and by the false pretence that he, the said R. D., was sent and authorized by one C. D., [or, that he owned a farm, containing one hundred acres, or thereabouts, situate in the town of , in said county, free of all incumbrances ; or, that he was worth dollars, after the payment of all his debts and liabilities; or, that he owned and was possessed of personal property to the value of dollars, and was not a householder, or man of family, whereby the same would' be exempt from execution against him ; or, that he was entirely free and clear from all debts and liabilities, of every name and descrip- tion,] demand and receive \or, obtain on credit,] from the said A. B., a large sum of money, to wit, the sum of dollars, [or, goods and merchandise of the value of dollars,] with the intent to cheat and defraud the s^d A. B. Sworn, (fee., [as in § 594.] § 691. Complaint for Bolibery. 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 violentiy and feloniously make an assault upon him, the said A. B. ; and, by putting him, the said A. B., in bodily fear and danger of his life, did then and there steal, take and carry away, &c., [describe property taJeen^ Sworn, &c., [as in § 594.] § 692. Complaint for Umbesslement Cotmty, 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' COURTS. 37& county, one E. D., bemg a servant [or, clerk] of the said A B., and not being an apprentice, nor within the age of eighteen years, did feloniously embezzle, and convert to his own use, without the consent of the said A. B., [describe propertyi\ belonging to the «aid A. B. Sworn, dtc, [as in § 594.] § 693. Complaint for Receiving Stolen Goods. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , m said county, one R D. did feloniously receive or buy, of one 0. P., certain goods and chattels, to wit: [describe the property i\ he the said R D., well knowing the said goods and chattels to have been feloniously stolen and taken from him, the said A. B. Sworn, &c., [as in § 594.] § 694. Complaint for Perjv/ry. County, ss: A. B., of said county, being duly sworn, says,* that in a certain action at law, tried on the day of instant, [or, last past,] at the town of , in said county, before H. R F., Esq., one of the Justices of the Peace of the said ceunty, in which the said A. B. was plaintiff and one C. D. defendant, the said Justice having jurisdiction over the said action, and full power and authority to try the same, and to administer oaths to aJl witnesses sworn upon such trial, one R D. was produced as a witness on the part of C. D., the defendant aforesaid, and was duly sworn to speak the truth, &c., [follow the language of the oath administered r^ and that the said R D., being interrogated as such witness, whether the said A. B. was at the dwelling house of the said C. D., on the day of ,18 , which inquiry was material and pertinent to the issue joined in the action aforesaid, did the» and there, to wit, at the time and place aforesaid, falsely, wilfully and corruptly, depose and swear, that the said A. B. was at the dwelling house of the said C. D., on the said day of . , 18 , whereas, in truth and in fact, the said A. B. was not at the dwelling house of the said 0. D., on the said day of , 18 ; whereby the said R D. did then and there, to wit, at the time and place aforesaid, wil- fully and corruptly swear falsely, and commi*- wUfuI and corrupt perjury. Sworn, &c., [as in § 594.] 376 NEW CLEEK'S ASSISTANT. § 696. Complaint for Bigamy. County, ss: A. B., of said county, being duly swoni, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R D., being then married to M. D., did wilfully and feloniously marry and take to wife, one E. B. ; the said R D. well knowing that his said former wife, M. D., was then living and ia full life. Sworn, &c., [as in § 594.] § 696. Complaint for Marrying the Wife of Another. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R D. did knowingly, unlawfully and feloniously, marry, and take to wife, one M. R, she being then married, and the wife of R R Sworn, &c., [as in § 594.] § 697. Complaint for Mididous MiscMef. 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 maliciously administer to a certain horse, the property of the said A. B., a certain deadly poison, called arsenic, by mixing the same with the food of the said horse. Sworn, &c., [as in § 594.] § 698. Complaint for Malieioiis Trespass, or for OirdUng Trees. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at die town of , in said counly, one R. D.. did wilfully, maliciously and unlawfully, cat down and destroy [or, wilfully and maliciously girdle,] certain grow- ing trees, situate on the land of the said A. B., in sai^ town Sworn, &c., [as in § 594.] JUSTICES' COURTS. 377 § 699. Comiplami for Procuring Abortion. County, ss: A. B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R D. did wilfully and unlawfully administer a cer- tain drug called " savin," [or, did use and employ a certain instru- ment called a "forceps,"] on the body of E. M., she being then regnant, with intent thereby to procure the miscarriage of the said Sworn, &c, [as in § 694.] I § 700. Complaint for Making an Affray. Cotmty, ss: A. B. of said county, bemg duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, one R. D. did, in a tumultuous manner, make an aflfray, wherein one R B. was assaulted, beat and abused, by the said R D., without any just and reasonable cause. Sworn, &c., [as in § 594.] § 701. Complaint for Cruelty to Animals. 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 cruelly and maliciously kill [or, maim; or, beat and torture] a certain bay gelding horse belonging to him, the said R D., [or, to one 0. D.l Sworn, &c., [as in § 594.] § 702. Complaint for a Bovt, or Riot. County, ss: A, B., of said county, being duly sworn, says,* that on the day of instant, [or, last past,] at the town of , in said county, R D., D. D., A D., &c., &c., did unlawfully, tumultu- ously and routously, assemble together, to the manifest terror and disturbance of the citizens then and there being, with an intent mu- tually to assist each other, against all who should oppose them, in the execution of a certain enterprise, to wit, the assault and beating of one T. M., with force and violence, and against the peace : and being 60 assembled, together with divers other persons unknown, they did, 378 NEW CLERK'S ASSISTANT. afterwards, to wit^ on the day and at the place aforesaid, proceed in a noisy, riotous and tumultuous manner, towards the house of the said T. M., m order to assault and beat Hm, the said T. M. ; \if the assault was committed, add: and did then and there violently and maliciously assault and beat the said T. M.] Sworn, (fee, [as in, § 594] § 703. Complaint for Selling Unwholesome Food. 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 coimty, one R D. did knowingly, unlawfully and wickedly, sell to one M. B., a quarter of lamb, which had become tainted and unwhole- some. Sworn, &c., [as in § 594] § 704 Complaint for Disturbing a Religious Meeting. County, ss: A. B., of said coxmty, being duly sworn, says,* that on the day of instant, [or, last pasi,] at the town of , in said county, one R D. did wilfully and unlawfully disturb, mterrupt and disquiet, an assemblage of people, collected for the purpose of re- ligious worship, by loud and profane discourse, [or, by rude and riot- ous noises; or, by rude and indecent behavior.] Sworn, (fee, [as in § 594] § 705. Complaint to Obtain a Search Warrant. County, ss: A. B., of said county, being duly sworn, says, that certain personal property of the said A. B., [or, of one C. D.,] to wit: [describe the property f\ of the value of dollars, or upwards, was stolen and feloniously taken from his dweffing house in the town of , in said county, on the day of instant, [or, last past:]* and that this deponent suspects that R D. has stolen and taken the same as aforesaid; and that the said property, or a part thereof, is now concealed in the dwelling house of the said C. D., in the said county ; wherefore process is applied for to search the same. Sworn, &o., [as in § 594] JUSTICES' COURTS. 379 § 706. Search Warrant. Comity, ss: To the Sheriflf of said County, or to any Constable of tlie Town \or, City] of , in said County, greeting : Whereas, A. B. has made complaint^ upon oath, before me, J. H. B., one of the Justices of the Peace of the said county, that, &c., \as in § 705, to the *, and then addx] and that he suspects that K D. did steal and take the same, as aforesaid ; and that the said pro- perty, or a part thereof, is now concealed in the dwelling house of the said R D., in said county : Therefore, the people of the State of New York command you to search the place where the said property is suspected to be concealed, in the day time, [or, as well in tiie night time, as in the day time,] and that you bring the same before me. Witness, &c., [as in § 648.] § 707. Oath of Complainant, or Witness on Complaint. You do swear in the presence of Ahnighty Glod, that you will true answers make to such questions as shall be put to you, touching this complaint against C. D. § 708. Recognizance in Justices' Cowrts. Stateof New York, >g. County, \ We, C. D. and E. R, of , in said county, acknowledgo ourselves to be severally indebted to the people of the State of New York; that is to say: the said C. D. in the sum of dollars, and the said E. F. in the sum of dollars, to be well and truly paid, if default shall be made in the condition following : The condition of this recognizance is such, that if the said C. D. shall personally 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, &c., {state the com- plaint,'] and to do and receive what shall, by the court, be then and j&iere enjoined upon him: [if the recognizance is entered into hy 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 p'.rticularly towards A J560 NEW CLEEK'S ASSISTANT. B., and otiat aU that part of the form between the two *»,] then this recognizance to be void; otherwise of force. Taken, subscribed, and acknowledged, ) C. D. [l. s.] the day of , 18 , before me, J E. F. [l, 8.1 G. H., Justice, <&c. § 709. Record of Oonviction et Special Sessions. State of New York,) g. Coimty, 3 Be it remembered, that at a Court of Special Sessions, held y the undersigned, a Justice of the Peace of the said county, this day of , 18 , at his office in the town of ■ , in said county, 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] distinctiy read to the defendant in open court, to which he plead not guilty, [or, guilly :] whereupon such proceedings 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 judg- ment may be.] In witness whereof, I have hereunto subscribed these presents, the day of , 18 . G. H., Justice of the Peace. State of New York, , ' '■ BS § 710. Commitment from Speaid Sessiona. County, ) To any Constable of the said County, greeting: At a Court of Special Sessions, duly held by the underagned» dec, [as in § 709, to the *, and then add ;] and the court having rendered jui^ment thereon, that the said C. D., ifec., [as the judgment may be;\ Therefore the people of the State of New York command you to convey the said C. D. to the common jail of the said county, the keeper whereof is hereby required to keep him in safe custody in the oaid jail, until the judgment so rendered be satisfied, or he be dis< charged by due course of law. Witness, &c., \as in § 648.] CHAPTER XXVI. LANDLORD AND TENANT. PRACTICAL MARKS. 1. The relation of landlord and tenant esdsts, wherever there is a contract for the possession and profits of lands or tenements, on one side ; and a recompense, by payment of rent, or some reciprocal con- sideration, on the other. The contract is called a lease, or demise, and may be for life, for a term of years, or at the -will of one of the parties. If the lessee, or tenant, parts with any portion of the term, the contract assigning such portion is called an underlease.' 2. The law will imply a tenancy, from the mere occupation of pre- mises, pending the execution of a lease; or an occupation and payment of rent under an invalid agreement ; or where a tenant for years holds over after the expiration of his term, with the landlord's consent; or from the mere payment of rent, where it bears any reasonable proportion to the value of the premises. And where the tenant continues in possession for two weeks after the expiration ot his term, though alledging that he does not intend to remain, the landlord may regard him as a tenant for another year, if he thinks proper to do so.' 3. A bargain for rooms in a boarding-house is not a lease.' 4. Leases for a year, or any less time, may be made by a verbal agreement; in all other cases, they must be in writing, and if for life, executed under seal, and in the presence of a witness.* 5. A covenant to pay rent, founded upon a lease for five years, not reduced to writing, is void for want of consideration.* 6. A lease of three years, or for any longer period, must be recorded m the county where the premises are situated, in the same manner as conveyances of real estate ; otherwise it is void as against 1 7 Cowen, 326. I « 2 R. S. (3 d ed.) 22, S 137 ; Id IM, 5 8 : 16 > 4 Coven, 3.50, 473 , 1 Denio, 113, Wendell, 465 ; 21 Id. , 492 ; 10 Paige, 393. 537. 8 1 Denio, 602. » 7 Hill, 83. 382 NEW CLERK'S ASSISTANT. a subsequent purchaser in good faith, and for a valuable considoratioa Leases for life or lives, or for years, in the counties of Albany, Ulstei, Sullivan, Herkimer, Dutchess, Columbia, Delaware and Schenectady, in the State of New York, need not be recorded.' I. 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 prevdls 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 oflSce of a notary.' 8. A lease for years, without saying how many, is good for twc 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 a" a surrender of a former lease.' II. The interest of a tenant under a lease executed by a mortga- gor, subsequent to the execution of a mortgage, is extinguished by <• foreclosure and sale under such mortgage." 12. Where a fraudulent representation is'made by a landlord, di. to the property demised, or the extent of his rights, the lessee is ta- titled to a deduction from 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.' 15. There are four kinds of leases — -for life or lives, for years, at will, and by sufferance. A tenant at wiU is one who occupies under an agreement 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 to be paid daily, it creates a tenancy at wiU. A notice to quit terminates a tenancy at wiU, and turns it into a tenancy from year to year. Where a tenant holds over after the expiration of his 1 2 R. S. (3d ed.) 40, §1 ; Id., 47. S 5 44, 49 ; ' Wendell, 485; 6 Id., 213; 8 Id., 2«). s 4 Kent's Comnientariea, (2d ed.) 451. >2R. S. (3ded0 29,&l. * 2 Barbour's S. C. Rep., 180. > 2 Barbour's S. C. Rep., 180. < 3 Denio, 214. T 1 Comsto(!k, 305. • 2 Comatock, 135 • 2 Comstock, 391 LANDLOED 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 like 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 jdeld pos- session at the time specified in his notice, he is liable 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 the 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, jis 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 repeal that under the Kevised Statutes ; the former is merely an additional mode.' 22. A tenant or under tenant o^ his assigns or legal representar tives, may be removed from any premises occupied by him, by any 1 4 Johnson, 150; 4 Cowen, 349 ; 11 Wen- dell, 619 ; 23 Id., 616. 3 Amended Constitution or New York, Ar- ticle I., ^i 14, IS. > 2 E. k (3d ed.) 30, 55 7-9; 11 Wendell, 616. * 4 Kent's Commentaries, (2d ed.) ilU 113; 1 Johnson, 322; 8 Cowen, 13. > 4 Kent's Commentaries, (2d ed.) 113. • Laws of 1846. chap. 274. ' 2 Barbour's S, C. Hep., 316. 384 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 Eecorder 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- marv removal of the tenant for non-payment of rent' aiy tenant, being in arrear for rent^ desert the demised premises, and leave the same unoccupied and imcultivated, 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 afiSx 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 possesion, 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 ofiScers 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. (3d ed.) 603, § 28 ; Laws of 1849, chap. 193 ; 6 Cowen, 448 ; 8 Id., 63 ; 6 Wen- dell, 281 ; 9 Id., 227 ; 11 Id., 616 ; 15 Id., 226 : 17 Id., 464 J 19 Id., 103 ; 21 Id., 687 : 1 Hill, B12 ; 6 Id., 314, Mff i 1 Denio, 190. > SDerao, 492. > 2 R. S. (3d ed.) 603, S§ 24, 25. < 2 R. S. (3d ed.) 699, $ 1, et eeq. ; 8 John son, 464; II Id., 604; 13 Id., 40; 8 Coven 226; 4 Wendell, 213; 9 Id., 60; il Id. 1S7 I Hall's Superior Court Rep ,240. LANDLORD AND TENANT. 385 fact of the agency m positive terms; it will not answer merely to describe the person as agent' FORMS. §711. Landlord's Certificate of Beniing. 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, lid 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 all taxes and as- sessments, where the tame are to he paM by the tenarU.'l A.B. § 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 dame 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 wiU permit, damages by the elements excepted* Given under my hand and seal, the day of > 18 - In presence of ) C. D. [l. &] G. a f § 713. Seewnty 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 above 1 1 Denio, 71. 380. NEW CLERK'S ASSISTANT. \ratcen agreement mentioned, to be paid and performed by C. D., as therein specified ; and if any default shaB at any time be made therein, I do hereby promise and agree to pay unto the landlord in said agreement named, the said ren^ or any arrears thereof that may be due, and fuUy satisfy the conditions of the said agreement, and all damages that may accrue by reason of the non-fulfilment thereoi^ without requiring notice or proof of demand being made. Given under my hand and seal, the day of , 18 . E. F. [l. a] §714. Landlord's Certificate, where Tenant is Not to Underlet, or Occupy for any BiwmssB deemed Extra Hazardous. This is to certify, that I, C. D., have let and rented unto A. B., the prenaises 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. § 715. 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 penalfy of forfeiture and damages. Given, &c., [as in § 712."] § 716. Tenant's Agreement, Umiracing a Pledge of his Property, as Security. This is to certify, that I, A. B., have hired and taken from C. D., the premises known as mmiber , in street, &c., [as »w § 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 imder execution or not, to the faithful performance LANDLORD AND TENANT. 387 of these covenants ; hereby authorizing the said C. D., or his 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 ot 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. S.J § 7l7. Landltird's Certificate, rmder the Exemption Act o/1842. This is to certify, • C. D. [l. s.J G. H. ) LANDLORD AND TENANT. 380 § 720. Lease and Chattel Mortgage, This agreement, made the day of , 18 , between A, 6., of, &o., of the first part, and C. 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 taie,, and hereby does take, all the premises known as number 347, street, 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 enter the said premises at all reasonable hours in the day time, to make such repairs and alterations as may be necessary for the preservation thereof and to exhibit the same to persons wishing to rent, after tlie 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 busiaesa deemed extra-hazardous, without the written consent of the said A B., or his agent And the said 0. D., in consideration of the premises, and of the sum of one doUar to him paid by the said A. B., doth hereby grant, bargan and seIl,«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 he no schedtdei] To have and to hold th^, said goods and chattels to the said A B., forever; upon the condition, however, that if the said C. D. shall well and truly pay, or cause to be paid, unto the said A B., the rent above reserved, pimctually, 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 defaidt 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 ren* 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 representative. 390 NEW 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 or 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 oi, 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 paid, or until default in the payment thereof But imtil default be made in the payment of the said rent, the said goods and chattels (unless the said C. 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 House-Keeper and Lodger. This agreement, by and between A. B., of, &c., and C. D., of, 1 C04, 1 i 30, 3k, et scq.) LANDLORD AND TENANT. 397 he rented iinto you, the said 0. D., the house and lot known as num- ^^^ > in street, in said , for the term of , from the day of , then next ensuing ; and that you, or your assigns, hold over and continue m possession of the said premises after the expn-ation of the aforesaid term therein, •withbut the permission of the landlord: Therefore, m the name of the people of the State of New York, you are hereby summoned and required, forthwith to remove from the said premises, or show cause before me, at my office in , on the day of , at o'clock in the noon, why possession of the said premises should not be delivered to the landlord. Witness my hand, the day of 18 6. H., County Judge. § 733. Affidavit of Service of Summons, County, ss: R F., of said county, being dul)"- sworn, says, that on the day of instant, he personally served the within summons upon C. D.,the tenant therein named, by delivering a true copy thereof to him in person, and at the same time showing him the said original summons. Swom, inc., \as in § 731.] E. P. § 734. Warrant to Put in Possession, where Tenant Holds Over, and does not Appear to the Stmvmons. To the Sheriff of the County of [or, to any one of the Constables, or Marshafa, of the City of or, of the Town of , m the County of ,] greeting: Whereas, A. B., of the of , in said coimty, has made oath, and presented the same to me, that on or about the day of, (fee, [as in § 731 to the*, and then add:'] without the permis- sion of the landlord ; Whereupon I issued a summons reqijiring the said tepant forthwith to remove from the said premises, or show cause before me at a certain time now past, why the possession of the said premises should not be delivered to the landlord; and nc sufficient cause having been shown to the contrary, and I being satisfied, by due proof, of the service of the said summons, do there- fore, in the name of the people of the State of New York, com- mand you to remove all persons from the said premises, and to put the landlord in full possession thereof Witness, &c., [as in § 732.] 398 NEW CLERK'S ASSISTANT. § 735. Affidavit of Defaidt in Paying Rent. County, ss: A. B., of , in said coimly, being duly sworn, says, that C D. is justly indebted unto him in the sum of one hundred dollars, due the day of ,18 , for the rent of a house and lot known as number , in street, in , aforesaid; that he has demanded the said rent from the said C, D., .who has made default in the payment thereof, pursuant to the agreement imder which the premises were let, and that he holds over and con- tinues in possession of the same, without the permission of the land- lord, after default in the payment, as aforesaid. Sworn, &c., \as in § 731.] A. B. § 736. Summons on Foregoing Affidavit — to be Served, dkc, as § 732. To C. D., and each and erery person in possession of the demised premises hereinafter mentioned, or olaimmg possession thereof: Whereas, A. B., of the of , in the ooimty of , has made oath that you are justly indebted to him in the sum of one hundred dollars, due the day of , 18 ' , for rent of the house and lot known as number , in street, in , aforesaid; that he has demanded from you the said rent, and that default has been made in the payment thereof, pur- suant to the agreement under which the premises were let ; and that you hold over and continue in possession of the same, without the permission of the landlord, after default in the payment of the rent, as aforesaid. Therefore, you, and each of you, are hereby summon- ed and required, forthwith to remove from the said premises, or show cause before me, at, &c., on the day of 18 , at o'clock in the noon of that day. Witness, &c., \as in § 732.] § 737. Warrant to Put in Possession. To the Sheriff, &c., \or, as in § 734,] greeting: Whereas, A. B., of , in said county, made oath that C. D. was justly indebted to him in the sum of one hundred dollars, for rent of the house and lot known as number , in street, in ' , aforesaid; that he demanded the said rent from the said C. D., who had made default in the payment thereof, pur- suant to the agreement under which the premises were let, and that ho held over and continued in possession of the same without the LAITDLORD AND TENANT. 399 permission of the landlord, after such default; whereupon I issued a summons requiring the tenant, and every person in possession of the said premises, or claiming the possession thereof, forthwith to remove therefrom, or show cause before me, at a certain time now past, why the possession of the premises should not be delivered to the said landlord;* and no good cause having been shown or any way appearing to the contrary, and due proof of the service of such sum- mons having been made to me, you are commanded to remove aD persons from the said premises, and put the said A. B. into the pos- session thereof Witness, ., tenant J G. D.) above named, having appealed to the County Court of county, from the judgnlent rendered agamst him m this proceeding, [describe the judgment r] Now, therefore, in ordw to stay the execution of the said judgment, and in consideration thereof, we, L. M. and 'S. T., undertake and pronuse to, and with the said A. B., that if judgment be rendered against the said C. D., on the said appeal, and execution thereon be returned unsatisfied in whole or in part, we will pay the amount unsatisfied: [^ the appeal is made hy a tenant, add: And we do further pronuse and imdertake, to and with the said A. B., that the said C. D. shall punctually pay all rent accruing or to accrue Upon said premises subsequent to the applica- ^ A'^opy of tlie affidavit for appeal, and a notice qf the appeal, must be seired on the op* nbsite parly, vithin twenty daye after the rendition of the judgment, and aleo on the justicei If tlie party be a resident of the county, the service may heperaonal,orbyleavin|;the'copyof ^e affidavit and notice at his r«sidence,,with some person of suitable age and discretioa: .if tuts r^sidfah^ the service inay be on thei attorney or agent, if any, vho is a resident of tha dty or coiihty, wHo appeared for niin oit the trial, LANDLORD AND TENANT. 405 tion to the Justice, at the time or times when the same becomes due and payable, and that in, defeult thereof, we will pay the same.] Witness our hands and seals, this day of 18 . L. M. [l.b.1 S. T. [l. s.] I approve of the above undertaMng and the surety [or, sureties,] therm mentioned. J. P. H., County Judg& § 151. Petition, tmd Affidavit, where Premises are Vacated. To S. T., one of the Justices of the Peace of the coxmty of : The petition of A. B., of in said county, respectfully showeth: That he demised to C. B., of, &c., the premises lately occupied by the said C. D., on street, in the village of in said county, for the term of one year from the day of , one thousand eight himdred and , at the yearly rent of dollars, payable quarter yearly; that the said C. D. entered into the possession of the said premises as tenant thereof, by virtue of the said demise, and is now indebted to your petitioner in tiie sum of dollars, for one quarter's rent of the said premises, due the day of ,18 ; and that he has deserted the same, leaving the said rent in arrear, and the premises unoccupied and uncultivated. Tour petitioner, therefore, requests that you go upon and view the premises, and if satisfied, upon such view, that the premises are so deserted, that you affix a notice in writing upon a conspicuous part thereof, requiring the tenant to appear and pay the said rent Dated the day of , 18 . A. B. County, ss: A. B., of said county, being duly sworn, says, that the facts set forth in the above petition subscribed by him, are true. Sworn, &c., [as in § 731.] § 752. Ifotice of Justice on Foregoing Petition. NOTICIi. To C. D., of : You are hereby notified, that at the request of A. B., your land- lord, and upon due proof made to me that he had demised to you the premises upon which this notice is affixed, and that you were in arrear for one quarter's rent^ amouBting to dollars; and that you had deserted the premises, leaving such rent in arrear, and left 406 KEW CLERK'S ASSISTANT. them unoccupied and uncultivated, I have viewed tun said premiseSj and am satisfied, upon such view, that the same have been so desert- ed; Therefore, you are hereby required to appear, on the day of , at o'clock in the noon, at the place where this notice is affixed, and pay the rent due, or the landlord will be put in possession of the premises. Dated the day of , 18 . S. T., Justice of the Peace. § 753. Record of Justice, where Premises are Deserted} State of New York, Kg. County, J Be it remembered, that on the day of , one thousand eight hundred and , A. B., by petition presented to me, set forth that he had demised to C. D., &c., [as in petition;'] and for which there is now due to the said A. B., for arrears of rent for the same, the sum of doUars ; that C. D. deserted the premises, leaving the said rent in arrear, and left the premises im- occupied and uncultivated; whereupon, at the request of the said A. B., and upon due proof of the facts set forth as above, I did go upon and view the premises, and was satisfied, upon such view, that the premises were so deserted : Therefore, a notice ia writing was aflSxed by me upon the front door of the dwelling-house thereupon, requiring the said C. D. to appear on the day of , at o'clock in the noon, at the place where the said notice was so affixed, and pay the rent due ; at which time and place I again viewed the premises, and the tenant not appearing and denymg that any rent was due to the landlord ; nor he, nor any per- son for him appearing to pay the rent in arrear, I did put the said A, B., the landlord, in possession of the premises above mentioned, free and clear of any demise to the said C. D., the same being by law from thenceforth declared void. Witness my hand, this day of , 18 . S. T., Justice, &o. ' If the tenant appear at the time Bpecified in the notice, and Aeay that any rent is due to the landlord, all proceedings will cease ; but if, upon the eecond Tiew, the tenant or some one for liim, does not appear and pay the rent in arrear, then the Justice may put the land" lord into possession, and any demise of the premises to the tenant will, from thenceforth, be. come void. An appeal from the Justice's proceedings may be made by the tenant, at any time witliin three months after such possession is delivered, to the County Court of the county. Security is to be given satisfactory to the Justice, as in § 754, and he is also to be served with notice of the appeal. The Justice must servo the landlord with the like notice Of the appeal, and return the proceedings had before him to the court, within ten days after the notice and security shall be given by the tenant. The court is required to examine the proceedings, and hear the proofs and allegations of the parties, in some summary way, and «uch court may order restitution of the premises to be made to th«) tenant with costs to b% vaid by the landlord j in case of affirmation, cost may be awarded agaiustihe tenant. LANDLORD AND TENANT. 407 § 754. Bond on Appeal from Justice'n Proceedings. Know all men, &c. ; \as in the usual form, to the condition, and then add:1 Whereas, certain proceedings have been had, at the in- stance of A. B., against C. D., before S. T., one of the Justices of the Peace of the county of , under color of the pro- visions of the statute authoriziag summary proceedings to obtain possession of demised premises when deserted by the tenant ; whereby the said A. B. was, on the day of last, put into the possession of certain premises by him demised to the said C. D., from which proceedings the said C. u. hath appealed to the County Court of said coimty. Now, therefore, the condition of this obligation is such, that if the said C. D. shall well and truly pay to the said A. B. all costs of such appeal which may be adjudged agaiQst such tenant, then this obliga- tion shall be void; otherwise of full force. Sealed and delivered ) C. D. in presence of }• E. A.M. ) I approve of this bond as the security for the appeal therein men- tioned. S. T., Justice. D. [l. s.] F. [l. a] § 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 , imder 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 . Tours, &c., C. D. 8 756. Notice to the Landlord of the Appeal. ToA.B.: Sir: You will take notice, that C. D., upon giving the required security, has this day appealed to the County Court of the county of , from my proceedings at your instance, and by which you have been put in possession of the premises situate in , in said county, and demised by you to the said C. D., for the term of years. Dated this day of ,18 Yoiirs} &c., S. T., Justice, 408 NEW CLERK'S ASSISTANT. § 757. Cotuplaint for Forcible Entry, and Affidavit.^ County, ss: The complaint of A. B., of , in said countjr, to G. H., Esq., County Jttdge 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 unla^ffully 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, The complaint may be made by an^r party in tbe actual and peaceful possession oflanda at the time a forcible entry ie made, or in the conatructiTe possession wliere there is a forci* ble holding out. Upon receiving the complaint, the Judge issues th«) precept to sununon a jury', to the Sheriff or a Constable of the county, and at tlie same time notifies the party agamst whom the complaint ia made, of the time and place of trial ; wllich notice is to be serred in the same maimer aa directed in the note to § 732. At the time appointed for the return of the precept, the Judge admmiaters an oath to the persons returned summoned, who appear, not bemg leaa than thirteen, nor more than twenty-three, well and truly to in- quire mto the mattera complained of, and a true inquisitiop thereon to make. The jury then proceed to inquire into the matter, and hear the testimony ; the inquisition is to be made and signed before the Judge, and delivered to him. LANDLORD AND TENANT. 409 to inquire upon their oaths for the said people, of a certain forcible entryand detainer unlawfully made by C. D., as is said, mto the dwelling-house of one A, B., in the town of , in said county, against the form of. the statute in such case made and provided. And have you then there this precept Given under my hand, the day of , in the year G. H,, County Judge. § 169. Notke to the Person Oomplained of. To C. D.: On the complaint of A. B., of the town of , in the county of , made to me, the unders^ed, 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 Stud dwelling-house, and do stfll 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 Judge. § 760. Affidavit of Service of Preceding Notice. County, ss: R F., of said county, bemg 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 dehvering 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 affixing the same on the front door of the house in question, there being no person on the premises- or, by affixing the same on the post at the principal entrance ot Laws of 1842, cbap. 135, S 26 : Laws of | < 7 Hill, 171. 18E0, chap. 282. j LUNATICS. 415 County, ss: L. B, and S. W., of said coxinty, being by me severally sworn, depose and say, and each for himself deposes and says, that the facia stated and set forth in the above certificate, by him signed, are true. Sworn to, this day of , ) L. B. 18 .before me, f S. W. H. T. C, Justice of the Peace. § ^67. Application to Cowniy Judge, and Afidavit. To the Hon. J. P. H., County Judge of the County of : The petition of A. B., of the town of , in said county, respectftdly showeth : That C. D., now a resident of the said town, is, and for the term of years last past, has been, a lunatic ; that he is now in the care and custody of E. F., 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^ [or, for the support of himself and family,] under the visitation of insanity aforesaid : Tour petitioner therefore 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 eflFeotually to provide for the care, main- tenance, and recovery of the insane," passed April 7, 1842, and the act entitled "An Act in relation to the State Lunatic Asyliim," passed April 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 him signed, are true. Sworn, &c., [as in § 766.] A. B. § 768. Order of Judge on the Foregoing Petition. In the matter of C. D., ) an alledged indigent lunatic: ) 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 D. D., two respectable physicians of the said county, be hereby designated and appointed, pursuant to the provis- ions of the act entitled, &c., [as m § 767,] to examine the said C. D. in respect to his alledged insanity, 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 the 416 KEW CLEEK'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 pecuniary circumstances of the said C. D. J. P. H., County Judge of the county of , § 769. Subpoena to WHnegs. County, ss: To E. F., O. 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 ofiSce in , on the day of instant, [or, next,] at o'clock in the noon, to testify what you, or eitbier 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. Jfoiice to SuperintenderU or Overseer. To E. R, one of the Superintendents of the Poor of the County of [or, an overseer of the poor of the town of in the Coimty of .] Sir : You will please take notice that an application has been made to me in behalf of C. D., of ' in said county, an alledged indigent lunatic, praying for an examination and investigation under the act entitled "An Act to organize the State Lunatic iUylum, &c.," passed April 7, 1842, and the act entitled "An Act m relation to the State Lunatic Asylum," passed April 10, 1850; and that a hear- ing upon the said application will be had at my office in the of , on the day of , instant, [or, next,] at ten o'clock in the forenoon of diat day. Yours, &c., J. P. H., County Judge of said County of . § 771. Certificate of Physicians, and Affidavit. In the matter of C. D., ) an alledged indigent lunatic : ) We do hereby certify, that in pursuance of the order of J. P. BL, County Judge of the county of , made m 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 particidarly m reference to his alledged insanity; and that, m our opinion, derived from such examination, the said 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 coimly, being by me severally sworn, depose and say, and ea«h 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, &C., [as in § 766.] 11 D. § 712. Certificate of JvOge} In the matter of C. D., ) an alledged indigent limatic : 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, (fee, \as in § 767 :] 1 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 G. 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, eitiier in possession, or held by any person in trust for him, sufficient for his support, \or, for the support of himself and his family,] under the visitation of insanity as aforesaid. Given. &c., \asm% 769.] J. P. H., County Judge, &a > The deporitisns taken before the Judges should he reduced to writing;, and entitled u u & 772. The certificate of the physicians, and other papers, together with a report of the proceedings and the decision, are to be filed 1^ the Judge in the office of the County Clerk, Bo is also required to report the facts to the Board of guperriaon. 27 CHAPTER XXVm. MECHANICS' MD LAEOREES' LIEN. PRACTICAL REMAKES. 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, perfprms 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 vfllages 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 hens 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, specifications 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 coimty, 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 conlxact- 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 lien 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 MECHANldS' AND LABORERS' LIEN. 419 person furnisliing materials, nmst 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, oi in tlic County Court, or any Justice's Court of such county, (except in Mew York,) or in the Marine Court in the city of Ni.'\v Yoik, as in the form hereinafter given. Within ten days after service of sucli 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 bill of particulars of any oflfset 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 famished, 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 cotmty, on having ffled with him a duplicate copy of the statement signed by the laborer, or person furnishing materials, and the con- tractor, as aforesaid, with 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 sam« form as upon a judgment recovered on contract, on the day of the attach- ing of such lien, reciting that such execution is issued pursuant to the tenth section of the act of 1844 ; which execution wiU 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 shaE 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 Buch owner, or bis agent, from any liability on the lien ; and such 420 NEW CLERK'S ASSISTANT. certificate, executed by the person in presence of a silbscribing wit- • ness, mil 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 found in Volume III, of the Bevised Statutes, (3d ed.) p. 111. FORMS. § 773. Notice to Owner or Agent, of FUing Spenficaiion. 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] by 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 arej 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. k, 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. § 77s. Notice to Appear and Submit to Account, de* Sir : Tou will please to take notice, that you are required to ap- pear in the Court of Common Pleas of the city and coimty of New York, [or, the County Court of the county of ; or, before G. < Laws of 1844, chap. 220; Id., chap. SOS ; LavB of 1845; chap. 235; 4HiU.193; 7 Id., 625. > The notice must be served twenty (ten, in the city of New York,) days before the tims (or appearance. MECHANICS* AND LABOEJilRS' LIEN. 421 H., Esq., a Justice of the Peace of the county of ,] either in per- son or by attorney, on the day of next, and submit 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 undersigned, 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 nurnber , in street, in said city, [or, vil- lage,] and a copy whereof is on file in the office of the Clerk of the county of Dated, &c., [as in § 773.] § 776. Notice to Produce Bill of Particulars of Offset. Sir : You will please to 1;ake 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 bill of particulars of any ofi&et which may be claimed to the account herewith presented ; and you will also take notice, that the following is a bUl of particulars of th^ amount claimed to be due by the under- signed, viz : [set forth the particulars, as in an ordinary accotmi.] Dated, &o., [as in § 773.] § 777. Statement of Lahor Done, or Materials Furndshed, to he Signed hy the Person Doing the Work, or Fwrnishing the Materials, and the Contractor, and Delivered to the Owner or his Agent. We do hereby certify and agree, that the imdersigned C. D., has performed labor [or, furnished materials] on or about the dwelling- bouse known as nimiber , in street, in the city [or, village] of , to the value of dollars; of 'which you will please take notice. Dated, &c., [as in § 773.] C. D. To Mr. A. B. E. F. § 778. Writ of Inquiry from the Oovrt. The People of the State of New York, to the Sheriff of the County of , greeting; P , Whereas, C. D., lately in our Court of Common [L. S.J pjggg ^£ ^^ jjj^ gjj^ county of New York, [or, our County Court of our said county of ,] before the Judges 422 ifEW CLERK'S ASSISTANT. \or. Judge] thereof, at the com-t-liouse in the city [or, town] of produced and showed to the said court, that on the day of ,18 , 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 Syracuse, Williamsburgh, Geneva, Canandaigua, Oswego and Auburn, "passed May 7, 1844,]* he personally served A. B. with a notice to appear and submit to an ac- coimting and settlement in the said court, of which the following is a copy, viz : [copy notice :'\ And whereas, on the day of ,18 , that being the day on which the said A. B. was required to appeat 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 your county, you diUigently inquire whait 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 d3y of next, the inquisition which you shall thereupon take, under your seal, and the seals of 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: C. 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 Raid A. B. refused to pay the same.] Sworn to, this day of , ) 18 (before me, j A. B. G. H., Justice of the Peace. MECHAITICS' AUD LABOREES' LIEN. 423 § 780. JExecution by County Clerk. The People of the State of New York, to the Sheriff of the dty and county of New York, \or, of the county of ,] greeting : r, „ 1 We command you, that of the goods and chat- '- -■ tek of A. B, in your baOiwick, yon cause to be made doSais, which C. D., lately, in our Court of Common Pleas 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, [a« tn § 778, to the* and then acid:'] whereof the ssdd A. R is conncted, as appears of record; and tf sufficient goods and chattels of the said A. B. cannot be fonnd in your county, tiiat then you cause the amount of dol- lars, aforesaic^ to be made of the real estate whereof the said A. R was sdsed, on the day of , 18 , or at any time thereafter, in whose hands soever the same may b^ 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 Chy HaU in the city and county of New York, [or, court-house ia the city [or, town] of ,] at the eiqiiration of dzty days from the rece^ hereof by you, together with this wiit WitoesE^ 2 Seat's Commentariea, (2d ed.) 64, 66 ; Laws of U.S. 1801 chap. 47, > 2 R. S. (3d ed.) 4, 6, M 16-21 ; — •' ofl836, chap. 339; _, , . „ , Laws of 1830, chap. 171; Laws or 1836, chap. 339; Laws of 1838, chap. 32 ; Laws of 1843, chap. 87; Laws of 1845, chap. 115; 6 Faife, 114; 6 M., 448; 20 Wendell, 338; 21 Id., S9; 3 Hlll,67. < 20 Wendell, 338 436. NEW CLERK'S ASSISTANT. 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 vrhereof, I have hereunto subscribed my name, and affixed the seal of the said court, the day of , one thou- sand eight hundred and [l 8.] W. B., Clerk. te) § 782. Oath of Alien. United States of America ; State \ of Few York, County, A. B., being duly sworn, doth depose and say, that he is a residtnt in the State of New York, and intends always to reside m 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 kws of the United States require, to enable him to obtain naturalizatioa Sworn before me, the ) day of , 18 . f W. B., Clerk of Court § 783. Affidavit of Alien imder Eighteen Years of Age at the ttms of his Arrival. "^I'^Zlr'^^n, \ State of Few York, Counfy. ss: 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, he 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, \ W. B., Clerk of the Court of § 784. Oath to Support the Constitution in precedirig ease. I, C. D., do solemnly swear, that I wiU support the Constitution of the United States, and that I do absolutely and entirely renounce NATURALIZATION. 427 and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, whatever, and particularly to Ernest Augustus, King of Hanover, of whom I was a subject Sworn, Ac, [as in § Y83.] C. D. § 785 Prooj of Good Behavior, <&c., to Accompany the foregoing Oath. State of New York, ) ^ County, E. R, of said county, being duly sworn, doth depose and say, that he IS a oilizen 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 during 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, (fee, [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 mj intention, and has been for the last three years, to become a citizen of the United States, and to renoimce forever aU allegiance to all and every foreign prince, potentate, state, and sovereignty, whatever, and particularly to Ferdinand, Emperor of Austria. C. D. Sworn, &c., [as in § 783.] § 787. Certificate of C^izenship. 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 die State of , aforesaid, appeared in the Court of 428 NEW 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 renimciation, 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 aflSxed, 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. {^For the form of the oath, see § 784.] § 788. Deposition of Alien to enable him to hold Meal Estate^ United States of America; State ) . of New York, County, P*' A. B., being duly sworn, doth depose and say, that he is a resident of 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 ^ naturalized; and that he has taken such incipient measures as tho laws of the United States require, to enable Mm to obtain naturali- zation. Sworn to before me, this ) day of , 18 , f G. K, County Juoge. > Hw de^sition, or affirmation, is to be made, or taken, before an^ officer aathorized to take the proof of deeda, and is to be filed and recorded in to* office of^the Sacrelary of Statei CHAPTER yyy OFFICIAL OATH AND BOND. PRACTICAL REMARKS. 1. All persons elected or appomted to any oivil office in this State, and in the several counties and cities thereof, are required to take the official oath of office. Supervisdts, Town Clerks, Assessors, Over- seers of the Poor, Conunissioners of Highways, and Town Sealers, are also required to take such oath, within ten days after receiving notice 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 Pormdmasters, are required to give notice to the Town Clerk, in writing, signifying their acceptance of their respective offices, within ten days ^er 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 coimties.' 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 fado, although he is guilty of a misdemeanor.* > Amneded Constitulion of New York, Ait. zii ; 1 R. S. (3d ed.) 123, § 22, et seq.; Id., 39i i 29, et seq. '. 2 Barboui'9 S. C. Rep., 320. 430 HEW^CLEEK'S ASSISTAHfT. rOEMS. § 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 York, and that I will faithfully discharge the duties of [give the title of the officeli according to the best of my ability. A. B. Swom and subscribed, this day ) of ,18 , before me, J P. v., Oerk of the County of § 790. Notice of the Acceptance of a Town Office. To C. D., aerk of the Town of , in the County of : Take notice, that I hereby accept the office of Overseer of Higl» ways of district No. , in said town of Dated the day of , 18 . O.P. § 791. Instrument to be given hy a Constable and his Sureties. H. C. B., chosen [or, appointed] Constable of the town of , in the countyjof ; and L. M. and S. T., as sureties of the said H. C. B., do hereby jointly and severally agree to pay to each and every person who may be entitled thereto, all such sums of money as the said Constable may become liable to pay, on account of any execution which shall be delivered to him for col- lection, j Dated the day of ,18 Executed in the presence of, and ) H. C. B, the sureties approved by, f L. M. E.F., Supervisor, [or, CD., Town S. T., ■Qerkjof theTovmof L. B. L. S.| L. S.' § 792. Sheriff's Bond.^ Know all men by these presents : That we, A. P., L. M., and S. T., of the town of , in the county of , are held and f' 2 The penal snm of theSheriif'B bondin thecWyof NewTork, is twenty thousand dollars ; and there must be two sureties. In other countleB, the bond must be ia the penal sum of, tan tiiousand dollars, with two or more sureties. OFFICIAL OATH AND BOND. 431 finnly bound unto the people of the State of New York, m the penal sum of thousand dollars, to be paid to the said people; for which payment, well and truly to be made, we bmd ourselves, our and each of our heirs, executors and admmistrators, jointly and seve- rally, firmly by these presents. Sealed with our sems, 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, m all things, perform the du- ties and execute the office of Sheriff of the said county of , during his continuance bx 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. [l. s.' Executed in the presence o^ and ) L. M. Fl ^ the sureties approved by, j S. T. [l. P. v., Clerk of the County of § 793. Oath of Sheriff's Sureties, to be Indorsed on the Bond. 1, L. M., one of the sureties 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 aU debts whatsoever owing by me. L. M. Sworn and subscribed, this day ) of ,18 , before me, J P, v., Clerk of the Couniy 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 , m 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, &c., [as in § 792 to the *, and then add:'\ Whereas the above boxmden G. H. has been appointed to the of- fice of Deputy Sheriff 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 ITEW 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 m ^ G. H. [l. s.' presence of [ S. T. [i. s.' 0. D. ) 0. P. [l. a § 795. Oeneral Form of an Oficial 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 Eieople, [or officer, or officers, as aforesaid;] for which payment^ &c., as in § 792, to the *, and then add:] Whereas, the above bounden A. B. has been appointed [or, elected] to the office of , [give the title of the office:] Now, there- fore, the condition of the above obligation is such, that if the said A. B. shall, &c., [follow the language of the statute prescribing the form of the condition,] then the above obligation to be void; else to re- main in full force. Signed and sealed in 1 A. B. presence of y C. D. O. H. ) E. F. L. S. J. &' CHAPTER XXXL PARTNEESHIP. PRACTICAL REMAEKS 1. Partnership is a contract between two or more persons, to place their money, effects, labor and skill, or some or all of them, in any lawful commerce or business, and to divide the profit, and bear the loss, in certain proportions. Universal partnership is a contract by which the parties agree to make a common stock of all the property they respectively possess. Particular partnerships are such as are 'formed for any business not of a commercial nature. Commercial partnerships are formed for the purchase of personal property, and the sale thereof, either in the same state, or changed by manufacture ; or for carrying persons or personal property, for hire, in ships or other vessels, or conveyances.' 2. The leading principles of a contract of partnership are, a com- mon interest in the s^ock of the company, and a personal responsi- bility for the partnership engagements.' 3. In order to constitute partners, between the parties, there must be a voluntary contract, and each party must engage to bring into the common stock something that is valuable, "whether it be money, property, or services; aad there must also be a communion of profits. The shares must be joint, though it is not necessary that they should be equai' 4. A parol agreement to enter into partnership inomediately, is valid, — so, also, is an agreement to enter into partnership in future, if the parties really go into partnership.'' < 3 Kent's Commentaries, (2d ed.,) 23, et M/| : Story on Partnership, 2, et seq. 9 3 Kent's Commentaries, (2d ed.,) 21. • 3 Kent's Cammentaries, (2d ed.) 25 ; 9 Johnson, 307 ; 10 Id., 226 : 15 Id ., 409 ; 16 Id- 34,489; 1 Wendell, 457; 18 Id., 176: 1 HilL 572; 3 Id., 16?; 4 Paige, 148. < 2 Barbour's Ch, Rep., 336. , 134 NEW CLERK'S ASSISTANT. 5. Persons are answerable to the world as partners, if they per- mit their names to be used in a firm, or participate in the profits of a trade : and each individual is liable to the whole amount of the debts, without reference to the proportion of his interest.* 6. Where two or more persons agree to have any business in which they are jointly concerned, carried on in the name of one. his name is the co-partnership name or title.^ 7. A partner cannot bind his co-partner by a contract under seal, (except it be a release or an assignment of a chose in action due to tiie firm,) without his previous assent, pr subsequent indorsement' 8. Part owners of ships are generally regarded as tenants in com- mon, and not as partners, or joint tenants.* 9. A co-partnership cannot be proved by general reputation ; but other facts and circumstances must be adduced in order to establish It' 10. On an execution against one of several co-partners, the property of the firm may be seized, removed and sold, by the oflScer, and the purchaser at the sale will become a tenant in common with the other partner or partners ; but the right which such purchaser may acquire will be subject to the adjustment of the partnership concerns, and the debts of the firm must be first satisfied out of the partnership effects." 11. After the dissolution of a partnership, neither party can make any disposition of the partnership effects, inconsistent with the primary duty of paying the partnership debts ; though- either party may re-' ceive payment of debts due the firm, and apply the amount received on the partnership liabilities.' 12. After the dissolution of a partnership, the promise of one partner will not revive a debt barred by the statute of limitations ; for the dissolution revokes the presuiried agency, except so far as relates to winding up the business of the firm.' 13. A species of partnership, similar to the French system of com- mandite, may be formed in this State, by two or more persons, for the transaction of any mercantile, mechanical or manufacturing business. Such partnerships may consist of one or more persons, who shall be • called general partners, and shall be jointly and severally responsible as general partners in other cases ; and of one or more persons who shall contribute, in actual cash pajouents, a specific sum, as capital, to the common stock, who shall be called special partners, and who > 9 Johnson, 470 ; 14 Id., 315 ; 19 Id., 226 ; 1 WendeU,457 ; S Id., 274; 6 Id., 263; IS Id., 175. > 1 Denio, 402. a 9 Johnson, 285; 19 Id., 513; 1 Wendell, 826; 9 Id., 437; 12 Id., 53; 20 lU., 251 ; 2 Hill, 595; 5 Id., 163. « 1 Johnson, 106 ; 20 Id., 6U. ' 20 Johnson. 176 ; U WendeU, 96 ; ■» Id., 81 : 3 Hill, 333. • 3 Denio, 12i , 2 Bathoui's Ch. Ban. 167. T 2 Barbour's S. C. Rep., 62S. s 2 Comstock, 522. PARTNERSHIP. 435 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 feigned 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 published 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 published in the senate district in 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 ^vill 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 inserted, 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 make a statement of the names of the persons composing such association, or company, and to file a copy thereof in the offite 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' 685. • 2 R. S. (3d ed.,) 49, 5§ 1, 2; 7 Paige, » 2 R. S. (3d ed..) 49, 60, 5 4, et eeq. ; 24 WendeU, 496 ; 5 HiU, 309 ; 6 Id., 479. s 3 Demo, 435. « 2 R. S. (3d ed.,) 60,'§ 13 j Id,, Bl, S 1 24 Wendell, 496 J 5 Hill, 309: 6 Id. 479. • Lawa of 1836, Chap. 385. 436 NEW CLERK'S ASSISTANT. FORMS. § 796. Articles of Co-partnership. — General Form. Articles of agreement, made the day of , one ihoii- sand eight hundred and , between A. B., of, &c., of the one par^ and C. D., of, &c., of the other pai-t, 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 delivered 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 all 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 shall, and will, at aU times during the co-partnership, bear, pay and discharge, equally between them, aJl 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 PARTNEBSHIP. 437 whatsoever, to the said buaness and management thereof in anywise belongmg ; 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 interruption 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 yearl) 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 them, 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 all 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 wiQ, clear, adjust, pay and deliver, 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 accoimt, 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, ike day and year above written. Signed and sealed in ) A. B. • [l. s.1 presence of J C. D. [l. s.J G. H. 8 797. Artidts of Co-partnership between Covntry Merchants. Articles of agreement made and entered mto, this day of , A. D. 18 , between A. B., of, &c., of the one part, and C. D., of, ledgment.i County, ss: On this day of ,18 , A. B., C. D., E. F., and L M., known to me to be the persons described in, and who made and signed the preceding cert^cate, came before me, and EereraUy a^owledged that they had made and signed the same. M. XJ. Judge of New York Common Pleas. § 802. Affidavit to he FUed with the Oertifieate. County, ss: A. B., of said county, being duly sworn, says, that he is one of the general partners named in the abore certificate, and that the sums specified in the said certificate to have been contributed by the special partners to the common stock, have been actually and in good faith paid in cash. Subscribed and sworn before me, ) A. B. this day of , 18 . ) M. U., &c § 803. Designation of the Newspapers in which the Publication is to he made. Let the terms of the limited partnership between A. B., C. D., E. F., and L. M., be published in the . , and the , which papers are published in , in county. J. C., Clerk of the City and County of New TorL ' The certificate must be acknowledged, (Qot proved,) before a Justice of the Supreme Court, or a Judge of the County Courta, in the same maaner as conveyancee of real estate. The affidavit may be made before a Judge, or a CommlBsione.* of Deeds, or the County Clerl:. PARTNERSHIP. • 441 § 804. Notice to le Published. NOTICE OF LIMITED PABTNEESHIP. Notice is hereby given, that A. B., and C. D., who respectively reside in the city of New Tor^; E. F., who resides at , in the county of , in the State of New York, and L. M., who resides at , in the county of , m the State of New Jersey, have formed a limited partnership^ pursuant to the provisions of the Eevised Statutes of the State of New York, for the buying and selling groceries, and such other articles as are usually dealt m 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, &c., 1 The place where the businesa is to bs earned on maybe iiueiied here, alihcngh the oatute (Toes not aeem to nqoin it. CHAPTER XXXn. PATENTS. PRACTICAL REMARKS. 1. Patents are granted to any person, or persons, for the term ot fourteen years, for any new and useful art, machine, manufacture, oi 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 application- 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 bas-relief, or composition in cdto or basso-relievo ', or an impression or ornament to be placed on any article of manufacturf ; 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. | « Laws of U. 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 asagnment of a patent may be to the whole, or to an un- divided part, by any instrument in writing. AU assignments of pa- tents, or conveyances of the right to use the same, m 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 must 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 application must also be accompanied by duplicate drawings and written refer^ces, when the nature of the case will 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 offic'e, 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 dollars, which will be deemed part of the regular fee, if the patent is afterwards issued. If an application be made, within one year after filing the caveat, for a patent for any invention which may interfere with that specified in the caveat, the Commissioner is required to give notice by mail to the person filing the same, who will be required to file his specifications, &c., within 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 arbitrators, twenty-five dollars ; on entering a pa- tent beyond the fourteen years, forty dollars; for 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 dollars — ^if more than one thousand words, three dollars; for adding 444 NEW CLERK'S ASSISTANT. the specification of a subsequent improyement, fifteen dollars; on surrendering an old patent for a re-issue, to correct a mistake of tlia 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. All 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. Fetition. 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 tiierefor, 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 dollars into the treasury, and complied with the other provisions of the said act A. £. § 806. SpecificaMon. To all whom it may concern : Be it known, that I, A. B., of , in the coimty of , and State of Kew York, have invented a new and improved mode of ' Laws of New York, 1815, chap.U. PATENTS. 445 preventing steam boflers from bursting; and I do hereby declare, that the following is a full and exact description of the said invention : The nature of my invention consists in providing the upper part of a steam boiler vdth an aperture, in addition to that for the safety valve; which aperture is to be closed by a plug, or disk, of alloy, ■which will 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 in order to obviate the danger arising from the adhesion of the safety- valve, and from other causes, I maike a second opening in the top of the boiler, similar to that made for the safety-valve, as shown at A, in the accompanjring 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 general, 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 wUl, 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 boiler rises to its assigned limit, the fusible al- loy will 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 apphcation to steam boilers of a fusible alloy, which wUl melt at a given temperature, and allow the steam to escape, as herein described, using any metaUic com- pound which win produce the intended effect. Witoiess, G. H. A. B. 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 useftd machine for •, \state the use and title 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 ' Where the specification is of an improTemenl, the original invn-itioa should Iw dis- claimed, and the claim coa&ne'l entirely to the improremeut. 446 NEW CLERK'S ASSISTANT. declare that tibe following is a full, clear, and exact description, of the construction and operation of the same, reference being had to the annexed drawings, making a part of this specification, in which figure 1, is a perspective view; figure 2, a longitudinal elevation; fig-ure 3, a transverse section, &c., [describe all the sections 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 used; 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 yoiu 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 the. terms and conditions ex- pressed in the act of Congress in that case made and provided; ho having paid fifteen dollars into the treasury, and complied with the other provisions of the s^d 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 office, for dollars m specie, deposited by A. B., of the town of , m the county of , and State of , the same being for a patent for a steam boiler, [or, as the case may 5e.] § 811. Withdrawal, with Accompanying Beceipt. Sir: I hereby -withdraw my application for a patent for improve- ments in the steam boiler, now m 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. Eeceived of the Treasurer of the United States, per Hon. E. B., Commissioner of Patents, twenty dollars, being the ainount refunded on withdrawing my application for a patent for improvements, &o. § 812. Surrender of a Patent for Reissue, 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 boUers 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, imder the amended specification herewitii presented; he having paid fifteen dollars into the treasury of the United States, agreeably to the re- quirements of the act of Congress in that case made and provided. § 818. Assignment of a Patent RigM, Whereas, letters patent, bearing date the day of , .A^ D. 18 , were granted and issued by the government of the United States, und«r the seal thereof, to A. B., of, &c., for an improvement NEW CLERK'S ASSISTANT. in machinery, for sawing and jointing building staves, of all sorts and sizes, [a general description of the invention should be given,'\ a more full and particular description whereof is annexed to the said letters- patent, in a schedule ; by which letters patent, the full and exclusive light and liberty of maJdng and using the said invention, and of vending the same to others to be used, was granted to the said A. B., his heirs, executors, administrators and assigns, for the term of fourteen years from the date thereof :* Now, therefore, this inden- ture witnesseth : That I, the said A. B., for and in consideration of the sum of dollars, to me in hand paid, by C. D., of, &c., the receipt whereof is hereby acknowledged, have granted, assigned and set over, and by these presents do gTant, assign and set over, unto the said C. D., his executors, administrators and assigns, the said let- ters patent, and all my right, title and interest, in abd to the said invention, so granted unto me ; to have ana to hold the said letters patent and invention, unto the said C. D., his executors, adminis- trators and assigns, in as full and ample a manner, to all intents and purposes, as I might have or hold the same, were these presents not executed, for and during the rest and residue of the said term of fourteen years. In witness whereof, I have hereunto set my hand and seal, this day of , 18 . In presence of ) . A. B. [l. 8.1 G. H. f E. F. § 814. The same, where the Patentee has Sold a Moiety, and he and the Assignee Sell the Right for a single State. Whereas, &c., [as m § 813, to the *, and then add:'\ and whereas the said A. B. has duly sold and assigned the undivided half or moi- ety, of the said letters patent ^d invention, and his right, title and interest, in and to the same, to E. F., of, &c., his executors, adminis- trators and assigns, by indenture, dated the day of , A- D. 18 : Now, therefore, this indenture witnesseth: That we, the said A. B. and E. F., for and in consideration of the sum of dollars, to us in hand paid, by C. D., of, &c., the receipt whereof is hereby acknowledged, have granted, bargained and set over, and by these presents do grant, bargain and set over, unto the S£ud C. D., his executors, administrators and assigns, the fiiU and excluave right of making, constructing, using, and vending to others to be used, the said invention and improvement, as above mentioned, in and for the State of New York; to have and to hold the same unto the said C. D., his executors, administrators and assigns, in and for the State aforesaid, in as full and ample a manner, to all intents PATENTS. 449 and purposes, as we might have or hold the same, were these pre- sents not executed, for an(^during the rest and residue of the said term of fourteen years. In witness, &c., [as in § 813.] § 815. Assignment of the Eight in a Patent for One or More States. Whereas, I, A. B., of , in the county of , and State of _ , did obtain letters patent of the United States, for certain improvements in steam engines, which letters patent bear date the first day of March, 1835; and whereas, C. D., of , aforesaid, is desirous of acquiring an interest therein: Now this indenture witnesseth, that for and m consideration of the sum of two thousand dollars, to me in hand paid, the receipt whereof is hereby acknowledged, I have assigned, sold and set over, and do hereby assign, sell and set over, all the right, title and interest, which I have in the said invention, as secured to me by said letters patent, for, to, and m, the several States of New York, New Jersey and Pennsyl- vania, and in no other place or places: the same to be held and enjoyed by the said C. D., for his own use and behoof, and for the use and behoof of his legal representatives, to the full end and term for which the said letters patent are or may be granted, as fully and entirely as the same would have been held and enjoyed by me, had this assignment and sale not have been made. In witness, &o., [as in § 813.] § 816. Assignment before Obtaining Letters Patent, which must be Recorded preparatory thereto. Whereas, I, A. B., of , in the county of , and State of , have invented certain new and useful improvements m the boilers of steam engines, for which I am about to make appli- cation for letters patent of the United States; and whereas, C. D., of , aforesaid, has agreed to purchase from me, all the right, title and interest, which I have, or may have, in and to the said in- vention, in consequence of the grant of letters patent therefor, and has paid to me, the said A. B., the sum of five thousand dollars, the •eceipt of which is hereby acknowledged. Now this indenture wit- nesseth : That for and in consideration of the said sum to me paid, I have assigned and transferred, and do hereby assign and transfer, to the said C. D., the fuU and exclusive right to all the improvements made by me, as fuUy set forth and described in the specification which I have prepared and executed, preparatory to the obtaining of 29 450 NEW CLERK'S ASSISTANT. letters patent therefor. And I do hereby authorize and request the Commissioner of Patents to issue the said letters patent to the said C. D., as the assignee of my whole right and title thereto, for the sole use and behoof of the said C. D., and his legal representativeii In witness, &c., [as in § 813.] § 817. Disclaimer.' To the Commissioner of Patents : The petition of A. B., of , in the county of , and State of , respectfully represents : That he has, by assign- ment, duly recorded in the patent office, become the owner of a right for the several States of Massachusetts, Connecticut and Rhode Island, to certain improvements in the steam engine, for which let- ters patent of the United States were granted to C. D., of Boston, in the State of Massachusetts, dated on the first day of March, 1835 ; that he has reason to beUeve, that, through inadvertence and mistake, the claim made in the specification of said letters patent is too broad, including that of which the said patentee was not the first inven- tor. Your petitioner, therefore, hereby enters his disclaimer' to that part of the claim in the aforenamed specification, which is in the following words, to wit: "I also claim the particular manner in which the piston of the above described engine, is constructed, so as to insure the close fitting of the packing thereof to the cylinder, as set forth ; " which disclaimer is to operate to the extent of the inte- rest ia said letters patent vested in your petitioner, who has paid ten dollars into the treasury of the United States, agreeably to the requirements of the act of Congress in that case made and provided. A.B. § 818. Caveat. To the Commissioner of Patents: The petition of A. B., of , in the county of , and State of , respectfully represents: That he has made certain improvements in the mode of constructing the boilers of steam en- gines, and that he is now engaged in making experiments for the purpose of perfecting the same, preparatory to his applying for let- ters patent therefor. He therefore prays, that the subjoined descrip- tion of his invention may be filed as a caveat, in the confidential I When the disc'aimei is made by the original patentee, it must be so worded aa to ezprosf that fact. PATENTS. 451 arcUves of the patent office, agreeably to the provisaons of the act of Congress in that case made and provided; he having paid twenty- dollars into the treasxuy of the United States, and otherwise complied with the requirements of the said act March 1, 1838. A. B. § 819. Addition of New Improvemeids. To the Commissioner of Patents : The petition of A. B., of , in the county of , and State of , respectfully represents : That your petitioner did obtain letters patent of the United States, for an improvement in the boilers of steam engines, which letters patent are dated on the day of , 18 ; that he has since that date, made certain improrements on his said invention, and that lie is desirous of add- ing the subjoined description of his said improvement to his original tetters patent, agreeably to the act of Congress in that case made and provided; he having paid fifteen dollars into the treasury of the United States, and otherwise complied with the requiremente of the said act A. B. § 820. Oath on Restoring Drawings, to Replace the Originals Destroyed in the Patent Office, County of ) State of f ^■ On this day of , 18. , before the suDscriber, a Justice of the Peace in and for said county, personally appeared A. B., of , in the State of , and made solemn oath, that he is the inventor \or, is interested in the invention, as adminis- trator, &c.,] of an improved mode of preventing the explosion of steam boilers, for which letters patent of the United States were granted to him, \or, to C. D.,] dated the day of i 18 , and that the annexed drawmg \or, sketch] is, as he verily believes, a true delineation of the invention described in the said letters patent G. H., Justice, &c CHAPTER XXXm. PENSION VOUCHEES. PRACTICAL REMARKS. 1. When appJication is made for the payment of a pension, the identity of the person must be established by affidavit, setting forth a copy of the original certificate, i&c, as in the following forms. The deposition must be signed by the deponent, and where the pension has been increased since the certificate was given, the magistrate mU note the fact The requisite depositions may be taken before any of- ficer authorized to administer oaths. 2. Where a pension has remained unclaimed, by any pensioner, for the term of fourteen months after the same became due and payable application must be made to the Department of the Interior, at Wash- ington ; and in such case, additional proof of the identity of the ap- plicant win be required. 3. All interlineations in pension-vouchers shoidd be carefully noted by the ma^strate, before the execution. 4. When application for the payment of a penaon is made by an attorney, he must deposit with the agent the power of attorney, duly acknowledged, and dated on or subsequent to the day on which the pension claimed became due, together with an affidavit made by him- self. 5. In all cases of payments upon a power of attorney, the Justice ol the Peace, or Magistrate, before whom the power is executed, must ■ have lodged with the agent, the certificate of the clerk of some court of record, under the seal of the court, that he is legally authorized to act as such, and, also, a paper bearing his proper signature, certified of be such, by the clerk of some court of record. 6. In case of the death of any pensioner, the arrears due to him at the time of his death, must be paid as follows : PENSION VOUCHERS. 453 J. To the widow of the deceased, or to her attorney, proving her- self to be such before a court of record ; or, II. If there be no widow, then to the executor or administrator on the estate of such pensioner, for the sole and exclusive benefit of the children, to be by him distributed among them in equal shares ; but the arrears of pension are not to be considered a part of the assets of the estate, nor as liable to be applied to the payment of the debts of such estate, in any case whatever. 7. In case of the death of a pensioner who is a widow, leaving chil dren, the amount of pension due at the time of her death, must be paid to the executor or administrator, for the benefit of her children, as directed in the foregoing paragraph. 8. In case of the death of a pensioner, whether male or female, leaving children, the amount of pension in arrearmay be paid to any one, or each of them, as they may prefer, without the intervention of the administrator. If one of the children is selected to receive the amount due, he, or she, must produce a power of attorney from the others for that purpose, duly authenticated. 9. If there be no widow, child, or children, then the amount due a pensioner, at the time of his death, must be paid to the legal repre- sentatives of the deceased. 10. Where an executor or administrator applies for the pension, due to a deceased person, he must deposit with the agent for paying pensions, a certificate of the Clerk of the Court, Judge of Probate, Register of Wills, Ordinary, or Surrogate, as the case may be, sta- ting that he is duly authorized to act in that capacity, on the estate of the deceased pensioner, and, if a male, that it has been proved to his satisfaction that there is no widow of the said pensioner living. 11. The original certificate of pension must be surrendered at the time the moneys due a deceased pensioner are paid ; or, if such certifi- tate cannot be obtained for surrendry, substantial evidence of the "dentity, and that due search and inquiry have been made for the certificate, and that it cannot be found, must be produced. The date of the pensioner's death must be proved before a court of record. . 12. Where facts are proved before the clerk of a court, his certi- ficate, stating the same, mider his seal of office, must be obtained. 13. When the guardian of a pensioner applies for a pension, he must, in addition to the evidence of the pensioner's identity, deposit with the pension-agent a certificate from the proper authority, stating that he is, at that time, acting in that capacity, and also, satisfactory evidence that his ward was living at the date the pension claimed be- came due. 14 Pension agents are authorized tc administer all oaths required to be administered to pensioners or their attorneys, and to charge the same fees as magistrates are authorized to do by the laws of their re- spective States. ' 1 Laws of U.S. 1840. 454 HEW CLERK'S ASSISTANT. FORMS. § 821. Oath of Pensioner, State of , } Coimty, 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 A. B., and made oath, in due form of law, that he is the identical person named in an original certificate in his pos- session, of which (I certify) the following is a true copy; [insert here a copy of the certificate of pension, induiing wames and dates;'\ that he now resides in , and has resided there for the space of years last past, and that previous thereto he resided in ;* and that he has not been employed, or paid, in the army, navy, or marine service of the United States, from the day of ,to * Sworn and subscribed, this ) A. B. 'J day of ,18 , before me, G, H., Justice of the I*eace.* 4 § 822.; Certificate, where Pension has not been Brawn for Fourteen Months~-to be Annexed to the Foregoing Deposition. State of County, May 1st, 1849. I, Q. H., a ma^trate in the coimty above named, do hereby cei- tify, that I have the most satisfactory evidence, viz : [state what the evidence is, whether personal knowledge, or the affidavits of respect- oMe persons, giving their names f^ that A. B., who has this day ap- peared before me to take the oath of identity, is the identical person named in the pension certificate, which he has exhibited before me, numbered , and bearing date at the War Office, the day of , 18 , and signed by W. L. M., Secretary of War. Given under my hand, at , on the day and year above written. G. H., Justice of the Peace. 1 Where the pension has been increased since the certificate was given, the magistrate must note that fact. In tlie case of a revolutionary pensioner, that part of § 821 between tlw two '» may be omitted. PENSION VOUCHERS. 455 § 823. Certificate of the Cleric, to Accompany § 822. State of New York, \ 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 , dnd will expu-e on the day of ,18 ; and that his signature above written is genuine, r. „ -1 Given under my hand, and the seal of said county, this ■• ' day of , 18 . W. B., Clerk. § 824. Power of Attorney, and Acknowledgment. Know all men by these presents: That I, A. B., of , a revolutioijary \or, an invalid, us the case may be,"] 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 pajdng 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 J CD. State of ,) . 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 administrir 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 ,) g. County, f Be it known, that on the day of ,18 , before the subscriber, a Justice of the Peace in and for said coimty, duly au- thorized by law to administer oaths, personally appeared E. F., the attorney named in the foregoing power of attorney, and made jath 456 HEW 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, f , G. H., Justice of the Peace. § 826. Oath of Qwxrdmnfor Pensiotier. State of » I • 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 admrnist^ oaths, per- sonally appeared G. H., guardian of A. B., and made oath, in due form of law, that the said A. B. is still living, and is the identical person named in the original certificate in his possession, of which (I certify) the following is a true copy: \insert here a copy of the cer- tifcaie of pension, including names and dates f\ That he resides in , and has resided there for the ^pace of years past, and that previous thereto he resided in Sworn and subscribed, this ) G. H., Guardian, day of > 18 , before me, ) H. T. C, Justice of the Peace. § 827. Oath of a Widow, a Pensioner. State [or. Territory] of » l ss- County of ,) ' 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, induding 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 fuUy satisfied. Sworn to and subscribed, this ) M. B. day of ,18 , before me, ) G. H., Justice of the Peace. PENSION VOUCHERS. 457 § 828. Oaih of a Widow, who drew a Permon vmder the Act of March 3rf, 1843. United States of America, State of Cotmty, Be it known, that before me, Q. 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 husband,'] 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 I7th 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 vx Sworn to and subscribed, this day 1 M. B. of , 18 , in presence of [• R P. before me, ) Qt. H., Justice of the Peace. § 829: Oath itf Identity for the Widow, or Child, of a Deceased Pensioner. State of »lss: County, 5 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, m 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 befop» his death; and thai previous thereto he resided in Sworn and subscribed, this ) MB. day of , 18 , before me, S G. H., Justice of the Peace. 1 Where the pension has been increased, the magistrate should I'lt* l>4'»« W« above form may be used for an executor or administrator, by aubstuutins the mim exwutor " or "administrator" for "widow." 458 • jjEW CLERK'S ASSISTANT. § 830. Power of Attorney for the Widow, or GUM, of a Deceased Pensioner} Know all men by these presents; That I, M. B., of , in the county of , State of i , widow [or, child,] of A. B., who was a revolutionaiy [or, an invalid] pensioner of the United States, do hereby constitute and appoipt 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 , 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. a] in presence of J . CD. § 831. Certificate of the Court as to the Death of a Pensioner. State of , ) County of .- j"^®" 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 child, or, left children,] whose name is [or, whose names are] M. B., [or, R B., C. B., &c., &o.] [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 hereimto set my hand and afiSzed r -1 my seal of office, at , this day of , ' ■-' in the year of our Lord 18 W. B., Clerk of the § 832. Oath where Pension Certificate is Illegally Withheld. State of » I • 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. 1 For forms of acknowledgment, and attorney's oath, see §§ 824 and 825. Where one of the children Is appointed b^ the others to receive the balance, the attorney's oath is nitt required* PEiraiON VOtJOHEES. 459 personally appeared A. B., and made oath, in due form of law, that lie [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 amovmi to which the pensioner is entitled at the time of making the oath,] 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 Swom and subscribed, this ) A- B. day of , 18 , before me, J G. H., Justice of the Peaca nty, f-ss: 9. ) § 833. Certificate of Magistrate and Clerk, to Accompany § 832. State of Coimty, May 1st, 1849. Conformably to the regulations of the War Department of the 27th of October, 1S32, 1, G. H., a magistrate in the county above named, do hereby certify that I have the most satisfactory evidence, viz : [state what the evidence is; whether 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 imder 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 ■■ and subscribed my name, this day of « ^ ' in the year W. B., Clerk of the Court cf county CHAPTER XXXIV. PLANK iNI) TUENPIKE EOABS. TRACTICAL REMAKES. 1. Any number of persons, not less ttan five, may form them- selves into a corporation for the purpose of constructing and owning a plank or turnpike road, imder 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 county 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 oflSce of the Secretary of State ; and thereupon the subscribers wiU become 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 till 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, certified 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. S:0; Id., chap. 287 j I Laws of 1849, chap. 250: Laws of I860. H., 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 through any part of any county, application must be made to the Board of Supervisors, notice of which must be pub- lished for six successive weeks, in all the newspapers prmted 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 line 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 vot^ 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 coimty. 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 fi'uit 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 io 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 take possession of the lands described in the survey, provided the same be purchased of the owners thereof But if, on account of the ina- bility 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. jiterested, take testimony, and ascertain and assess tte damages. The verdict of the jury will be final, unless application be made within twenty day? to the Supreme Court for a new trial, and un- less such apphcation 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 Supervisors 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 line 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 ail 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, signed, acknowledged, and recorded, no application to the Board'of Supervisors will be necessary ; otherwise, die dama- ges must be ascertained by a jury to be called by the 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 with the consent of the owners of adjoining lands ; and the Commissioners, or Inspectors, may fix 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 imles of their proposed roac^ they may apply to the Inspectors, or a majority of them, to iiispect the road; and if such inspectors, or a majority of them, certify that a sufficient num- ber of mile's of road have been constructed according to law, upon filing their certificate, the Company wUl be authorized to take toll Toll gates, however, are not 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 PLANK EOADB. 463 per mile to be added for each additional animal more than two ; three-quarters of a cent per mile, for every. vehicle drawn "by one animal; or half a cent per mile, for every 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 ammal; 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 mile, for every score of sheep or swine. Rates 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 haK tolls are to be exacted from them at such gate.i 13. Persons going to or from any court to wjiich they have been summoned as jurors, or subpoenaed as witnesses ; going to or from any training at which they are by law required 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 purpose 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 frorii any grist mill or blacksmith's shop, where they ordinarily get their grindmg 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 ninCj 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. 16. 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 then- 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 1 Caines' 182; 23 Wendell, 193. 464 NEW CLERK'S ASSISTANT. 16. Branches may be constructed by plank road companies, witL ube 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. 1^. The inhabitants of any road district in the State may grade, gravel, or plank, the road or roads in such district, by anticipating the 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. FOEMS. § 834. Notice of Sribieriplion, FLAKK ROAD NOTIOB. 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 Eoad Company," will be opened at the house of 0. P., in the city of , on the day of , 18 , and that such books wiU 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 Formaiion of a PlanTe Boaa Company. Articles of Association made and entered into this day of , by and between the persons whose names are hereimto subscribed, Witnesseth: First — That we, the undersigned, do hereby form ourselves into a Corporation, for the purpose of constructing and owning a Plank Boad 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. PLANK ROADS. 465 Third, — The capital stock of said Corporation shall be dollars, and shall be divided into shares, of dol- lars each. Fourth — There shall bb Directors of said Company, and A. B., C. D., &c., of the town of , Highways of ths E. F., ) Town of 468 NEW CLERK'S ASSISTANT. § 842. Acknowledgment of a Survey. State of New York, ) ^^^ County, f On this day of , 18 , before me, personally appeared A. B., C. D., and E. F., Comnussioners appointed by the Board of Supervisors of the counly 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, witlun} survey of the said road, were true and genuine. G. H., Coimty Judge. \_0r any officer authorized to take acknowledgments.'] § 843. Notice to Pay in Installment. Office of the Road Ciompany, J July ,18 . f Sir: By order of the Board of Directors of the Eoad Company, * you are required to pay in to the Treasurer, at his office in , a second installment of per cent on your stock, on or before tide day of ' , 18 . Yours, &c., S. 6., Secretary. To Mr. A. R § 844. Proa^. [For Proxy, Oaths, and Affidavits, Power to receive Dividends, and other forms vaed by Corporations or Stockholders, see Chapter vn.] § 845. Notice of Drawing Jwry 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 9'clock A. M„Hon. J.P.R, County Judge of county, wUi ' For other forms, where the signatures are proTed by a subscribing witness, or the parties Sre not known to the officer, see Chap. I. PLANK EOADS. 469 attend a drawing from the grand jury-box of county, at the office of the County Clerk, in the city of Auburn, said drawing to be made by E. B. C, County Cleric of Cayuga coiuity, pursuant to an order of said Judge, of twenty-four competent and disinterested Jurors, and as many more as said Judge shall direct, to ascertain the compensation and damages of each person pwning land on or ad- joining the line of the road, running through lie 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., S. T., and V. W., Commisianers duly appomted by the" Board of Supervisors of county for such purpose; and also to ascertEiin the compensation and damages of the town of ' , for taking said road to construct a plajok road thereon, [or, of the persons owning land on the line of the said proposed road'] By order of the Board of Directors. S. O., Secretary § 846. Ifotice of Meeting of Jwrj. Office of the Company, ) July ,18 .J To Mr. A. B. : Please take notice, That a jury drawn in pursuance of the Statute in 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 ascertam such damages and compensa- tion. By order of the Board of Directors. 8. O., Secretary > Ifthejury are teassesa the damages both of the town and private mdivJdoxls, it ehoak) be mentioned in the notice. CHAPTER XXXV. POOR LAWS. PRACTICAL REMARKS. 1. The father, mother, and children, who 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^ 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, mother, 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.'^ 3. Every person who is blind, lame, old, sick, impotent or decre- lit, or, in any other way disabled, or enfeebled, so as to be unable by lis work to maintain Mmself, must be maintained by the county oi town in which he may be.^ UR.'S. (3iJed.,)782,Sl.etseq.: 7 Cowen, I »1R. S. (3ded.,)783, §8, et seq. ; Id., 784 S35. U 13 J 21 Wendell. 181. «1R. S. (3d.i.,)784,514. hi POOR LAWS. 4~1 4. Three County Supermtendente 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 sei-ve 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 oflBce for three years.' 5. Every person elected to the office of Coimty Sttperintendent 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 Coimty 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 all 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.' 7. 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 Ijheir 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 be 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 fuU 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, will be deemed settled in such town, so far as the provisions of law relative to the support of the poor are concerned.' ' Laws of 1847, chap. 498; Laws of 1849, 1 292; 10 Wend., 612; 4 Hill,S53; 8 Paige ,409. chap. 116. I * 1 R. S. (3d ed.,) 798, (. 81 ; Laws uf 1842, a Laws of 1848, chap. 327 ; Laws of 1860, chap. 214 ; Laws of 1849, chap. 100. ehap. 12. » 1 R. S. (3d ed.,) 799, 6 § 85, 86. » 1 R. S. (3d ed.,) 785, § 18, et seq ; Laws 'IRS. (3d ed.,) 783. « 33 ■ Laws o' 1830 •f 183J , chap. 277 ; Laws of 1832, chap. 26, | chap. J20. 472 HEW CLERK'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 wUl 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 reUef 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 reUeve poor persons within their respective towns, previous to their removal to the coimty house, but at the expense of such towns. The names of the persons so relieved must be entered in a boojs, 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. AH idle persons, who, not having any visible means to main- tain themselves, hve 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 Conmiissioners of the Alms house.* 14. If the committee, or the relatives of a limatic or mad person, refuse or neglect to confine and maintain such person, the Overseers of the Poor may apply to any two Justices of tbe 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 Equors o; ■ Laws of 1845, chap. 180. | > Laws of 1848. chap. 176. > Laws cf 1845, chap. 334 ; Laws of 1846, | < 1 R. S. (Sd ed.,) 802, S 1, et seq. chap. 245. I e 1 R. S. (3d ed ,) 805, § i, et seq. POOR LAWS. 473 ^ any other person, not to give or sell spirituous liquors to sum drunk- ard' 16. If any woman be delivered of a bastSrd 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 bom a bastard, and to become so chargeable, the Superintendents of the Poor of the county, or any 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. Know all men by these presents : That we, G. H., C. D., and E. F., of, &c., are held and firmly bound unto the Supervisors of the coimty of , State of , in the penal sum of dollars, to be paid to the said Supervisors, for which payment well and truly to be made, we bind ourselves, our, and each of our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated the day of , 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, all moneys which shall 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 remam m full force. Signed and sealed in 1 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 K. j3. (3d ed.,) 817, 5 1, et Beq. I chap. 26 ; Laws of 1838, chap. 202 IC Jahn- > 1 R. S. '3d ed.,) 823, § 6 ; Laws of 1832, | son, 93 ; 3 Hill. 116. 474 NEW CLERK'S ASSBTANT. § 848. Application to Compel a Person to support a Poor Relative. To the Court of Sessions of the County of : The application of the undersigned, E. F., Overseer of the Poor o, the town of , in said county, respectfully represents : That A. B., a poor person, who is blind, [or, lame, old, impotent, or decrepit, as the case may SeJ so as to be unable by work to maintain himself, [or, herself,] is in the said town ; that 0. B., who resides at , in the said county, is the father of the said A. B., and has failed, at his own charge, to reUeve and maintain the said A. B. in such man- ner as has been approved by the undersigned: Wherefore, pursuant to the provisions of section 2, title 1, chapter 20, part 1, of the Re- 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 the 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 AppUcation.\ ToC. B.: You will 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 to compel 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, Bs: E. F., of the town of , in said county, being duly sworn, says, that 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 .J G. H., Justice, (fee. * A copy of the application with the above notice, should be personally served on tiie parson to whom it is directed, or be left at hia last place of residence with some person of mature age. It will he borne in mind, that in those counties where all the poor are a county charge, the application, (§ 848,) should be made by a County Superintendent and the forms from § 848 to §854, may be varied for the purpose. POOR LAWS. 475 § 851. Warrant to Seize the Chads of an Absconding Father, Husband, 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, liie said OTsrseer, 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 &aid 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 will, 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 county. Given under our hands, in the town of , this day § 852. Beturn 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 , in the coimty 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 : \state the proceedings particularly. 1 AU which is herewith respectfully re- turned. Dated,- &c., [os in § 848.] § 853. Bond to be Given by Party where Properly i^as oeen Seized.i Boiow 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 the execution of the bond and approval of the security, by any two Justices of ths town the warrant must be discharged, and the property restored. 476 HEW CLEEK'S ASSISTANT. firmly boimd unto E. R, Overseer of the Poor of th.i town of , in the sum of dollars, for the payment whereof to the said Overseer, or his successor in oflBce, 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 C. D. [l. b.J the Justices of the town of . ) § 854. Order to Discharge the Warratit, 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 cMldren 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 takes by virtue thereof to be restored to him. Given, &c., [as m § 851.] POOR LAWS. 477 § 855. Notice from one Town to unother, in a Oowniy where the ■ Towns are JAahU to Si^port their own Poor, rearing the Overseer of the Town in which the Pcmper has a Mesidence, to Provide for his Support} County, 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 imdersigned is Overseer': "i'ou are there- fore required to provide {or the relief and support of the said pauper. Dated at , this day of , 'lU . R F., Overseer of the Poor of the Town of § 856. Notice that the Allegation of Settlement will ht Contested. County, ss: To R F., Overseer of the Poor of the town of , in said ■ county: Tou 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 Se,] on the day of , at ten o'clock in the forenoon, to contest the aUedged settlement of A. B., a pauper, as set forth in your notice of the instant Dated, &c., [as in § 849.] § 857. Sithpoena of the Superintendents. Coimty, ss: The People of the State of New York, to C. D. : You are hereby required personally to appear before the under- signed. Superintendents of the Poor of the said county, at the poor house, [or, such place as is designated in the notice,"] on the day of ,18 , at ten o'clock in the forenoon, to testify in behalf of the Overseer of the Poor of the town of , in said county, concerning the alledged settlement of A. B., a pauper. Given under our hands, tWs day of ,18 G H ^ T ' M ' V Superintendents of &c.,&c.j ^^^°°'- 1 This notice should be served on the Overseer by some person who can make oath to such cervice, if the same should become necessary. If the Overseer on whom the notice is served desires to contest the settlement, he must, withiij ten days after such service, give notice to the other Overseer to appear before the Superintendents, in not less than ten and not mora than thirty days from the service of auch notice, and contest the 6ettt*«nent. The Superin- *endentB are autboRsed to issue subpoenas, and to compel the attenObacc of witnesses on the hearing. 478 HEW CLERK'S ASSISTANT. § 858. Superintendents' Decision.^ County, ss : We, the undersigned, Superintendents of the Poor of said county-j having convened, as required by the Overseer of the Poor of the town of , in said county, pursuant to notice, to hear and de- termine a controversy which had arisen between the said Overseer, and the Overseer of the town of , in said county, concerning the settlement of A. B., a pauper, do hereby decide, upon Such hear- ing, as aforesaid, that the legal settlement of the said A. B., as such pauper, is [or, is not] in the said town of . And the under- signed hereby award to the Overseer of the Poor of the town of , the prevailing party, the sum of dollars, costs of said proceeding, by him expended. Given, &o., \as in § 857.] I § 859. Superintendents^ Notice that Pauper will he supported at the Expense of a Town, in a County where the Towns Sup- port their own Poor.^ County, ss : To E. P., Overseer of the Poor of the town of , in said county : A. B. a pauper, having been sent to the poor house as a county pauper, and the undersigned. Superintendents of the Poor of said county, having inquired into the fact, and being of opinion that the said pauper has a legal settlement in the town of , in said county, pursuant to the provisions of Section 35, of title 1, of Chap- ter 20, of Part 1, of the Revised Statutes of New York, you are here- by notified, that the expenses of the support of said pauper will be charged to the town of , unless you, the Overseer of said town, within [insert the time, to be not less than twenty days'] after the ser- vice of this notice, show that the said town of ought not to be so charged. Given, &c., \as in § 857.] f * The decision i8 to be eni:ered is tbe book of the Superintendents, and a duplicate thereof filed in the.office of the County Clerk, within thirty days; such decision will be final bs4 conclusive in the premises. The costs awarded cannot exceed ten dollars. ^ This notice is to be given within thirty days after the pauper shall have been received. On the application of the Overseer, the Superintendents may re-examine the matter and take testimony, and make a final deccision therein. POOR LAWS. 479 § 860. Decision of Superintendents, after He-examining Settlement of Pauper, on Application of the Overseer — to be entered and filed m the same manner as § 858. County, ss: We, the undersigned, Superintendente of the Poor of the said county, having, on the application of the Overseer of the Poor of the town of , re-examined the subject matter of a notice duly served oij him, of which the annexed is a copy, and taken testimony in relation thereto, do hereby decide that A. B., the pauper therein mentioned, has a legal settiement in the said town of , to which, as such pauper, he belongs, [or, has not a legal settlement m said town of .] Given, &c., \as in § 857.] § 861. Certificate of a Superintendent that a Person is a Oownty Pauper, on the Application of the Overseer of a Town. County, ss: The Overseer of the Poor of the Town of , having given notice to the undersigned, that A. B., a poor person, being in said town, should be supported as a county pauper ; I do hereby certify, that I have inquired into the circumstances, and am satisfied that the said pauper has not gained a legal settiement in any town in said county, and that the said A. B. is chargeable to the said county. Dated at , this day of , 18 . G. H., Superintendent of the Pooi. § 862. Notice of Hearing on the Foregoing Certificate, hefore the Board} County, ss: To E. F., Overseer of the Poor of the Town of , m said county: Tou are hereby notified, that on the day of , at ten o'clock in the forenoon of that day, the board of Superintendents of the Poor of said coimty will proceed to a hearing of the allegations and proofe which may be then presented in relation to the legal set- tlement of A. B., in the town of ; and after such hearing. 1 Every case in which a certificate is granted must he reported to the hoard, who may, at their next meeting, affirm or annul it. Notice of the hearing should be served on the Over. seer not less than twenty days previous thereto ; and the final decision of the Superiateiideotn IS to be entered and filed as specified in the note to i 8SS. 480 :jeW CLERK'S ASSISTANT. will affirm or anniil the certificate given by G. II., one of tie under- signed, on the day of > 18 , declaring that the said A. B. was chargeable upoii the county. Given, &c., [as m § 857.] § 863. Decision of the Board of Comity Superintendents. County, ss: G. H., one of the Superintendents of the Poor of said county, having reported to the Board of County Superintendents of the Poor for said county, the case mentioned in the certificate, a duplicate [or, copy] whereof is hereunto annexed, the said board, after due notice given to the Overseer of the Poor of the town of , in said county, and after hearing the allegations and proofs in the premises, do hereby annul \or, affirm] the said certificate, and decide that the legal settlement of A. B., named therein, is in the town of in said county. Given, &c., [as in § 8S7.] § 864. Decision hy the Board of Superintendents, upon the Refu- sal of the Superintendent to give the Certificate. Coimty, ss: Notice having been given by the Overseer of the Poor of the town of , in said county, to Q. H., one of the Superintend- ents of the Poor of the said county, that A. B., a poor person, being in said town, should be supported as a county pauper, and the said Superintendent having refused [or, neglected] to give the certificate prescribed by Section 36, Title 1, Chapter 20, Part 1, of the Revised Statutes of tlie State of New York, and the undersigned, constitu- ting the Board of County Superintendents of the poor for said coun- ty, having, on the application of the said Overseer, summarily heard the matter, do hereby determine and decide that the said pauper has not gained a legal settlement in any town of the said county, and shoid be supported as a county pauper, [or, has gained a legal settlement in the town of , in said county:] And we do hereby award to the Overseer of the town of , the sum of , [not exceeding ten dollars,"] costs of said proceeding, by him in this behalf expended. Given, &c., [as in § 857.] POOR LAWS. 481 § 865. Order of the Overseer of a Town to Remove a Poor Per- son to the Gounty Poor Howe. Comity, ss : A. B. having applied for relief to me, the undersigned, Overseer of the Poor of the town of , in said cc.anty, I have inquired into his [or, her] state and circumstances, and it appearing that he \or, she] is in such indigent circumstances as to require permanent relief and support, and can be safely removed, I hereby order him [or, her] fo be removed to the coimty house, to be relieved and pro- vided for, as his [or, her] necessities may require, at the expense of said county, [or, town.] Dated, &c., [as in § 849.] §866. Certificate of the Keeper of the Poor House, for the Ex- pense of Removing a Pauper. *2. Treasurer ol County : Pay G. D. two dollars and cents for transporting A. B., from to the county poor house. , May , 18 . No. Treasurer of County : This certifies that G. D. is entitled to two dollars, and cents, at the rate prescribed by the Superinten- dents, for transporting A. B. from the town of county poor house, being , May . , 18 Countersigned, No. miles. Keeper, • g; ^ Sup'ts. CD. G. L § 867. Superintendent's Order to Expend over Ten Dollars. E. F., Overseer of the Poor of the town of , in said county, having applied to me for an order authorizing the expenditure of a greater sum than ten dollars for the relief of A. B., I have inquired into the facts of the case ; and being satisfied that the said A. B. cannot properly be removed to the coimty poor house, and that he is in need of fm-ther relief, I do hereby direct the continuance of the weekly allowance of dollars, until the expenditure amount to dollars over and above the sum of ten dollars. Dated, &c., [a« in § 861.] § 868. Notice of the Improper Removal of a Pauper from another County.^ County, ss: To the Superintendents of the Poor of the county of : You are hereby notified, that A. B., a poor and indigent person, has been improperly sent, [or, carried; or, brought; or, removed, 1 The notice is to be served on any one of the Superintendents^ who must deDy|the allega. tions contained therein, within thirty days, unless they acquiesce in the same. 482 NEW CLERK'S ASSISTANT. or, enticed to remove, as the case may 5e,] from the said county of , to the county of , ■without legal authority, and there left, with intent to make the said county of , to which the said removal was made, chargeable with the support of the said pauper. You are therefore required, pursuant to the provisions of Section 59, Title 1, Chapter 20, Part 1, of the Revised Statutes of the State of New Xorkj forthwith to take charge of such pauper. Given, &c., [as in § -857.] § 869. Annual Beport of the Superintendents of the Poor, to the Secretary of State. The Superintendents of the Poor of the county of , in pursuance of the provisions of the Revised Statutes for " the relief and support of indigent persons," present to the Secretary of State their annual report, as follows: The number of paupers relieved or supported during the year pre- ceding the 1st of December instant, was : of the persons thus relieved, the number of county paupers was ; and the number of town paupers The whole expense of Buch support was.: .. $ Of thia sum, there was paid for transportation of paupers, .. Allowance made to- Superintendents for tlieir services, do do Overseers, do do ,„ do do Justices, do do , do do Keepers and officers, do do do Physicians, for services and medicines, The actual value of the labor of the paupers maintained, was — ^ — The estimated amount saved in the expense of their support, in consequence of their labor, waa " The sum actually expended, over and above the labor and earn- ings of the paupers, divided by the average number kept during the year, gives dollars and cents per week, as the actual expense of keeping each person. The county poor house has acres of land attached to it, and the whole establish* ment is valued at S The number of persons in the poor house on the 1st of December instant, was Of this number,' there were of males, • do do females, Of the males, there were of 16 years of age and under, - Of the females of the same age, Of the persons relieved or supported during the year, there were foreigners; lunatics; idiots; and mutes: of the mutes, were between the ages of 10 and 25 years. The number of paupers received into the poor house during the year, was ; Bom in the poor house, Died during the year, - Bound out, Absconded, .— ' The children in the poor house, over six and under sixteen years of age, have been instructed months, by a teacher at the poor house : [or, sent to the district school house months,] and the POOR LAWS. 483 whole number of children taught during the year, was [This number is to embrace all the children, who have been taught *» the course of the year.'] Given, &c., [as in § 857.] § 870. Supervisor's Report for a Town, where aU the Poor are not a Gowniy Charge, to be made to the Cleric of the Board of Supervisors. The Supervisor of the town of , in the county of , respectfully reports to the Clerk of the Board of Supervisors, as follows : The number of paupers relieved, or supported, in said town, during the year preceding the day of , 18 , as appears from the accounts of the Overseers of the Poor, was, &c., [as in the pre- ceding form to the *, omitting the allowance to the Superintendents, and inserting such other charges as there may be, and then add.-J X)i the whole number of paupers relieved by the Overseers during the year, they report there were foreigners ; lunatics ; idiots; and mutes. The number of paupers under their charge at the time of auditing their accounts, is stated at ; of which were males, and , females. I hereby certify, that the foregoing is a correct abstract of the ac- counts of the Overseers of the Poor of the town of , for the vear ending on the day of , 18 , as the same have been settled by the Board of Town Auditors. Dated this day of , 18 . S. T., Supervisor. , § 871. Complaint against a Beggar or Vagrant. County, ss: A. B., of the town of , in said county, being sworn, says, that E. F., now in said town, is an idle person, not having visible means to maintain himself and living without employment; and is, as the said deponent beUeves, a vagrant, within the meaning and intent of the statute, and this deponent therefore complains of the said E. F. Sworn, &c., [as in § 850.] § 872. Warrant on Foregoing Complaint. Town of )gg. County, [ A. B., of the town of , in sgid county, has this day made complaint, on oath, before me, the undersigned Justice of the Peace. 484 NEW CLERK'S ASSISTANT. of the said town, tivat E. F., &c., [as in the complaint:^ You are therefore hereby commanded, in the name of the people of the State of New York, forthwith to arrest the said E. R, and bring him be- fore me, the said Justice, at my office, in , aforesaid, to an- swer to the said complaint, and to be dealt with in the premiseis according to law. Witness my hand, this day of 18 . Q. H., Justice of the Peaca § 873. Record of Conviction, of a Vagrant} * County, ss: Be it remembered, that E. F. was this day brought before me, the undersigned, a Justice of the Peace of the town of , in said county, at my office in said town, upon the charge and accusation that he was found in the said town, an idle person, not having visible means to maintain himself, and living without employment, \or, as the case may ie,] and a vagrant within the intent and meaning of the statute in such case made and provided ; and I, the said Justice, being satisfied, upon due and personal examinatioli of said E. F., and by his confession now before me had and made, [or, upon competent testi- mony now before me had and given,] that said charge and accusation ar^ in all respects true, the said E. F. is therefore duly convicted be- fore me of being a vagrant, within the true intent and meaning of said statute ; and it appearing to me that the said E. F. is not a no- torious ofifender, and that he is a proper object for relief, I adjudge and determine that said E. F. be committed to the county poor house of said county, \or, the alms house ; or, poor house of the said town,] for the term of forty days, there to be kept at hard labor ; \or, it appearing to me that said E. F. is an improper person to be sent to the poor house, I do therefore adjudge and determine, tijat the said E. F. be committed to the common jail of said county for the term of thirty days.] Given under my hand and seal, this day of , 18 . G. H., Justice, <&c. [i. s.] § 874. Gommitment. Couniy ss : To any Constable of said Coimty, greeting Whereas E. F. has been this day duly convicted before me, the undersigned Justice of the Peace of the town of _ , in said county, of being a vagrant ; and inasmuch as it appears to me that ^ It \9 the duty of every peace officer to take any person whom he may discover to be a va- grant, before a magistrate for exammation. In such cases, no complamt or warrant will be Becessary, The Justice has the power to commit a vagrant to the poor house for ii term not exceeding six months, and to tlie county jail not exceeding sixty days ; in the latter case, the POOR LAWS. 485 «aid E. F. id not a notorious offender, and is a proper subject for relief, [or, is an improper person to be sent to the poor house,] I have adjudged that the said E. F. be committed as hereinafter expressed : You are therefore hereby commanded, in the name of the people of the State of New York, to convey the said E. F. to the county poor house, [or, alms house ; or, town poor house,] the keeper whereof is required to keep him therein, at hard labor, for the term of forty days ; [or, to convey the said E. F. to the common jail of said county, the keeper whereof is required to detain him in safe custody therein, for the term gf thirty days.] Given, - plication for the arrest is made by a Superintendent, he is required to do the same. 486 NEW CLERK'S ASSISTANT. property of others,] if permitted to go at large ; and no provision having been made, either by the relatives, or any committee, for con- fining and maintaining such lunatic, the undersigned, two of the Jus- tices of the Peace of said town, on the application of the Overseer of the Poor of said town, [or, upon our own view,] being satisfied, upon examination, [or, upon information on oath to us given,] that the said A. B. should be forthwith confined : You are therefore hereby comitanded, to cause the said lunatic to be safely locked up in such secure place as said Overseer may provide, in conformity to law. Given, &c., [os m § 851.] § 877. Notice to Tavern Keeper — Designation of Habitwd Drunkard, &c.' Town of , ) Comity, j ^ • I, the undersigned. Overseer of the Poor of said town, having dis- covered A. B., of said town, to be a habitual drunkard, do hereby designate him as such habitual drunkard, and describe him as follows : [description ;] And every merchant, distiller, shop-keeper, tavern- keeper, or other dealer in spirituous liquors, is required not to give or sell, ujider any pretence, any spirituous liquors to the said A. B. Dated, &c, \as in § 849.] § 878. Notite to Overseer hy Justice. To E. F., Overseer of the Poor of the Town of ' : Tou are hereby notified, that A. B., who has been designated by you as a habitual drunkard, has applied to me for a process to sum- mon a jury to try and determine the fact of such drunkenness : And that I have fixed upon the day of instant, at o'clock in the noon, at my oflSce in said town, as the time and place for such triaL Dated , this day of , 18 . * G. H., Justice of the Peace. ' Copied of the notice eliould be personally served on all persons required to obey it. The person desigiiated as a drunkard may contest the fact before a jury. For that purpose, he must apply to a Justice of the Peace for a venire ; immediate notice of which, and of the time and place of the hearing, is to be given to the Overseer by the Justice. The jury are to be summoned, returned, &c., and witnesses subpcenaed, &c., in the same manner ^ in ordinarjT suits before Justices of the Peace. The verdict of the jury is to be entered by the Justice in his docket. If the jury find that the person is a habitual drunkard, judgment must be entered against him, and an execution issued for the costs ; if the jury find the -con- trary, judgment must be rendered accordingly, but no execution can be issued against the Overseer, unless he acted in bad faith, and did not have reasonable cause for making the designation. POOR LAWS. 487 § 879. Venire. County, ss : To any Constable of the Town of , in said County, greeting : You are hereby commanded, in the name of the people of the State of New York, to summon a jury of twelve persons, competent to serve on juries, to appear at my office, in , aforesaid, on the day of instant, at o'clock in the noon, to try the fact, whether A. B., of said town, is a habitual drunkard ; he having been designated as such by the Overseer of the Poor of said town ; and you will have then there a panel of the names of the jurors you shall so summon, and this precept, Witness, &c., [as in § 872.] § 880. Jurors' Oath. You do swear, that you will well and truly try the fact of the al- ledged habitual drunkenness of A. B., and a true verdict give, ac- cording to evidence. § 881. Oath of Witness. You do swear, that the evidence you shall give, touching the fact of the habitual drunkenness of A. B., shall be the truth, tiie whole truth, and nothing but the trutL § 882. JExecution Against the DrtmJcard. County, ss : To any Constable of said County, greeting : Whereas, A. B., , in said county, was designated and described by E. F., Overseer of the Poor of said town, as a habitual drunkard ; and by the verdict of a jury duly impanneled, drawn and sworn, before me, the undersigned Justice, upon the application of the said A, B.,* it is found that he is a habitual drunkard ; where- upon, I have rendered judgment against the said A. B., for the costs of the said Overseer in attending the trial, amounting to the sum of dollars : You are therefore hereby commanded, in the name of the people of the State of New York, to levy the said costs of the goods and chattels of the said A. B., (excepting such goods as are exempt by law from execution,) and bring the money which you shall collect, within thirty days from the date hereof, before me, at my office in , to render to said Overseer ; and if no such 488 NEW CLERK'S ASSISTANT. goods and chattels, or not sufficient to satisfy this execution, can be found, you are further required to take the body of the said A. B^ and convey Tiim to the common jail of said county, there to remain until this execution be paid, or he be thence discharged according to law. Witness, &c., [as in § 872.] § 883. EiieeiUion Against the Overseer. County, ss : To any Constable of said County, greeting : Whereas, A. B., &c., \as in § 882, to the*, and then add :] it is foimd that he is not a habitual drunkard ; and inasmuch as it ap- peared to me that the said Overseer of the Poor did not act in good faith, and that he had not reasonable cause to believe the said A. B. to be a habitual drunkard, I have entered judgment against the said E. F., Overseer, for the costs of the said A. B., amounting to the sum of dollars : You are therefore hereby commanded, in the name of the people of the State of New York, to levy the said costs, &c., [as in an ordinary execution.^ § 884. Revocation hy the Overseer, where a Drunkard Reforms. County, j Being satisfied that A. B., respectuij, whose drunkenness a notice has heretofore been given by me, [or, by 0. P., Overseer of the Poor of said town,] has reformed and become temperate, I do hercbv revoke and annul the said notice. Dated, &c„ [as in § 849.] § 886. Qomplaint against a Disorderly Person} County, ss. A B., of said town, being duly sworn, says, that C. D. is, as tho said deponent beheves, a disorderly person, within the meaning of 1 The Justice issues his warrant on the complaint, in the same form as in § 873. except that it is drawn in accordance with the charge in the complaint. Upon the examination of the olfender, if the charge is sustained h^ his own confession^ or oy competent testimony, tho Justice may require liim to find sureties for his good behavior for one -year. If the offender do not find' sureties, the record of conviction must be ei^ed, and he be committed to .iail until such sureties be found, or he be discharged according to law. The forms, § 873 and § 874, may be varied so as to be applicable to this proceeding. (.1 R. S., 3d ed., 819, § 1. et seq. ; Laws of 1833, chap. )1 : 1 Hill, 355; 6 Id., 75.) ' POOR LAWS. , 489 the statute in such case made and provided; m this, to wit: that the said C. D., [insert the facts on which the charge is founded, and con- clude as in I 871.] § 886. Recognisance of a Disorderly Person. County, ss: We, C. D., E. R, and L. M., of , in said county, ac- knowledge ourselves mdebted to the people of the State of New York; that is to say, the said C. D., in the sum of dollars, and the said E. F., and L. M., each in the sum of dollars, to be respectively made and levied of our several goods and chattels, lands and tenements, to the use of the said people, if default shall be made in the condition following: The condition of the above recognizance is such, that if the said C. D. shall be and continue of good behavior towards the people of the State of New York, for the space of one year from and after this day, then such recognizance to be void; otherwise of force. Taken, subscribed, and acknowledged, ) before me, this day of , 18 . J Q-. H., Justice, 18 , before me, j G. H., Justic& § 891. Examinaiion After Birth. County, 8S : E. B., of the town of , m said county, being duly sworn, says, that on the day of last, she was delivered of a POOR LAWS. ' 491 bastard child, which is chargeable [or, likely to become chargeable] to said county ; [or, to the town of , in said county ;] arfd fiat C. D., of, &c., [as in § 890, to the end.] § 892. Warrant to Apprehend Reputed Father} County, ss : To any Constable of said County, greeting : Whereas, E. B.,of , in said county, upon her examination, on oath, before me, the undersigned, a Justice of the Peace of said county, this day had, did declare that, &c., [cm in the examination:] And whereas, E. F., Overseer of the Poor of said town, [or, one of the Superintendents of, cute the bond authorized by statute, as aforesaid. Given, &c., [as in § 861.] 500 NEW CLERK'S ASSISTANT. § 908. Warrant to Seise the Property of Absconding Father of Bastard. County, ss. : To E. R, Overseer of the Poor of the town of , in said county, [or. To the Superintendents of the Poor of said county :] It appearing to us, two of the Justices of the Peace of said county, as well by the representation and apphcation to us made by the said Overseer, [or, the said Superintendents,] as upon due proof of the facts before us given, that C. D. is the father of a bastard child,, whereof E. B., of said town, is now pregnant, and which, when born, is Ukely to become chargeable to said town, \or, county,] [or, that C. D. is the father of a bastard child lately bom in said town, of E. B., and which is chargeable, or Ukely to become chargeable, to said town [01% said coimty,] and that said C. D. has absconded from said town, which is the place of his ordinary residence, leaving in said county some estate, real or personal :] We therefore authorize you, &c., [as in § 851.] § 909. Order reducing the sum to he Paid ly the Father or Mother of a Bastard CAiM. County, ss: To E. R, Overseer of the Poor of the town of , in said county; [or, the Superintendents of the Poor of said county:] Whereas, by an order of filiation by us made, bearing date the day of last, we did determine that C. D. was the father of a certain bastard child, then lately bom in , aforesaid, of one E. B., and did thereupon direct, among other things, that the said C. D. should pay to you, the said Overseer, [or. Superintendents,] for the support of said child, the weekly sum of one dollar, so long as said child should continue chargeable to said town, [or, county :] And whereas, upon the application of the said C. D., we have this day inquired into the circumstances of the case, and heard the proofs and allegations to us submitted in relation thereto; and it appearing to us, upon such inquiry, that the circumstances in relation to said bas- tard child, render it proper and expedient that the sum required to be paid by the said C. D., by our former order, should be reduced as hereinafter expressed ; and inasmuch as you, the said Overseer, [or. Superintendents,] have shown before us no sufficient reason against such reduction, although appearing before us, [or, notified to appear before us and show cause, ijf any you might have :] We do, therefore- reduce the sum required to be paid by tixe said C. D., by our former «)rder as aforesaid, to the weekly sum of Given, &c., [as in § 851.] POOR LAWS. 50 i § 910. Notice, hy Superintendent, or Overseer, that Applicatimt will be made to the Cowt of Sessions to increase the Amount Payable in the Order of Mliation} To CD.: You -vpill take notice, that I shall make application to the next Court of Sessions of the county of . , to be holden at , in said county, on the day of , at ten o'clock in the forenoon, to increase the sum directed to be paid by the order of filia- tion, of which the annexed is a copy, for the support of the bastard chUd named therein ; which said application will be founded on the aflSdavits, copies of which are also hereto annexed. Dated , this day of , 18 . L. M., Superintendent of the Poor. § 911. Notice, to be given to Superintendent, or Overseer, for Re- ducing Amount in the Order of FUiation. To L. M., Superintendent, \or, E. F., Overseer,] of the Poor : You wiU take notice, that I ^hall make application to the next Court of Sessions of the county of , to be holden at , in said county, on the day of ,18 , at ten o'clock, in the forenoon, to reduce the amoimt directed to be paid by the order, &c., [as in% 910, except that the notice must be signed by the other party."] § 912. Notice of Appeal from Order of Filiation} To G. H., and S. T., Esqrs., Justices of the Peace of the County of : You will take notice, that the undersigned, conceiving himself ag- grieved by the order made by you, of wmch a copy is annexed, here- by appeak therefrom to the next Court of Sessions, to be holden m said county. Dated , this day of , 18 . C. D. '*■ The above notices. ( § 910 and § 911,3 with the accompaDying papers, must be served oa the party to be notified, at least tea days before the application is to be made. 3 An appeal may be made to the court by the reputed father^ or by the Superintendent or Overseer, from any order or determination of the Justices, notice of which, with a copy of the order, must be served on such Justices, and on the opposite party. (1 R. S., 3d ed., ^7« §24.) CHAPTER XXXVI. POWERS OF ATTOENEY. PRACTICAL REMARKS. 1. A letter, or power of attorney, is a ■written delegation of au- thority, by ■which one person enables another to do an act for him. 2. Where a po^wer is special, and the authority limited, the attor- ney cannot bind his principal by any act in ■which he exceeds that authority; but the authority of the attorney wUl be so construed, as to include all necessary means of executing it ■with eflFecti 3. An authority to enter up a judglnent against two persons, ■will not warrant a judgment against one alone." 4. The declarations of one holding a letter of attorney, made in the course of his dealings as such, ■with a third person, -will bind the principal equally ■with tihe articles to which they relate.' 5. Written powers are always to receive a strict "interpretation.* 6. The adoption of one part of a transaction, done under an as- sumed agency, is an adoption of the whole.' T. Notice given to an agent, relatiag to business which he is au- thorized to transact, and while actually engaged in transacting it, win in general enure as notice to the principal' 8. Where an act of agency is required to be done in the name of the principal, under seal, the authority of the agent must be under seal An authority to convey lands must be in writing; though it is otherwise of a contract to convey.' ' 13 Johnson, 307 i 18 Icl.,363j 1 Hill, 155: Sid., 262. a 1 Hill, 155. « 3 Hill, 262. <3BiU. 263. »24 Wendell, 325: 3 Hill, 652: 6 M., 107, 137. • 9 Johnson, 163 ; g Hill, 101. I2R. S. C3d ed.,1 194, § 6, ot sen. ; 6 Won- dell, 461 ; 10 Id., 436 ; 13 Id., 481 ; 16 Id., 25, 28; 2 Hill, 485; 5 Id., 107. POWERS OF ATTOENEY. 503 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 prmcipal ; 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 vrill 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. FORMS. § 913. Oeneral Form of Power of Attorney.* Know aU 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., o^ &c., 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. ' 2 R. S. C3d ed. ,) 47, §§ 45, 46 ; 10 Paige, 346. » 2 R. S. (3d ed.,) 47, 5 47 ; Laws of 1835, chap. 275. .' 11 Johnson, 47- 12 Id., 34,'); 6Cowon,489. * For different fonns of .acknowledgmenta, to accompany powers of attomej,' when no. cessary, eeri Chapter I. 504 NE-w CLERK'S ASSISTANT. requisite and necessary to be done, in and about the premises, as fully, 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. [l. s.] the presence of J G. H. § 914. Power of Attorney to Collect Belts. Know all men by these presents, &c: \as in § 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, which 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 reading or being in the State of ;] giving and granting imto my said attorney, &c., [as in § 913, to the end] § 916. Power to Collect Rents. Know all men by these presents, 1 Johnson's Cas. 145; 2 Johnson, 378; < 18 Wendell, 319 ; 1 Hill, 186. 5 M.,72 ; 7 Cowen., 334; 2 Hill, 291 j 4 Id., » 3 Denio, 238. 104, 107. I • 8 Paige, 229. 510 ■ NEW CLERK'S ASSISTANT. ■where the party executing it has a present interest, or a present right to take eflfect in future; and it must be delivered to the witness him- self or to a third person, for the use of the witness, before his com- petency will be deemed to have been restored.' F E M S. § 925. Qtnerdi Form of Becdpt on Account. $50. Albany, May 1, 1847. Received of C. D. fifty dollars, to apply on account. A.B. § 926. Receipt in JFvU. $110 10. Albany, May 1, 1847. Eeceived of C. D. one hundred ten dollars and ten cents, in fuC of all demands against him. A. B. § 927. Receipt for Money paid hy Third Person. 8100. Albany, May 1, 1847. Received of C. D., by the hand of E. F., one hundred dollars, tc apply on account of said C. D. A. B. § 928. Receipt for Money on Bond. ?200. Albany, May 1, 1847. Received of C. D. two hundred dollars, to apply on his bond, dated the day pf ' > 18 , being the same sum this day in- dorsed on said bond. A. B. § 929. Receipt for Interest Money. $140. _ Albany, May 1, 1847. Received of C. 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 tha sum of two thousand dollars, in three years from date, with annua] interest. A. B. ' 2 Johnson, 170 , 9 M., 123 ; 4 Hill, 255. RECEIPT AND RELEASE. ' 511 § 930. Receipt to be Indorted on a Bond or Contract. $140. _ Albany, May 1, 1847. Received of C. D. one hundred forty dollars, being the annual in- 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. Know iall 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, executors, administrators and assigns, remise, release, and for- ever discharge, the said C. D.,^ 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 which 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 presence of ) a t, r n ^}. H. I A. B. [l. s.] § 932. Special Releaw. Know all men, &c., \_as in § 931, to the *, and then add:'j arieing out of any dealings, or transactions, between myself and the said C. D., at my store in the city of In witness, &&, [as in § 931.] § 933. Release by Creditor Named in an Assignment. Know aU men, &c., [as in § 931, to the *, and then add:'\ saving and excepting, however, and without prejudice to, all my rights, 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. F., upon the trusts therein expressed and declared. In witness, &c., [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. R, 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 Ins heirs and assigns, all that part of the said mortgaged lands, boimded 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, clear, and discharged of and from the hen of the said mortgage. In witness whereof, the said A. B. hath hereimto set his hand and seal, the day and year above written. Sealed and delivered ) A. B. [l. s.] in presence of ) G. H. § 935. Release of Land hy a Jvdgment Creditor? In Court A. B. j against V Judgment rendered the day ot , C. D. J 18 , in the Court, in the county of : [or, before C. C, Esq., a Justice of the Peace m 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, the day of , 18 .] ' A release of a lien on real estalo, by mortgage or judgment, should be acknowledsed and recorded in the county where the premises are situated. 'See note to J 934. RECEIPT AND RELEASE. 513 In consideration of dollars, to me in hand paid, the receipt whereof is acknowledged, 1 do hereby remise, 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 may have, imder 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 aU 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 . Sealed and delivered ) A. B. [l. s.] in presence of J aii. § 936. Release of a Legacy. Know all men by these presents : That, whereas, A. B., c£ , m 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 V , 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. F., ex- ecutor, [or, E. F. and G. H., executors,] as aforesaid, of the said sum, or legacy, of dollars, so given and bequeathed to me 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 wiU and testament, or against, or out of, the estate of the said A. B. In witness, &c., [as m § 931.] § 937. Release from a Party to a Witness. Supreme Court [or. Justice's Court A.B., ) A.B., ) against y against )■ Before G. H., Esq.] C.D. ) 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 deman'd wluch I now, or may hereafter have, against him, by reason of the determination of this suit, or any matter, either di- 33 514 NEW CLERK'S ASSISTANT. reotiy or indirectly brought, or to be brought, in question, in this suil, 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 against him. In witness, &c., [as mi § 931.] § 938. Rele [or, as in § 937.] C. D. ) For value received, I do hereby release A. B., plaisdff 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 mdirectly, brought or to be brought in question, in this suit, either for or against him. And I do further release Mm, &c., [as in § 937, to the endj CHAPTEK XZXVm SCHOOLS. PEAC.TICAL EEMAKKS. 1. Common Schools in the State of New York are free to all per- oxins 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 school-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 volumes in the district library, or numbering fifty children or less, between the above ages, and having > Laws of 1819, chap. 140 516 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 hbrary, 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-cas^, — ^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 hbrary moneys with those of an adjoining district, or districts, and purchase a joint library for 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 apphed 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 unlimited by law; but no tax for building, hiring, or purchasing a school-house, can exceed the sum of four himdred 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 6f 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 himdred dol- lars, for building, hiring, or purchasmg a school-house, be raised by installments ; and it wSl then become th« 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 years from the time the ori^nal vote to raise the tax was taken; and no vote to levy any such tax can be reconsidered, except at an ad- journed general or special meeting, to be held within thirty days thereafter, and the same majoriiy wUl be requisite for a reconsidera- tion as was necessary to levy the tax' 5. The following are the qualifications of voters at district meet- ' Laws of 1847, chap. 480. > Laws of 1847, chap. 480 ; 18 Johnson, 351 ; 5 HiU, 46. « Laws of 1847, chap. 480. SCHOOLS. 517 ings: The voter must be a male, twenty-one years old, or upwards, and an actual resident of the district In ad(fition to the foregoing, he must possess one or other of the following qualifications : He must be entitled by law to hold land m 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 liable 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 oflScers, and holds his oflSice 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 liim. It is his duty, on or before the first 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 sufllcient 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 pubUc, he may require further security. If the Town Superintendent fails to give such further security, within 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 tiU 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 licenses 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 mterested;) prosecutes for, and col- Laws of 1847, chap. "ISO > Laws of 1847, chap. 480 Laws of 1849, chap. 382; Liws of 1850, chap 184- 518 NE-W CLERK'S ASSISTANT. lects all fines, penalties and forfeitures ; and makes an annual report to the County Clerk, of the condition, &c., of common schools iu his town. Vacancies in the ofBce 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 oatha in all cases relating to school affairs 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 in 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^ when 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 fill a vacancy, holds the office only for the unexpired term. Where the office of 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 fill 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 bmld, hire and purchase school-houses, repair and furnish them, and attend to the custody and safe-keepkig 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 liable for all lawful contracts made by their predecessors. Joint Trustees are responsible for their own acts, and not for the acts of each other, unless by express agreement; they are not answerable for mistaken of law, or mere errors of judgment, without any fraud or malice ; • Laws of 1847, chap. 480 ; ) Denio, 141 I = L^wa of 1847, chap 480. 1 LaW8 of 1849, chap. 382 I SCHOOLS. 519 « but they are liable for fraud or neglect A contract made by all the Trustees, and signed by two, is binding ; and where any official act is performed by two, the presence of the third will be presumed, until the contrary be shown.' 11. The Trustees of each school district are required, within thirty, and not less than 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 pubUc money, and the money required by 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-hoiise door, and in three or more of the most pubUc 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 liable to taxation for school pixrposes, — or who have paid any district tax (not rate bUl) within two years preceding, — or who own any personal property, Hable 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 S't 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 sehool-house in repair, and provide the necessary fuel, it wiU 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 their respective counties, in the same manner as county taxes, a sum equal to the amount of State school moneys apportioned to such ■ Law9 of 1847, chap. 480 ; 9 Johnson, 380 ; I ' Laws of 184t, chao. 140 ; Id., chap, 1! Ifi., 114; 7 V^endell, 181; 9 Id., 17; 4 404. ■(im, 108; lDenio,214. > 520 NEW CLERK'S ASSISTANT. county, and to apportion 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 Ust 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 delivered 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 aliy 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 leaving 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 aflSx 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 public places in the district, at least five days before the meeting ; to give the hke notice of every annual meeting ; to keep and preserve aJl 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 required 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 required 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 J Laws of 1849, chap. 140. I ' Laws of 1841, chap. 267 ; Laws of 1847, » Laws of 1849, chap. 382. I chap. 480; 6 Wendell, 486; 11 14, 604; 6 » Laws of 1849, ctaafx. 882. | Hill, 646 ; 1 Denio, 214; 3 Id., 626. SCHOOLS. 521 person enrolled in the militia, required by act of Congress to be Kept by such person. The jurisdiction of a Collector is unlimited, and extends to any other district or town in the same county, or in any other county where tlie district is a jomt district, and composed of territory from adjoining counties.' 17. The Librarian of a district has charge of the library 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 ia the office of Trustee, are to be filled by the Trustees, or a majority of them ; the persons so appointed wiH hold their offices until the next annual meeting, and until others aie elected in their places.' 19. The term of office of school district officers expires at the time ci the annual meeting, and they do not hold over till 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 wiU not invalidate the proceedings, except where the omisBion was wUfnl 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 dstrict, 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 iahabitants of any school district so determine, it will be the duty of the Trustees to ascertain the amount of aU 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, )t this notice. Dated , the day of ,18 . A. B., Town Superintendent of Common Schools of the town of % § 945. AeJenowledgment of Service of the foregoing, to be Indorsed on a Copy. I, G. H., one of the Trustees of school district number , 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. H. § 946. Notice of the First Meeting in a District, to Organize} To R. F., a taxable mhabitant of District No. , m the Town of : The Town Superintendent of common schools of the town 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 reqxii- 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 appomted 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 nfeeting, at least six days before the said time so appointed for the said meeting. Dated, 30 NEW CLEEK'S ASSISTANT. and ability, to instruct a common school in this town, for one year from the date hereof Given under my hand, at , this day of , 18 . A. B., Town Superintendent of Common Schools of the Town of § 952. Instrument Annulling Teacher's Certificate.^ Town of ■ , ss : Having inc[uired into certain complaints against C. F., heretofore licensed as a teacher erf common schools of said town, and being of opinion that he [or, she] does not possess the requisite qualifications as a teacher, in respect to moral character; [or, as the case may he;\ and having given at least ten days previous notice in writing to said teacher, and to the Trustees of the district in which he is employed, of my intention so to do ; I have annulled, and hereby, do annul, the said certificate and license so granted as aforesaid. Given imdermy hand, this day of ,18 A. B., Town Superintendent of Common Schools of the Town of I 95S. Anrmal Report of the Town Superintendent, to he made to the CovMy Ckrk. To P. v.. Clerk df the County of : I, A. B., Town Superintendent of common schools of the town of , in said comity of , in conformity to the statutes in relation to common schools, do report: That the number of entire school districts in said town, organized according to law, is ; and that the number of parts of school districts in said town, is ; that the number of joint districts, the school-houses of which are situated, wholly or partly, in said town, is ; that the num- ber of entire districts from which the necessary reports have been made for the present year, within the time limited by law, is ; and that the nimiber of parts of districts from which such reports have been made, is ; that the number of schools for colored children taught in said town, during the year aforesaid, for four months or upwards, by a duly qualified teacher, was * A note la writing, containing the name of the teacher, and the time of annulling the cer Uficate, or a duplicate of the instrument, must be filed in the Town Clerk's Office. SCHOOLS. ^'^l And I do further certify and report, that the whole amount of money received by me, or my predecessor [or, predecessors] in office, for the use of common schools, during the year ending on the date of this report, and since the date of the last report, for said town, is i| ; of which sum the part received from the County Treasurer, is $ : the part from the town Collector, is $ ; . and that we have collected the sum of $ for penalties; [If nothing has been collected for penalties, omit the reference to the same; and if money has been received from any other source, specify it here:] that the said sum of money has been apportioned and paid to the several districts from which the necessary reports were re- ceived, for the purposes and in the proportions following, viz : the sum of $ for the payment of teachers' wages, and the sum of $ for the purchase of district libraries ; that the sum of $ was apportioned by me to district number , for colored children in said district, between the ages of five and sixteen years, who have attended a school taught in district number , in said town, by a duly qualified teacher, for four months during the preceding year ; and $ to district number , for colored children so attending in said district ; and that I have deducted the said several amounts from the sums by me apportioned to the said districts number and , respectively. And I further certify, that during the year before mentioned, I have not collected any fines, penalties or forfeitures ; [or, that during the year before mentioned, I have collected a penalty of $25, imposed on C. D., a Trustee of District number , in said town, for signing a false report; and that my costs and charges in such collection amounted to $ ; and that the balance of such penalty was by me added to the school money received by me and apportioned 0.-3B I No. of children taught. No. of do. over 5 and under 16, in each district. I Dolls. I Cta. Am't paid for teachers' wa- geS) besides public moneys. No. of children between 5 and 16, taught in colored schools. Am't of public money rec'd from children attending colored schools. I Cts. Am't paid for teachers' wa- ges, in colored schools, be- sides public money . No. of times visited by Town Superintendent. I No. of pupils who have at- I tended less than 2 mo. I Two mo., and less than 4. I Four mo., and less than 6. I Six mo., and less than 8, I Eight mo., and less than 10, ( Ten mo., and lesa^than 12. I Twelve months. I No. of select and private I schools not incorporated. I No. of pupils attending. No. of volumes in district library. Bated at , this 1st day of July, A. D. 18 . A. B., Town Sup't of Common Schools of the Town of • TKis eunnual report of the Town Superintendent ia to be made between the first day of July and the first day of August in each year, and is to be dated on the first day of July. Jf IS necessary for the Town Superintendent to include, also, in his report, the amount, f SCHOOLS. 533 § 964. List of Votes Taken, hy Ayes and Noes, to he kept by the District Clerk^ Names of Votere. On change of Sice of School House. On motion to build School House. On resolution to raise tax of« . On resolution to raiso tax for Apparatus. ATB8. 1 NOES. AYBS. 1 NOBB. AYES. 1 HOES. ATSa. 1 HOBS. , C. D. E. F. G. H. R. T. 0. P. 1 1 1 1 1 1 1 1 1 1 • 3 2 I 4 16 14 23 16 . § 955. Form of Minutes of Proceedings of District Meetings, to be kept by the Clerk. At a meeting of the legal voters of school district number , in the town 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, [or, of G. H., L. M., and E. F., Trustees of school district number , in the town of ; or, as the case may 6e,] in said county, to the appeal of E. R, of the said town, [or, as the case may Je,] . respectfdly showeth : That, liable for its safe keeping, and is bound to provide some suitable place for the purpose. He is also required to serve a copy of the attach- ment and inventory on the defendant personally, if he can be found, and if not, to leave the same at his place of residence. Where the defendant has no resijlence in the coimty, the copy and inventory are to be left with the person in whose possession the goods are foimd. Where a bond is given to the officer, the goods taken cannot be re- moved.' 6. On receiving an execution, it is the duty of the Constable to levy upon any property of the defendant liable to be taken, within a reasonable time. In order to constitute a levy, the property must be taken into the actual or constructive "possession of the Constable.' 7. The following property, when owned by a householder, is exempt from levy and sale on execution, viz : All spinning wheels, weaving looms and stoves, put up or kept up for use by the family ; the family Bible, family pictures and school books, used by or in the family of such person ; aU books, not exceeding fifty dollars in value, kept and used as part of the family Ubrary ; a seat or pew occupied by such person or his family, in any house or place of public worship ; all sheep, to the number of ten, with their fleeces, and the yarn or cloth manufactured from the same ; one cow, and two swine, and the ne- cessary food for them; all necessary pork, beef, fish, flour, and vege- tables, actually provided for family use, and necessary fuel for the use of the family for sixty days ; all necessary wearing apparel, beds, bedsteads and bedding, for such person and his family ; the arms and accoutrements required by law to be kept by such person ; necessary cooking utensils; one table; six chairs; six knives and forks; six plates ; six tea-cups and saucers ; one sugar dish ; one mUk pot ; one cream pot; six spoons; one crane and its appendages; one pair of andirons; one shovel and tongs; and the tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding twenty-five dollars in value. In addition to the above, necessruy household furniture and working tools and team owned by any per- son being a househplder, or having a family for which he provides, to the value of not exceeding one hundred and fifty dollars, are ex- empt from levy and sale on execution. The defendant cannot, how- ever, avail himseK of this last exemption, against an execution issued upon any demand for the purchase money of such furniture, or tools, or team, or any of the other articles above enumerated.' 8. The exemption act of 1842 does not operate retrospectively, so ' 2R.S. (3d ed.,) 329, §32; Liws of 1S31, ehap. 300 J 6 Johnson, 9 ; 20 Wendell, 238. a 2 R. S. (3ded.,) 347; S 148 ; 2 Cowen,421 ; 3 Wendell, 446; ID Id., 349 : 11 Id., MS ; 14 Id., 123; 19 Id.', 495; 2311,46^, 492;'2 Hi'll, 660.' | 3 Hill. 469 ; Sid.. 331 " 2 R. S. (3d ed.,) 464, § 23 ; L..WS of 1842, chap. 157; 14 Johnson, 434; 18 Id., 400; 1 Cowen, 114 ; 3 Wendell, 274 ; II Id., 44 : 16 Id,, 571; 19 Id., 475; 21 Id., 68; 25 (d., 3?0; SERVICE AND RETURN OF PROCESS. 555 as to affect pre-existing oontmcts. The question as to the necessity of the articles thereby exempted, is one of fact for the jury to de- termine, and not one of law.' 9. The lot and buildings thereon, occupied as a residence and owned by a debtor, being a householder and having a family, wiU be exempt from sale on execution, for debts contracted subsequent to the 1st of January, 1851, to the value of one thousand dollars, pro- vided a description of the premises be recorded as required by law. (See Chapter xxiv.)' 10. The interest of a mortgagor of personal property before for- feiture, where he has not a right of possession for a definite period, is but a right of redemption, which is not the subject of levy and sale on execution.' 11 A Constable is protected in the execution of process, provided it appear regular on its face.* 12. The party justifying the taking of property under legal pro- cess, must show he was an officer, and had lawful authority to take ' property.' 13. A levy upon the property of the defendant is a satisfaction of the judgment, except the same be abandoned upon his request, or where he has not paid the debt, or been deprived of his property.' 14. Where different articles are taken on an execution, subject to a chattel mortgage, they ought all to be sold together.' 15. Property pledged may be taken on execution and sdd ; but after the sale, it must be returned to the pledgee tiU the purchaser at the sale redeems.' 16. Where the defendaut sues for property taken on an execution agdnst him, and recovers, the original judgment is not satisfied.* FOEMS. § 1000. Return to Summons Personally Served. Personally served, July 10, 1847, [add, if necessary : and copy left with defendant, at his request] Fees, twelve and a half cents. H. C, Constable. ■ 6 Hill, 442 ; 1 Denio, 128, 462 ; 3 Id., 694 ; 1 Comstock, 129. « Laws of 1850. chap. 260. 3 1 Comstock, ^5. 4 6 Wendell, 170 ; 6 Hill, 311. > 2 Comstock, 115. « 12 Johnson, 207; 4 Cowen, 417; 7Id., 13; 23 Wendell, 490 ; 2 Hill, 329 ; 2 Comstock, 451. '4 Denio, 171. »2R. S. (3d ed.,1 464, § 21 ; 8 Wendell, 339; 23 Id, 653; 21 Id,, 117; 6 Hill, 48t 1 Comstock, 129. 9 4 Denio, 166. 556 NEW CLERK'S ASSISTANT. § 1001. Return to Svmmons Served hy Copy. ■ Seiveii by copy, defendant not being found, Jvdy 10, 1 847. Fees, twenty-five cents. H. C, Constable. § 1002. Heturn where one or more of severed Defendants are not Fomid. Personally served on A. B., one of the defendants ■within named, July 10, 1847; and C. D. and E. R, two of the defendants within named, were not found, and I have been unable to ascertain their last place of abode in the county. Fees, thirty-one cents. H. C, Constable. § 1003. Return where no Person of Suitable Age is Fofimd at the last Place of Abode of the Defe^tdant. The within named defendant was not found, nor any person of suitable age or discretion to be informed of the contents of the within summons, at his last place of abode. July 10, 1847. H. C, Constable. § 1004. Return to Warrant. The defendant arrested, and before the court in custody; plaintiff notified, [or, not notified.] July 10, 1847. H. C, Constable. § 1005. Return to Warrant where one or more of the Defendants are not Fomvd. The within named defendant, A. B., arrested, and before the court, in custody; C. D. and E. F., the other defendants within named, not found ; plaintiff notified, \or, not notified.] July 10, 1847. H. C, Constable. § 1006. Retv/rn to an Attachment. By virtue of the within attachment, I attached and took mto my custody the goods and chattels of the defendant, mentioned in an inventory, of which the annexed is a copy, on the 10th day of July, 1847 ; and immediately, on the same day, I made an inventory of the property seized, and served a copy of said attachment and inventory. SERVIOE AND RETURN OF PROCESS. 557 duly certj^ed by me, on the defendant personally; [or, I made an inventory of the property seized, and because the defendant could not be found in the county of , I left a copy of said attachment and inventory, duly certified by me, at the last place of residence of the said defendant; or, with E. R, in whose possession I found the said goods and chattels, the said defendant having no place of residence in the said county of .] July 10, 1847. H. C, Constable. § 1007. jReturn to an Attachment where Bond is Given. By virtue, &c. ; [o« m § 1006, to the end, and then add : ] but the said goods and chattels were delivered up to C. D., the defendant, [or, to E. F.,] upon receiving the bond herewith returned. July 10, 1847. H. C, Constable. § 1008. Copy of the Inventory. Copy of an inventory of property this day seized by me, by vir- tue of the within [or, annexed] attachment^ viz: [enumerate the articles.^ July 10, 1847. a C, Constable. § 1009. Bond to Prevent the Removal of Goods Attached^ Know all men by these presents: That we, C. D. and E. F., of , in the county of , are held and firmly bound unto H. C, in the sum of dollars, to be paid to the said H. C, or to his certain attorney, executors, administrators, or assigns ; to which payment, well and truly to be made, we bind ourselves, our and each of our heire, executors and administrators, jointly and seve- rally, firmly by these presents. Sealed with our seals, and dated the day of , 18 .^ The condition of this obligation is such, that if certain goods and chattels, to wit : [name the articles^ which have been seized by the above named H. C, a Constable of the town of , in the county of , by virtue of an attachment issued by G. H., Esq., a Justice of the Peace of said county, in favor of A. B., agains) the above bounden C. D., shall be produced to satisfy any execution that may be issued upon any judgment which shall be obtained by ' Tlie penalty of the Bond should be double the B'lm sworn to by the plaintifi'on his appll- ention for the attachment. 558 NEW CLERK'S ASSISTANl. the plaintiff upoathe said attachment, within six month* after the date hereof, then this obligation to be void; else of force. Sealed and delivered, ) _ _ . . in presence of i ^- ^- i-^^i RF. I approve of E. F. as Surety in the foregoing bond. Dated the day of , 18 . H. C, Constable. § 1010. iBond by Claimant of Property Attacked. Know aJl men by these presents : That we, L. M., E. F., and S. T., of, (fee, are held and firmly bomid unto A. B., No fee can be charged for administering the oath. The certificate must be filed by the Supervisor in the office of the Town Clerk, within eight days after taking the oat^ 568 HEW CLERK'S ASSISTANT. § 1029. Certificate of the Town Clerk and Justices of the Peace on the Examination of the Supervisor's Accounts, to b* entered in his book. Town of , ss : We, the undeisigned, 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 doUars and cents due from the said Supervisor to the town of , [or, as the balance may ie.] Dated ,the day of , 18 , H. F.l A.W. Justices of the G. H. Peace. S. T. R. S., Town Qerk. § 1030. Certificate of the Supervisor, to Accompany Copies of Entries in Town Cleric's Book, Town 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 , delivered to me by the town clerk thereof. Dated , tiie day of , 18 . D. E. L., Supervisor of said Town, § 1031. Notice of Supervisor, calling Special Meeting of the Boiled of Excise. [See § 429 in Chapter xvii : all the Forms used by the Commisr sioners of Excise may be found in the sam^ Chapter^ § 1032. Appointment of Commissioner of Highways to fill Vacancy. [See § 491 in Chapter xxii : all the Eorms used by the Super- visor under the Highway Act, may be found in the same Chapter!] § 1033. Report of Supervisor, where all the Poor are not a County. Charge. \See § 870 in Chapter xxxv : the other Forms required by the Super- SUPERVISORS. 569 visor in per/orming his duties vnder the Poor Laws, may he fonmd in the same ChapterJ^ § 1034. Notice to Town Svfperintendent of Common Schools to furnish Additional Security. [See § 941, in Chapter xxxviii: the other Forms required hy the Supervisor under the School Law, may befovmd 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 hy 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 ofjwrors. List of Jurors selected from the town of of , to serve for three years from the 18 . , in the county day of , Namea. Occupation, Beaidenco. R. F., [toriU the name infjtO-l S. M. &c., Ik. Farmer, Merchant, Near the gate on the Plank Road, Village of ' The Official Bond of a Commiasioner of Highwaya may bo found in Chapter xxn. (5 492) ; that of the Town Superintendent of Common Schools in Chapter xxxviu, (8 939) • that of the Town Collector in Chapter ».n,(55 1051,1062) ; and the Instrument of a Constablo in Chapter xxsi, (§804.) It is the duty of Superrisora to prosecute Commisgioners of High ways or Towa Superintendents, and their suretiea, for breaches of their bonds, or neg lect to make proper returns and pay over moneys, according to law. The Bond of the Col- .cctor, giyen to the Superyisor, must also be prosecuted by him. 570 NEW CLERK'S ASSISTANT. > Town of , ss: We, the undersigned, the Supervisor, Town ClerK and Assessors of the said Town, do hereby certify that 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. a, Town Clerk A.B.,1 B. J., V Assessors. RS.,) § 1039. Idst of Grand Jitrors from a Town. List of Grand Jurors selected by the Supervisor of the Toirn of , from the qualified inhabitants of said town. Names. Occupation. Residence. A. B., [mite lilt name infaU.] CD., Blacksmith. Cooper. Village of Corners. ] 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 BUI [The Tax BiU is a were copy of the Assessment RoU, (§ 1046, in Chapter xlh,) with another colvmn headed " Amomd of Tax " added thereto; in which column the Supervisor inserts the amov/ni 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 xul] § 1041. Notice of Election. ELECTION NOTICE. Town of ,S8: We, the undersigned, composing the Board of Town OflScers of said town, do hereby notify the electors thereof, that the ensuing general election, [or, that a special election duly ordered by the Governor of SUPERVISORS. 571 tliis Stale,] at which are to be elected the foUo'wing officers, viz : [in- sert here a list of the officers to be chosen,'\ 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 R 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 poU of the election will be opened in each district on the day of aforesaid, at sunrise, [or, at the time determined by 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.,i B. J., V Assessors. E. 8.) § 1042. Alteration of an Election District. Town of , ss: We, the undersigned, composing the Board pf 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 line 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 militaiy lots number and Election district munber two b bounded, &c., [describe the houn- 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 bornidaries.] Dated, &c., [as in § 1041.] § 1043. Division of a New Town into Election Districts.^ Town of , ss : We, the imdersigned, composing the Board of Town Officers of said town, do hereby certify that we have divided the same into three ^ within ten days after the meeting of the Board, and at least two weeks before the day of the ensuing election, the town cleric must put up copies of the certificate of division in ar least four public places in each election district, and deliver one copy thereof to an inspec tor in eaih district. 572 MEW CLEEK'S ASSISTANT. [or, as the number may S«] election districts, whicli aie bounded and described as follows, viz : Election district number one is boundbd, &e., [describe the districts asin § 1042.] Dated, &c., [as in § 1041.] § 1044. Notice of Supervisor caMing Meeting to Jill Vacancy in Office of Inspector of Elections.. To S. G., Town Clerk, [or, Justice of the Peace,] of the Town of : You are hereby notified to attend a meeting of the Supervisor, Town Clerk, and Justices of the Peace, of said town, appointed by me to be held at your office, [or, at the office of S. T., Esq.,] on the day of instant, for the purpose of filling a vacancy in the office of Inspector of Elections, in election district number , in said town. Dated , the day of ,18 Yours, &c., D. E. L., Supervisor. § 1045. Appointment of an Inspector of Elections to Jill a Vacancy, To^ni of , ss: E. F. is hereby appointed an inspector of elections in and for elec- tion district number , in said town, to fill the vacancy occasioned by the death of C. D., [or, by the removal of C. D. from the district- or, by the inability of C. D., on account of sickness, to attend at the ensuing general election.] Given under our hands, ibis day of , 18 . D. E. L., Supervisor. S. G., Town Clerk. g m'' / Justice of til CHAPTER XLn. TAXES. PRACTICAL REMARKS. 1. All lands and personal estate, within this State, -whether owned by individuals or corporations, individual bankers or banking associa- tions, are liable to taxation, with the following exceptions, viz : All property, real or personal, exenipted from taxation by the Constitu- tion of this State, or of the United States ; all lands belonging to this State, or to the United States ; every building erected for the use of a college, incorporated academy, or other seminary of learn- ing, every building for public worship ; every school-house, court- house and jail ; the several lots whereon such buildings are situated ; and the fiirniture belonging to each of them ; every poor-house, alms- house, house of industry, and every house belonging to a company incorporated for the reformation of offenders, and the real and per- sonal property belonging to, or connected with the same ; the real and personal property of every public library ; all stocks owned by the State, or by literary or charitable institutions; the personal estate of every corporation not made liable to taxation on its capital ; the per- sonal property of every minister of the gospel, or priest, of any denomination, and the real estate of such minister or priest, when oc cupied by him, provided such real and personal estate do not ex. . the value of one thousand five hundred dollars ; and all property ex- empted by law from execution. If the real and personal estate, oi either of them, of any minister or priest, exceed the value of one thousand five hundred dollars, that sum must be deducted from the valuation of his property, and the residue will be liable to taxa- tion. Lands sold by the State, though not granted, or conveyed, must be assessed in the same manner as if actually conveyed. The owner, or holder, of stock in any incorporated company, liable to tax ation on its capital, cannot be taxed as an individual for such stock.' > 1 B. S. (8d ed.,) 441, 442, $ 1, et Be). ; Laws of 1847, chap. 419; 4 Paige, 401. 574 NEW CLERK'S ASSISTANT. 2. Every person must be assessed in the town or ward where he resides, for ail -lands owned or occupied by him in such town or ward. Land not owned by a person residing in the town where the same is situated, may be assessed in the name of the owner or occupant Where a farm, or lot, is divided, by the line between two towns in the same county, or in adjoining counties, it must be assessed in the town where the occupant resides ; if there be no occupant» then each part must be assessed in the town in which the same may lie.^ 3. Every person must be assessed in the town or ward where he resides, for all personal estate owned or held by him, in his own light, or as trustee, guardian, executor, or administrator ; but if any person possessed of personal estate resides, during any year in which taxes may be levied, in two or more coimties or towns, his residence wiU be deemed and held by the assessors to be in the county and town in which his principal business may have been transacted." 4. The real estate of incorporated companies, liable to taxation must be assessed in the town or ward where the same may lie. The personal estate of such companies must be assessed in the town or ward where the principal ofiSce or place of business is located; if there be no such office, then in the town or ward where the opera- tions of the company may be carried on. In the case of toll bridges, the company owning any such bridge must be assessed in the town or ward where the tolls are collected ; and where the tolls of any company are collected in several towns, the assessment must be made in the town or ward in which the officer authorized to pay the last preceding dividend, resides.' 6. The Assessors of any town or ward may divide the same into assessment districts, not exceeding the number of Assessors. Be- tween the first days of May and July in each year, they must ascer- tain, by diligent inquiry, the names of aU the taxable inhabitants, and the taxable real and personal property in such town, or war4 and enter the same in their assessment roll; and where any person is assessed as a trustee, guardian, executor, or administrator, he must be so designated. The lands of non-residents are to be entered in the same assessment roU, but separate from the other assessments.* ' 6. If any person liable to taxation wiU make affidavit that the value of his real estate does not exceed a certain sum, to be specified in such affidavit, or that the value of the personal estate owned by him, after deducting his just debts, and his property invested in in- corporated companies liable to taxation, does not exceed a certain sum to be specified as aforesaid, it wiU be the duty of the Assessors to value such real or personal estate, or both, at the sums specified in 1 1 R. S. (3d ed.,) 443, §5 1-4 J 4 WendeU, 429. » 1 R. S. (Sa ed.,) 443, § 6j Laws of 1850, clian. 92. 9 1 R. S. (3d ed.,) 443, S 6 ; 4 Paige, 384 ; 13 WendeU, 186 ; 22 Id., 9, 23 Id., 103; 1 Hill, 616; 4 Id., 20. « 1 R. S. C3d ed.,) 444, 445, 5§ 7-11. TAXEa 575 tlie affidavit Trustees, guardians, Laws of 1849, cbap. 376. "WILLS. 587 3. The testator, at the time of making such subscription, or at the time of acknowledging- the same, must declare the instrument so sub- scribed, to be his last will and testament. 4. Thore 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. 5. 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 vsriting, or some other writing of. the testator, declaring such revocation or alteration, and executed with the same formaliSes with which the will itself was required by law to be executed ; or unless such wiU 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 hM 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 will, operate as a revocation, if there be no provision made for the wife and child. A will executed by an unmarried woman wiU 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." 7. Fraud will vitiate a will.* S. Mere imbecility vriU not avoid a will. The term '-unsound mind," in the statute concerning wills, has the same signification as non compos mentis.'' 9. A sound disposing mind, or testable capacity, is any point above idiocy or lunacy." ' 2 R. S. (3d ed.,) 124, W 32,33 ; 8 Paige, 489 ; 10 Id., 85; 26 Wendell, 331, 625; 1 Denio, 33; 1 Barbour's S. C. Rep., 526 j 2 Id., 40, 200. « 2 R. S. <3d cd.,) 124, § 34; 20 Wendell, 457; 1 Hill, 590. « 2 R. S. (2d ed.,) 124, 6, §§ 35, 36, 41 ; 1 Kent's Commentaries, (2d ed.,) S20, et seq.; 4 Johnson's Ch. Rep., 506 ; 6 Paige, 590 ; 7 Id., 99; 1 Denio,27. 4 1 Comstock, 214. K 3 Denio, 37. • 26 Wendell, 255 ; 3 Denio, 37 ; 2 Conistock, 498 588 NEW CLERK'S ASSISTANT. 10. WLere the personal estate is not in terms exonerated by a wUl, 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 tl^ereto. A testamentary provision, where the intention is doubtful, though accepted, wiU not deprive her of dower.^ 12. Lands purchased after making a wiU, 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 codicQ 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 valid, 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, Ehode 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 will can be proved by two witnesses : and if a wiU 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, without proving that efforts have been made to procure the attendance of the subscribing witnesses, as their death may be presumed.' ' 1 Comstock, 120. " 2 R. S. (33 ed.,) 27, §§ 9-11 ; 2 Johnson's Ch. Rep., 448: 2 Paige, 659; 8 Id., 325: 7 Coweii,285 ; 5 Hill, 206 ; 2 Dei.io, 430. s 2 R, S. (Sd ed.,) 124i, §6 37-40 ; 7 John- eon's Ch. Rep. 258 : 4 Keni's CommentarieB, :U r>l ) 628. *« Johnson's Ch. Kep., 876 j 1 Hill, 690. » 7 Hill, 346. » 2 R. S. (3d ed.,) 33, S 1 ; 2 JohnsoD'a Cas. 484 ; 2 Hill, 664 ; 3 Id., 166 ; 6 Id., 410 ; 1 Be- nio, 165. » 2 R. S. (3d ed.,) 126, §} 42, 43. ° 4 Keni's Commentaries, (2d ed.,) 613, BU » 7 HiU, 476. "WILLS. 589 rOEMS. § 1061. Will of Bed and Personal Estate. In the name of God, amen : I, A. B., of the town of , m the county of , and State of , of the age of years, and being of sound mind and memory, do make, publish and dbclai-e, 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 my decease. Second, I give and devise to my son, C. B., aforesaid, his heirs and assigns, all that tract or parcel of land, situate, &c., [describe the premises,^ 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 C. 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 them, 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. [t. 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., %S'^3M!'fcJt'm last wiU 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. \_0r. 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 eaph other, signed our names thereto as attesting witnesses.] C. D., residing at , in county. G. H., residing at , in coimty 590 NEW CLERK'S ASSISTANT. § 1062. Codicil 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., [Itere set forth the beqmst which the testator desires to change:'] 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 (riven and bequeathed to her ; and that the remaining part of the said legacy be given and paid to my nephew, K F. : And lastly, it is my desire that this codicil be annexed to, and made a part of, my last irill and testament as aforesaid, to all intents and purposes. In witness, &c., [as in § 1061, exc^t that the attestation will read, " as and for a codicil to his last will," County of . 5 **' On this day of , in the year of our Lord one thousand APPENDIX. 595 eight hundred and , before me, Ihere set out the name and title of the officer, state that he is acting and duly commissioned,'] within and for the county of , in the State of Arkansas, appeared in person *, to me personally well known as the person whose name appears upon the within and foregoing [here state the name of the instrument] t as the party grantor, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth, and I do hereby so certify. In testimony whbbbof, I have hereunto set my hand as such [Commissioner, Notary or Justice of the Peace,] at the County of , on the day of , 18 — . Signature and title of officer. 2. Crrantor not personally known to the officer. [Hie form is the same as im No. 1, with the exception that between the * and the t the following words should be 'inserted,] who being personally unknown to me, was by the oaths of '■, and , wit- nesses duly sworn and examined by me as to his identity, proven to my satisfaction to be the identical whose name appears upon the foregoing [nam,e the instrument.] 3. By husband and wife, joint deed of wifgs land. [Follow form No. 1 to the *, then as follows] to me personally well known as one of the parties grantor, and stated that he had executed the same for the consideration and purposes therein mentioned and set forth, and I do hereby so certify. -And I DO FUKTHBR CERTIFY, that on this day voluntarily appeared before me , wife of the said , to me well known [where the wife is not known to the officer, same as in form No. 2,] to be the person whose name appears upon the within and foregoing [name the instru- ment,] and in the absence of the said husband, declared that she had, of her own free will, *executed the same, for the purposes therein contained and set forth, without compulsion or undue influence of her said husband- In testimony [same as inform No. 1.] 4. By husband and wife, joint deed of husband's land. [Follow form No. 1 to the t, where pa/rty is known to the officer ; if not, modify by using No. 2, then as follows,] as one of the parties grantor, and stated that he had executed the same for the considera- tion and purposes therein mentioned and set forth. And I PURTHBB CERTIFY, [same as in form No. 3 to the *, contin- uing] signed and sealed the relinquishment of dower therein expressed, for the purposes therein contained and set forth, without compulsion or undue influence of her said husband. In testimony [same as inform No. 1.] 596 NE-w oleek's assistant. 5. Proof hi/ a' subscribing witness. State of Akkansas, ) County of . S Bb it hembmberbd, that on this day of , 18 — , before me \set out the name and title of officer, state that he is acting and duly commissioned'] in and for the county aforesaid * personally appeared one of flie subscribing witnesses to the foregoing [name the instruments to me personally well known, who being by me first duly sworn, on his oath stated that he saw , grantor in said deed, subscribe and seal said deed on the day of its date [or, that the said , grantor in said deed, acknowledged to hini, on the day of 18 — , that he had subscribed, sealed and executed said deed,] for the uses, purposes, and consideration therein expressed ; and that he and , the other subscribing witness, subscribed the same as attesting witnesses, at the request of the said grantor. In testimoitt whbebof [same as No. 1.] 6. Proof of handwriting. [FoUow form No. 5 to the *, continuing,'] personally came and , upon their oaths stated that the signatures of , the grantor in the within and foregoing [name the instrument,] and of , a wit- ness thereto, are genuine, and are in the handwriting of said , grantor, and witness, respectively. In testimony whbebop, [same as No. 1.] In Califobnia. 1. Grantor known to the officer. State of California, ) County of . • J **' I HEEBBT CBBTiFT, that On this day of , 18 — j personally appeared before me [here set out the name and title of the officer] in and for said county, fthe within named ,* to me personally known to be the person [or persons] described in, and who executed the [within or annexed] instrument, and who [severally] acknowledged that he [or that they severally] executed the same, freely and volun- tarily, for the uses and purposes therein mentioned. [ Where the ac- Icnowledgment is taken out of the State, add, In testimony wheeb- OF, as in form 1 of Arkansas.] [Seal.] ^ he have one. Signature and title of officer. 2. Where a wife joins. [As inform No. 1 to the*, then] and , his wife, to me person- ally known to be the persons described in, and whose names are sub- scribed to, the [within or annexed] instrument, as parties thereto, and severally acknowledged that they severally exesuted the same, freely and voluntarily, for the uses and purposes therein mentioned. And the said , wife as aforesaid, having been by me first APPENDIX. 597 made acquainted with the contents of such conveyance, acknowledged on an examination had by me, apart from and without the hearing of her husband, that she executed the same freely and voluntarily, with- out fear or compulsion, or undue influence of her husband, and that she does not wish to retract the execution of the same. [Where the acknowledgment is taken out of the State, conclude as directed in form No. 1, of this State.] [Seal.] if he have one. Signature and title of officer. 3. Grantor not personally known to the officer. [As inform, No. 1 to the*, then as fallows'] satisfactorily proved to me to be the person described in, and who executed the [within or annexed] instrument as a party thereto, by the oath of , a competent and credible witness for that purpose by me duly, sworn ; that he the said , acknowledged, [continue as in form No. 1.] 4. Subscribing mtness personally known to the officer. [As inform No. 1 to the ■^t then as follows,] , who is a competent and credible witness * and who is personally known to me to be the person whose name is subscribed to the [within or annexed, name instrument] as n witness thereto ; * and said , be- ing by me first duly sworn, stated on oath that he personally knew , who executed the [ivithin or annexed] instrument, and that he knew him to be the person described in, and whose name is subscribed to the same, as a party thereto ; and that on or about the day of , 18 — , the said , in the presence of said , and in the presence of , the other subscribing witness, vol- untarily executed the same [or, to them acknowledged that he had freely and voluntarily executed the same], for the uses and purposes therein mentioned; and that the said thereupon subscribed his name thereto as a witness thereof, at the request of the said , and that such other witness subscribed his name thereto, as a witness, in his presence. [Conclude as in form No. 2, when taken out of the State.] [Seal.] if he have one. Signature and title of officer. 5. Subsmlmg witness not personally known to the officer. [As inform No. 4, substituting for the words between the stars in No. 4, as follows,] and who is satisfactorily proved to me to be the person whose name is subscribed to the [within or annexed] instru- ment, as a witness thereto, by the oath of . In Teebitobt op Colobado. 1. WTiere wife does not, and where she does join. Tbbritoet op Colorado, } County of , 5 Be it known, that on this day of , 18 — , before me, the 398 NEW clerk's assistant. subscriber, personally came , to me personally known as the same person described in, and who executed the {foregoing or annexed] instrument of writing, and acknowledged the execution there- of to be his free act and deed, for the uses and purposes therein men- tioned. [Where the wife joins, add] : And at the same time person- ally appeared before me the within named , wife of the said , who being by me privately examined, separate and apart from her said husband, acknowledged that she signed, sealed and de- livered the said instrument in writting as her voluntary act and deed, freely and without any threat, compulsion or fear of her said hus- band. Witness my hand and official seal, the day and year first above written. Signature, title, and seal of officer. In Tereitort of Deootah. Territory op Deootah, > Comity of , 5 Be it remembered that on this day of , 18 — , before me, the subscriber, personally came , to me personally known as the same person described in, and who executed the foregoing [give a name to the instrument] and acknowledged the execution thereof to be his free act and deed, for the uses and purposes there- in mentioned. In witness WHEREOF, I have this day of ,18 — , made this certificate and hereunto set my hand. [Seal.] if he have one. Signature and title of officer. In Delaware. Form No. 1. State op Delaware, ? County of , 5 **• Be it remembered, that on the day of , 18 — , personally came before the subscribers, two of the justices of the peace for county aforesaid, t , and , his wife, parties to the [above or annexed] instrument, [if indenture say so] known to us personally, [or where not] proved on oath of , of , to be such, and severally acknowledged said [instrument or indenture] to be their act [or deed] respectively; and that the said , wife as aforesaid, being at the same time privately examined by us, apart from her husband, acknowledged that she executed the said willingly, without compulsion, or threats, or fear of her hus- band's displeasure. Witness our hands, th6 day and year aforesaid. Signatures and, titles of officers. APPENDIX. 599 2. Of a deed of a corporation. [As in above form No. 1, to the f, then as follows,] , [here give desaripUon of officer of such ccfrporaUon,'] to us personally- known, and who being by us duly sworn, deposes and says, that he resides' [give place of residence in fullj that he is [state what official position gives him the right to execute the instrument, e. g., that he is president, c&c.,] that the seal affixed to to the [within or annexed] , is the corporate seal [in the case of a bank] of the presi- ' dent, directors, and company of the said bank, and was affixed to the said by order of said directors, for the uses therein expressed ; and he by like order, did subscribe his name thereto, as president of said bank. Signatures and titles of officers. In Distkict op Columbia. 1. Where wife does not, and where she does join. DiSTEicT OF Columbia, ss. Be it ebmembbeed, that on the day of , 18 — , before us. and , two justices of the peace for — — . , a party to a certain [name the instrument] bearing date the day of , 18 — , and hereto annexed, personally appeared in our said county of ■ — , the said , being personally well known t3 us as the person who executed the said deed, and acknowledged the same to be his act and deed. [Where the wife joins, add.] ' And we do further certify that , wife of the said , party to the aforesaid deed hereto annexed, personally appeared before us in our said county of , and said , wife as aforesaid, being well known to us as the wife of the said , who executed the aforesaid deed, and being by us examined privately and apart from her husband, acknowledged the same to be her free act and deed, and that she had willingly signed, sealed and delivered the same, and that she did not wish to retract her act. Witness our hands, the day and year first above written. Signature and title of officer. In Flobida. State op Florida, ) County of , S On this day of ;, 18 — , before me, [here set out the name and description of the officer] personally appeared , to me known to be the person described in, and who executed the foregoing (.name the instrument) and acknowledged the execution thereof to be his free act and deed, for the uses and purposes therein mentioned. [Seal.] if he have one. Signature and title of officer. 600 KEW clbsk's assistant. In Geobgia. Stats op Geokgia", } County of , 5 **,' Be it eemembekbd, that on this day of , 18 — , before me, the undersigned, [here set out the name and title of the Officer'] personally came , to me well known to be the person described in, and who executed the foregoing {name the instrument}, and acknowledged the same to be his free act and deed. Signatwre and titU of officer. Proof by subsaribing tvitness. State op Gbobgia, } County of . ) **• Pbksonallt came before the undersigned Ihere set out the name and title of the officer'] in and for said county, [here set out the nams, business and residence] who being duly sworn, deposes and says, that he saw sign, seal and deliver the within deed [or other instru- ment] for the purposes therein mentioned ; that deponent subscribed the same as a witness, and saw , do so likewise as a witness. Signature of witness. Sworn to before me this day of , 18 — . Signature amd title of officer. In Iowa. 1. Chanter personally known. State of Iowa, ) County of . 5 **• This is to oektift, that on this day of , A. D. 18 — , before me [here set forth name and title of the officer] in and for said county * personally appeared , personally known to me, to be the identical person whose name is affixed to the foregoing deed, as grantor [or as the fact is,] therein named, and acknowledged the same to be his voluntary act and deed, for the purposes therein mentioned. In witness whbbbop, I have hereunto set my hand [add where a seal is used] and the seal of my office, on the day and year first above written. [Seal.] if he have one. Signature and title of officer. 2. Party not personally 'known to the officer. [As in above form to the *, then as follows,] personally came , and , both proven to me satisfactorily to be the same identical persons described in, and who executed the within conveyance, by the oath of subscribing witness thereto, who being by me first duly sworn, did depose and say that he resided in , in the county of ; that he was acquainted with said and , that he knew them to be the same persons described in, and who executed APPEHDIX. 601 the within conveyance ; and thereupon they severally acknowledged, before me, that they executed the same as their voluntary act and deed, for the uses and purposes therein mentioned. [Iw witness, etc., as inform above.} Is Kentcokt. State op Kentucky, ) County of . 5 **• Be it remembered, that on this day of , 18 — , before me [here set out the name and title of the officer,'] in and for said county, at my ofiBce personally came , and his wife, to me known to be the persons described in, and who executed the within deed and severally acknowledged that they executed the same for the uses and purposes therein mentioned ; and the said wife as aforesaid, on an examination by me, privately and apai-t from her husband, declared that she did freely and willingly seal and deliver, the said conveyance, which was then by me shown and explained to her, and that she did not wish to retract it, and acknowledged it to be her act, and consented that it might be recorded. Witness my hand and seal, the day and year above written. Signature, title and seal of officer. In Maryland. State of Maryland, j County of . J **' On this day of , in the year 18—, before me personally came , and , his wife, to me known to be the per- sons described in and who executed the within conveyance and severally acknowledged that they executed the same ; and the said wife as aforesaid, being by me first privately examined, out of the presence and hearing of her said husband, declared that she doth execute and acknowledge the same freely and voluntarily, and without being induced to do so by fear or threats by her said hus- band, and then and there in my presence did sign and seal the same, out of the presence and hearing of her husband. [Seal.] if he have one. 8ignatu/re and title of officer. In Minnesota. State of Minnesota, County of . Be it remembered, that on the day of , 18 — , before the undersigned came , and , to me known to be the identical person [or persons] described in, and who executed the fore- going [or annexed,] deed [or other instrument] and severally acknow- ledged that he [or they] executed the same freely and voluntarily, for the uses and purposes therein expressed. Signature and title of officer. 602 NEW cleek's assistant. In Mississippi. State op Mississippi, County of . On this day of , 18 — , personally appeared before me the subscriber, [here set out the name and title of the officer,'] the above [or within'] named *, who acknowledged that he signed, sealed and delivered the foregoing deed [or other instrument] on the day and year therein mentioned, as his voluntary act and deed. Given undermt hand [and seal] this day of , A. D. 18 — . [Seal.] if he have one. Signature and title of officer. 2. WTiere wife joins. [Use the form above to the *, then as follows] : and , his wife, who severally acknowledged that they signed, sealed and de- livered, the foregoing [or annexed] deed, [or other instrument] on the day4md year therein mentioned, as their voluntary act and deed, and the said , wife as aforesaid, upon a private examination before me, apart from her husband previously acknowledged that she signed, sealed and delivered the same as her voluntary act and deed, freely without any fear, threats or compulsion of her said busbaui}. [Given, conclude as in preceding form,]. In Missouki. State op Missouei, ? Covyity of . . $ **• Be it bbmembbeed, that on the day of , 18 — , before me the subscriber personally came , and [where the wife joins] , his wife, personally known to be the person [or persons] de- scribed in, and who signed the above [or annexedJAeei [or other instru- ment,] as the party [parties] thereto, and acknowledged that he [or they] [severally] executed the same for the uses and purposes therein men- tioned,[an«i where the wife joins, add] and the said , wife as aforesaid, being examined by me apart from her said husband, and made fully acquainted with the contents of the above [or annexed] deed [or other instrument], acknowledged that she executed the same, [and relinquished the dower in the real estate therein mentioned,] freely and without fear, complusion or undue influence of her said husband. [Seal.] if he have one. Signatwe and title of officer. In New Jersey. State op New Jebset, ] County I Town I On this day of , 18 — , personally before me [here set out name and title of officer,] , [where the wife joins] and , his wife, to me known to be the person [or persons] described 3 OP New Jebset, f mty of , > L of . 5 APPEITDIX. 603 in, and who executed the above, [or annexed,] deed [or other instru- ment, and having first made known to him [or thetri] the contents thereof, he [or they] [severally] acknowledged that he [or they] ex- ecuted the same for the uses and purposes therein mentioned [and where the wife joins add,] and the said , wife as aforesaid, on a private examination, apart from her husband, acknowledged that she signed, sealed and deUvered the same as her voluntary act and deed, freely and without any fear, threats or compulsion of her said husband. Signature and title of officer. [Seal.] if he have one. In Ohio. State op Ohio, \ County of .J **' Be it bemembered, that on the day of , 18 — , before me, [here set out the name and title of the officer] in and for said county, appeared personally, , [and where the wife joins add, and , his wife,] to me known, and [severally] acknowledged that he [or they] did [severally] sign, and seal, and acknowledge the within [or annexed] deed [or other instrument] as his [or their] free act and deed. [In case the wife join add] And the said , wife as aforesaid, on an examination separate and apart from her husband ; I having first read over and made known to her the con- tents of the within [or annexed] deed, [or other instrument] did de- clare that she did voluntarily sign and acknowledge the same, and that she is still satisfied therewith. [Seal.] if he have one. , Signature and title of offi^cer. In Virginia. State op Virginia, i County of . "We, and , two of the justices of the peace in and for said county, do hereby certify that , and , his wife, whose names are signed to the within writing of conveyance, personally appeared before us, in the county aforesaid, and severally acknowledged the execution of the said writing for the uses and pur- poses therein mentioned ; and the said , wife as aforesaid, being by us duly examined, privately and apart from her said hus- band, and having the writing aforesaid fully explained to her, she the said , acknowledged the said writing to be her act, and declared that she had willingly executed the same, aud does not wish to retract it. Given under our hands, this day of , 18 — . Signature and title of officer. Signature and title of officer. In West Virginia. Use the above form. It must be remembered that one justice is BufBcient to take the acknowledgment in this State. C04 NEW clerk's assistakt. Iir Wisconsin. State op Wisconsin, > County of . 5 **■ I hereby certify that on this day of , 18 — , before me [here set out the name and title of the officer] came the within [or abovel named, , and , his wife, to me known to be the person described in, and who executed the within deed, and sev- erally acknowledged the execution thereof. [Seal.] if he have one. SigrMtm-e and title ofoffixxr. AFFIDAVITS. 1. Ordina/ry Form. [Where the instrument is used in an action or other legal proceed- ing, the title should be here inserted.] , of [here set out residence and business of deponent,] be- ing duly sworn, [or affirmed] deposes and says * [here set out at length the allegations.] Signature Of deponent. SuBSCKiBED and sworn to [or affirmed] before me this day of , 18—. Signature of officer. [Where for any cause, [as where the affidavit is to be used out of the county or State,] it becomes necessary that the certificate of the County Clerk should be obtained in order to authenticate the affidavit, this should be obtained and attached to it.] 2. Of subscribing witness. [Follow form, No. 1 to the *, then as follows,] that I have true an- swers made to such questions as have been put to me in regard to the execution of the deed of conveyance [or other instilment] shown to me. So help me God.. Sworn to &o., as in No. 1. Signature of affiant. 3. Of a witness to obtain release from arrest. Tittle of cause. County of , ss. : , of , being duly sworn, says that he [or she] has been legally subpoenaed as a witness to at- tend before the [here insert the name of the court] in and for the county of — ■ , now in session at , [or to be held, giving the time] on the trial of an indictment against , on the part of ■■ ; and that he [or she] this deponent, has not been so subpoenaed by his own procurement, with intent to avoid service of process ; and further this deponent saith not. Signature of deponent. Sworn to before me this day of , 18 — . , Sheriff of county. APPEITDIX. 605 4. Bastardy ; affidavit of mother on her examination. COUNTT OP , ss. . > of the town of , in said county, being duly sworn accord- ing to law, says, that on the day of , last past, she was deliv- ered of a bastard child, which is likely to become chargeable upon said county ; and that , of , is the father of such child. Signatu/re of affiant. Subscribed and sworn to, dc., as in JN'o. 1. 5. Of arbitrators. CouNTT OP , ss. We [here set out the names of the arbitrators'] , the undersigned arbi- trators, appointed by [here set out the names of the parties appointing"], do severally swear, that we respectively will faithfully and fairly hear and examine the matters in controversy between the above named par- ties, and will make a just award therein, according to the best of our understanding. Signature of arbitrators. Severally subscribed and sworn to before me, dc, as in No. 1. 6. Ofamoimt due on judgments. COUNTT OP , ss. _ J being duly sworn, says, that he is the owner and holder of the judgment mentioned in the foregoing copy of docket of judgment, and that there is juslly due to this deponent this day, on said judgment the sum of dollars, and cents, together with interest on the same from the day of , 18 — . Signature of deponent. Subscribed, d!C., as in No. \. 7. Of personal service. [If in an action, insert Utle.] COUNTT OP , SS. , being duly sworn according to law, says, that he [here set out residence and business] ; that on the day of , 18 — , he served on , one of the defendants above named at [here set out the place of service], the "within [or annexed] summons [or no- tice], by delivering a copy thereof to him personally, and leaving the same with him, [or by tendering a copy thereof to him personally, and on his refusal to receive the same, deponent placed it in a conspicuous place at the same time saying to him : " I hereby deliver these to you."] Deponent further says, that he knows the person so served, to be the person mentioned and described in the summons as defendant therein, [or the person to whom said notice was addressed.] Signature. Subscribed, Sc., as in No. 1. 606 NEW clerk's assistant. 8. To enUtle a creditor to redeem. SuPEEMB Court, County. Judgment recovered and docketed, the day of — , 18 — , at howrs, P. M. Recovery f 575 50 Costs 17 19 $592 69 -, riff's Atty. County op , ss. , above named, a judgment creditor of , being duly sworn, says, that the true sum due on said judgment at the time of claiming the right to acquire the title of , the original pur- chaser at the shbrift's sale of the real estate of the said , in the sum of $592.69, and interest thereon from the day of , 18—. Signature. Subscribed, <6e., as in No. 1. 9. Of imprisoned, to obtain discharge. Title of action. County of , ss. , the defendant in this action, being duly sworn accord- ing to law, says, that he was committed to the jail of the said county on the day of , under and by virtue of an execution issued by , Esq., a Justice of the Peace of said county, upon a judgment rendered before him, in favor of , the above named plain- tiff, against this deponent, for the sunt of ® , damages and costs, on the day of , 18 — , and that he, this deponent, has re- mained a prisoner on said execution from the time of such commit- ment until the time of making this affidavit, to vrit, the day of , 18 — ; and this deponent further says, that at the time of such commitment he had, and still has, a family in the town of , county of , and State of , for which he provides, [where such is not the case, this clause is to be omitted'] and that at the time of such commitment he was not, nor has he been since, nor is he now, a freeholder, and further he says not. Signature of affiant. Subscribed, <&c., as in No. 1. 10. Of publication on forclosure by advertisement. State op , Citt and County op , ss. , of [ha-e give residence, State, comity, and city or town,'] being duly sworn, says, that he is the foreman in the office of the printer of the newspaper called the [here set out the name of the journal] a public newspaper printed and published in the county of where the premises described in the annexed printed notice of sale, or a part APPENDIX. 60? thereof, are situated. Deponent further says, that such notice of the inortgage sale, of which a printed copy is hereto annexed, Vas pub- lished for twelve weeks successively in said paper, at least once in each week, prior to the time specified in said notice, for the sale of said premises ; said publication having been commenced on the day of , 18 — , and continued for twelve weeks at least, succes- sively, at least once in each week, in said paper. Signature of printer. Suhscrihed, drc, as in No. 1. 11. Of resident alien, in order that he may hold real property in New Tork, [this must be filed in the office of the Secretary of State, in New York State.] State op , ) County of- . 5 **• -; , of , being duly sworn according to law, says, that he is a resident in the State of , and has been since the day of , 18 — , and intends always to reside in the United 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 him to obtain naturalization. Signatwre of alien. Subscribed, &c., as in No. 1. 12. Of posting notice of sale. County of , ss. , being duly sworn says, that on the day of , 18 — , he posted in three (3) public places in the town of , in said county, a notice of sale, of which the foregoing [or annexed] is a true copy. Signature. Subscribed, die, as in No. 1. 13. Of officer making a distress. CouNTT OF , ss. being duly sworn, says, that he is the sherifi' of said county ; that the property mentioned in the annexed inventory and affidavit was distrained by this deponent, under and by virtue of , that the amount of the penalty was $ , that the property sold for the sum of § , that I have paid the said penalty out of the said proceeds; and that I have retained the expenses of the appraisal, certificate, notice, proof, and affidavits, and of the filing of the same, amounting to $ , and that the surplus, being^the sum of $ , I have this dJly paid to the county treasurer. Signature of sheriff. Subscribed, (6c., as in No. 1. 608 XEw clekk's assistant. 14. Of service of subpoma. COUNTT OP , ss. ■ , being duly sworn says, that on the day of , 18 — , at , in said county, he served the within {or annexed} sub- poena on , therein named, by then and there showing to him the said , the said original subpoena, and at the same time giving to and leaving with him a copy of the same, and at the same j time and place giving to [or tendering] him cts., his legal fees. Signature of deponent. Subscribed, &c„ as in No. 1. 15. Of summoning jurors in plank road ease. County op , ss. , sheriff of the above named county, being duly sworn, says, that he summoned the jurors named in the annexed precept, at the times and in the manner set opposite to their names respectively, to wit : , personally, day of — — , 18 — ; , person- ally, day of , 18 — ; , by leaving at his residence , a written notice containing the siibstanfce of the precept, vith a mem- ber of his family of suitable age, on the day of , 18 — , he not being found. Signature of sheriff. Subscribed, <&c., as in No. 1. 16. Of service of award. OouNTT op , ss. , of , one of the arbitrators named in the within [or above] award, being duly sworn, says, that on the day of , 18 — , at , in said county, he served the within award, upon [here set out the parties names upon whom service was made,] by deUvering to, and leaving with them [or him] a true copy of said original award. Sigtiutme. Subscribed, dc, as in No 1. 17. Of deliver^/ of execution to sheriff. Title of action. OouNTT op , ss. , being duly sworn according to law, says, that he is the attorney for the plaintiff in this action ; that judgment was perfected, and the roll thereof filed in the clerk's office of county on the day of , 18 — , for dollars and cents, damages and costs, and a transcript thereof was filed and the judgment docketed in the clerk's office of county, on the day of 18 — , as this deponent is informed and believes ; that execution in due form of law was duly issued thereon, to the sheriff of said last mentioned county, by which said sheriff was commanded to make the said sum of dollars and cents, together with interest from the APPENDIX. 609 day of 18—, at per cent, and his fees ; and to return said execution to the office of the clerk of county, within sixty days after the receipt thereof by him, the said sheriff; and that the said execution was received by said sheriff for execution, on the day of , 18 — , as this deponent is informed and believes. That this deponent has made inquires at the office of the clerk of county, for said execution, and that he has learned that though the time for returning said execution has expired, said execution has not been returned ; and that the said judgment, nor any part thereof, has not been paid to the plaintiff, but that the whole thereof remains due and unpaid ; and that the said sheriff is in default in not returning the said execution, and in not paying over the said moneys. PlfsAtey. Subscribed, c&c., as in No. 1. 18. Procure arrest and extradition. COUNTT OP , ss. , of , being duly sworn according to law, says : That , is a fugitive from justice from the state of , where he stands charged on oath with felony, committed in that state, viz. \here set out the crime committed,^ which said acts are by the laws of this said state of , a felony. That said charge was made, on or about the day of , 18 — , by , before [here ' set out court or magistrate}, a copy of which said charge is hereunto annexed. That the said has fled from the said state of , and has taken refuge in the state of , seeking to escape from the laws and justice of the said state of , and deponent pbats that the said may be arrested and held in custody by the proper authorities of the state of , until the proper authorities of the said state of shall have have sufficient time to require, in man- ner and form as the law directs, the body of said , from the executive, and authorities of the said state of , and until the said executive of the said above named state shall make his warrant for the surrender of the body of the said , to the end that he may be taken to the state of , and there dealt with as the laws of that state, and justice shall require. Signature of affiant. Subscribed, <&c., as in No. 1. 19. Of sheriff when liable as bail, to be exonerated. Title of action. County of , ss. , being duly sworn according to law, says, that he is the sheriff of the above named county : that hy reason of the refusal or neglect of the bail taken on the arrest of the defendant in this action, to justify when thereto required by the plaintifi's attorney, it was and now is claimed by the plaintiff herein, that this deponent, sheriff as aforesaid, became and is liable to the said plaintiff as bail in said action ; [here should be set out whUt has been done, and the present state of the 39 610 NEW clerk's assistant. action]: and this deponent further says, that before, &c., said defend- ant was indicted and tried, and committed at a court of, &c., in, &c., of felony, and sentenced to State prison, and that said defendant has been committed to, and now is confined in the said State prison at , under and pursuant to said conviction and sentence, [or set out at length any other reason why he should he exonerated.} Signature of sheriff. Subscribed, d;c., as in No. 1. 20. To be annexed to proxy, in order that an attorney may vote at an election held by a moneyed corporation. State op , } County of , 5 , being duly sworn according to law, says, that the shares upon which I hereby oifer to vote by , my attorney and duly authorized agent in the above proxy, do not in any way belong, and are not hypothecated to the [here set out the name of the corporation holding the election'] , and that they are not hypothecated or in any way pledged to any other person or corporation whatever ; that such shares upon which I propose to vote, have not been transferred to me, for the pur- ?ose of enabling me to vote thereon at the ensuing election, and that have not contracted to sell or transfer them, upon any condition, agreement or understanding, in relation to my manner of voting at the said election. Signature of stockholder. Subscribed, t&c, as in No. 1. 21. To accounts rendered by officers to board of supervisors. County op , ss ; , being duly sworn, says, that he is [here set out the title of officer] ; and he further says that the the items of the annexed [or above] account are correct, and that the disbursements and ser- vices charged therein, have been in fact made and rendered, and that no part thereof has in any way been paid or satisfied. Signature of officer. Subscribed, Sfc, as in No. 1. 22. To statement ofwndairMd, deposits or dividends. State op , ? . County of . 5**- , of said county being duly sworn according to law, says, that he is the[here setoutthe title oftheofficer, together with thename of the corporaiton] ; and he further says that the above [or annexed] sched- ule of dividends or deposits remaining unclaimed in the said [here set out the name of the corporation], for the space of two [2] years next preceding the day of , 18 — , is in all respects just and true, according to the best knowledge and belief of this deponent. Signature of officer. Subscribed, &c., as in No. 1. APPENDIX. 611 23. ■ 0/ coroner, with statement to hoard of supervisors. County op , ss. -, being duly sworn according to law, says, that he is one of the coroners in and for said county, that the foregoing {or annexeS] statement and inventory of all the moneys and other valuable things found with or upon all persons on inquests have been held, by and before him, withip the time specified by such statement and inventory, and of the disposition thereof, is in all respects just and true, to the best of his knowledge and belief; and he further says that the mon- eys and other articles mentioned in such inventory and statement, have been delivered to the treasurer of the county of , and to the legal representatives of the persons therein mentioned as therein stated. Signatwe of coroner. Subscribed, Sc, as in No. 1. 24. Of pre-emption claimant. 7~'\ ««•■ State op — County of - , of , being duly sworn, says, that he claims the right of pre-emption, under the provisions of the act of Congress, entitled, "An act to appropriate the proceeds of the sales of the public lands, and to grant pre-emption rights," approved September 4th, 1841, to -the quarter of section No. , of' township No. , of range No. , subject to sale at ; and he further says that he never has had the benefit pf any right of pre-emption under this act ; that he is not the owner of three hundred and twenty acres of land, in any State or Territory of the United States, nor has he settled upon and improved said land to sell the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit ; and he further says, that he has not directly or indirectly made any agree- ment or contract in any way or manner with any person or persons whatsoever, by which the title which he may acquire from the gov- ernment of the United States, should enure in whole or in part to the benefit of any person except himself, or his lawful heirs. Signature of claimant. I , register [or receiver'} of the land ofBce at , in the above named State and county, do hereby certify that the above afS- davit was taken and subscribed before me, at my ofiBce, this day of , A. D. 18—. I Signature and title of officer. 613 NEW clerk's assistant. AGREEMENTS AND CONTRACTS. 1. For the sale of goods, as they shall he appraised. Articles of agebement made between of , and ■ of. WITNESSETH : It is hereby agreed by and between the said parties, that all and singular the household goods, furniture, and utensilfe, which are the property of the said , and contained in and belonging to the dwelling house now in the occupation of the said , [or the property may lie scheduled ; if so, it should he here referred to and the schedule annexed} shall at the joint and equal charge of the said parties, be appraised by , to be chosen by the said , and to be chosen by the said , on or before the day of 18 — , next ; when the said and , shall in writing by them signed give in their appraisement to the said parties ; and in case the said appraisers shall differ in such valuation, then they shall and must choose a third indifferent person as an umpire, to determine the same whose valuation of the said disputed goods must be given within three days after his election, and shall be conclusive when it is signed and given or tendered to the said parties or either of them. And the said doth covenant with the said , that, immediately after such valuation, made as aforesaid by the said and , or by such umpire tis above provided for, he, the said , will make an absolute bill of sale, and give possession of all the said goods, furniture, and utensils, unto the said , at the price the same shall be appraised at as aforesaid. And the said doth hereby covenant with the said , that he the said will accept the said goods at the said price, and at the time of execu- ting such bill of sale, and delivering possession of the said goods, furniture and utensils, by the said , he the said will-then pay to the said the sum in lawful money of the United States, for which the same shall be appraised as aforesaid. In witness whereof, we have hereunto set our hands and seals, this day of 18 — . Signature, [Seal.] Signature, [Seal.] Witness. 2. Agreement between two or mare persons to unite in a purchase, each to pay apart of the price and charges. Whereas we, of the first part [here give his business amd residence}, and of the second part [here give his busi- ness and residence} [and if others join add here as above} are desirous to purchase [here set out the property} now owned and in the posses- sion of . Now this agreement witnesseth, that we severally agree to and with each other, that if any one or more of us shall pur- chase the same, each of the others of us will pay his respective pro- portion of such purchase-money, and that all charges and expenses APPENDIX. 613 relating thereto shall be borne by us in equal proportions, and that any such purchase shall be for the joint and equal benefit of us all ; It IS provided, however, that the price to be paid for the said property shall not exceed dollars. In witness wheeeof, the parties to these presents have hereunto set their hands [and seals] this day of 18—. Signatures land seals. ] Signed Isealed] and delivered in the presence of Signature of witness [or mtnesses.] 3. Giving the right to make and sell an article covered by letters patent . This memorandum of agebembnt, made this day of , 1 8 — , between , the patentee, of the first part, residing at , ^nd , [here set out his business and residence,] of the s.econd part, witnesseth. Whereas, the said party of the first part, is the owner and proprietor of an invention for [here set out a description,] and of letters patent issued therefor by the United States of America, bearing date the day of , 18—; and whereas the said , party of the first part, and owner as aforesaid, for the considerations hereinafter set forth, hath agreed with the said , party of the second part, to license and authorize the said party of the second part, his executors, administrators and assigns, to make and vend the articles covered by said letters patent, [here set out the length of time during which the permission is granted.^ Now, in pursuance of the said "agreement, and in consideration of the covenants and agreements hereinafter entered into on the part of the said party of the second part, and in consideration of dollars, lawful money of the United States, paid to the said : party of the first part, by the said , party of the second part, the receipt whereof is hereby acknowledged ; the said , party of the first part, doth hereby give and grant unto the said , party of the second part, his executors, administrators and assigns, during [here set out the length of time for which the right is sold,] full, and free liberty, license, power and authority to make, vend or sell, either at wholesale or retail, [with full power to employ others under his immediate control] to make, within [here set out the limits within which the manufacture and sale can be carried on] the said invented and patented articles, and to receive to his and their own use all profits and advantages which shall or can be made by the making and. selling of the said patented articles within the said limits, and that without any let, suit, trouble or hinderance of, from or by him, the said party of the first part, his executors or administrators, or any other person or persons claiming to hold and use such invention as aforesaid, from, by, under or in trust for him or them, by virtue of the said letters patent, or otherwise. And the said party of the second part is hereby authorized to empower any number of persons within the said district, not to exceed in number, to make and vend the said articles ; these persons to have power to employ oth'ers to assist them in the manu- 614 NEW CLEEK'S ASSISTANT. facture under their immediate supervision, but not to grant rights to manufacture, to others. And the said — '■ , party of the first part, for himself, his executors, administrators and assigns, hereby convenants to and with the said , party of the second part, his executors, administra- tors and assigns, that he, the said , party of the first part, liis executors, adminstrators and assigns, will not at any time during the residue and continuance of said term, grant any license to any other person to make or vend the said patented articles within the aforesaid limits, without the special license and consent of the said party of the second part, his executors, administrators or assigns, first had in writing under his hand and seal. And it is further agreed by and between the said parties, that in case any person or persons shall infringe the said letters patent within the said limits, the said party of the second part, liis executors, administrators or assigns, may at his or their option, in the name of the said party of the first part, his executors, administra- tors or assigns, and for the use and benefit of the said party of the second part, commence, sue and prosecute all such suits or actions, as shall be judged expedient against any person or persons who shall make such infringement ; and the said party of the first part further promises to assist the said party of the second part in the prosecution of such action or actions with any evidence which it may be in his power to furnish. And for the purpose of the prosecution of such actions as may be brought as aforesaid, the said party of the first part, con- stitutes and appoints the said '■ — party of the second part, his executors, administrators and assigns, the lawful attorney irrevocably of the said party of the first part at the costs, and to the use of the said second party, his executors, administrators and assigns, to commence and prosecute in the name of the said ■ party of the first part all such suits and actions as aforesaid. In witness whebeof [as in form No. 2.] 4. Sale of good-will of trade or business with covenant in re- restraint. This memorandum of agkbement made the day of , 18 — , between [here give business and residence'] party of the first part, and [here give business and residence'] party of the second part, witnesseth : That the said party of the first part for the consideration hereinafter specified, agrees to sell to the said party of the second part, and the said '■ — party of the second part hereby agrees to buy of the said party of the first part; all [here set out the property to be purchased; it is recommended that a schedule be prepared, which should be here re- ferred to here,] at the invoice price of the said goods respectively ; de- duction is to be made for any depreciation in value to said goods, the furniture and fixtures are to be inventoried at their fair cash value. If the said parties cannot agree at the value of the property, the same shall be [here insert clause as to.appraisal as in form No. 1.] Each party must pay an equal part of the cost of such inventory, which is APPENDIX. 615 to be delivered to the said party of the second part on or before the day of 18 — . It is also distinctly understood and agreed upon, by and between the said parlies, that the good-will of the said business [here describe the business, the location, and the length ofUme tlie same has been carried o«] , is by these presents bargained and sold to the said , party of the second part, his executors, administrators, and assigns forever. In consideration whereof, the said party of the second part, agrees to pay, [here set out the terms of payment, in full.'] And the said party of the first part, further covenants and agrees to and with the said party of the second part, his executors administrators and assigns, that he will not at anytime hereafter, engage directly, or indirectly, or concern himself, in carry- ing on or conducting the business of , either as principal or agent of another, within of the aforesaid premises, now occupied by him as aforesaid for such purpose. And it is expressly understood that the stipulations aforesaid are to apply to, and bind the heirs, executors, administrators and assigns of the respective parties ; and in case of failure, the parties bind themselves, each unto the other, in the sum of dollars, as liquidated damages, to be paid by the failing party. In witness whereof, [as in Form No. 2.J 5. Where the contract is executed by agents. This memorandum op agreement, made this day of , 18 — , between , [set out business and residence] of the first part, by , his attorney, and , [set out business and residence] of the second part, by , his attorney. Wit- NESSETH, that the said party of the first part, [etc., as the case may 6e.] ^ Signature. [Seal.] By , his attorney. Signature. [Seal.] By ,h 6. Coristruction (ff a previous contract. This memoranddm op agreement, made this day of , 18 — , between , [set out business and residence,] of the first part, and , [set out business and residence,] of the second part. WITNESSETH, whereas a difierence has heretofore arisen be- tween the respective parties to these presents, in relation to their re- spective rights and obligations under a certain contract, made and entered into on the day of 18 — , between them ; and the said parties hereto, having now come to a mutual understanding and agree- ment, respecting all the matters aforesaid, and purpose to set forth the same in these presents, as declaratory of their respective rights, duties and obligations from the date hereof, henceforward, for the government of themselves under the same. Now THIS iNDBNTDBB WITNESSETH, that , party of the part, covenants, promises, and agrees to and with , party of the part, [here set out the mutual understanding and agreement.] In witness whereof, [as in Form No. 2.] 616 NEW clerk's assistant. EXCISE. 1. Ord^r appointing a commissioner. State op New Yo'kk, ? County of . 3 ®*' We, , the county judge of said county, and , justice of the sessions in said county, do hereby certify that in accord- ance with the provisions of an act of the legislature of the said State, entitled "An act to suppress intemperance and to regulate the sale of intoxicating liquors," passed April 16th, 1857, that having met in the court house in the of , the place where the county courts are held in and for said county, on the of , 18 — , and appointed , a reputable freeholder, a resident of said county, under and by virtue of said act, and he is hereby entitled to hold such office for six years from the day of , 18 — ; unless re- moved by death, or a competent tribunal for misfeasance in office. Witness our hands and seals this day of , 18 — , being the second Tuesday of May, 18 — . [O whateuer day it may 6e-] , County Judge, [Sbai,.] , Justice of Sessions. [Seal.] 2. Certificate of character. We, the undersigned, are acquainted with the above named appli- cant, and believe him to be of good moral character. Signabu/res. 3. JusUficaUon of sureties to bond. State of New Yokk, ^ • County of , > ss : City and Town of. 3 , of , one of the subscribers to the foregoing bond, being duly sworn, .says, that he is. a resident and householder \pr freeholder] within this State, and is worth the full sum specified by him in the foregoing bond, over all his debts and liabilities, and ex- clusive of property exempt by law from execution. Subscribed and sworn to before me this day of , 18 — Signatwre of officer. 4. Acknowledgment of siireities' bond. State op New York, i County of . 5 **•' I certify, that on this day of , 18 — , before me personally came the above named, [here set out the names of the obligors] known to me to be the individuals described in, and who executed the fore- going bond; and severally acknowledged that they executed the same for the uses and purposes therein mentioned. Signature of officer. APPENDIX. 617 5. Froof of signatures to petition. County op , ss ; ; -; , being duly sworn, says that he is the, [or one of the] subscribing witness [or mtnesses] to the above [or annexed] petition, and that the same was duly signed by the above petitioners, of his own knowledge. Signatv/re of witness. Subscribed, (be., as in No. 1. 6. Transo'ipt of minutes to be filed in the office of town clerk. At a meeting of the board of commissioners of excise, held in the court house in the of in and for the county of , on the day of , 18 — , the following named persons residing in the town of , in said county, intending to keep an inn, tavern or hotel in said town, were licensed to sell strong and spirituous liquors and wines therein for the ensuing year, beginning from the day of , 18 — , for the respective sum set opposite to their names. And at a meeting of said board, duly organized as aforesaid, at the place aforesaid, on the day of , 18 — , the following named persons, being store-keepers, were duly licensed to sell strong and spirituous liquors and wines, in quantities less than five gallons, but the same not to be drank at their respective places of business, viz. . A copy from the minutes. i „ Commissioners of Excise. FEES OP OFFICERS. For each day actually and necessarily devoted to the service of the town, one dollar and fifty cents. The compensation varies in cities; in some cities the assessor receives a salary. Clerk of the polls' fees. For each day actually and necessarily devoted to the purposes of election, one dollar and fifty cents may be charged. County ckrJc's fees. For searching the records of his ofilce, or the records of mortgages deposited in his oflBce by Loan Officers and Commissioners of Loans, or the dockets of judgments, for each year (5) five cents. 618 NEW clerk's assistant. Entering satisfaction of a judgment when actually done (12^) twelve and one half cents. Administering an oath or afBrmation in cases where no fee is spe- cially provided, together with the certificate, (12s) twelve and one half cents. Cleric of the court of oyer and terminer and grand sessions. The same fees may be charged as are allowed in civil cases for copies of papers filed in his office, for all copies of records, indictments and other proceedings. Swearing a witness (6) six cents. Entering orrespitinga recognizance (I25) twelve and one half cents. Calling and swearing a j ury (19) nineteen cents. Entering a sentence in the minutes kept by him, (12^) twelve and one half cents ; and the like fee for every certified copy thereof, and for a transcript thereof for the Secretary of State. Glerh of the hoard of registry. For each day actually and necessarily devoted to the duties of elec- tion ($1.50) one dollar and fifty cents shall be charged. Commissioners of excise. For each days service actually performed ($3.00) three dollars. Commissioners of highwawys. In any town where there is but one such officer, the sum of $2.00 per day for each day actually and necessarily spent in the discharge of his official duties. In towns where there are more than one, $1.50 for each day as above. Commissioners to loan U. S. deposit fund. In the case of the sale of any lands the commissioners may charge for their services in preparing the notices of such sale, and in super- intending the same ($5.00) five dollars. Constables fees, (laws of 1869, chap. 820.) Constables shall hereafter be allowed for services rendered in civil actions the following fees : For serving a warrant or summons 25 cts. For a copy of summons on request of defendant, or left at de- fendant's dwelling in his absence 15 For serving an attachment 75 For copy of the attcahment, and inventory of the property seized, left at the last residence of the defendant 75 For serving an execution, for every dollar collected to the amount of fifty dollars 5 cts. For every dollar collected over fifty dollars 2j cts. For every mile trarelei,- (going and returning^ to serve a summons, warrant, attachment or execution ; the distance APPEIfDIX. 619- to be computed from the place of the abode of the defend- ant, or where he shall be found, to the place where the precept is returnable 10 cts. For notifying the plaintiff of the service of a warrant 25 cts. For going to plaintiff's residence, or where he shall be found, to serve such notice, for each mile traveled, {going and returning) 10 cts. For subpoenaing witnesses, not exceeding four 25 cts. For summoning a jury 75 cts. For summoning a jury to assess damages in proceedings relative to highways $2 00 For serving affidavit, notice and summons, in action to secure possession of personal property 50 cts. For a copy of such affidavit, notice and summons left with defendant, his agent, or at the last place of abode of the defendant 50 cts. For every mile traveled, (^going and returning,) to serve such affidavit, notice and summons, the distance to be com- puted from the place where the precept is returnable, to the place of abode of the defendant, or where he shall be found, 10 cts. For taking charge of a jury during their deliberations .... 50 cts. In special proceedings. For serving a summons 25 cts. For serving a warrant 50 cts. For arresting and committing any person pursuant to process, 1 00 For every mile traveled, (_going and returning,') in each case, 10 cts. In criminal cases. For serving a warrant 75 cts. For every mile traveled, {going and retu/rning,) 10 cts. For taking defendant into custody on a mittimus 25 cts. For every mile traveled in taking the prisoner to jail, {going and returning,) 10 cts. For taking charge of a jury during their deliberations. . . 50 cts. For attending any court pursuant to a notice from the sheriff for that purpose, for each day 2 00 For each mile traveled, in going to, and returning from such court 5 cts. Which fees shall be chargeable to the county, and shall be paid by the treasurer thereof, on the production of the certificate of the clerk, specifying the number of days, and the distance traveled. To entitle any constable or other officer, to the increased or additional travel fees, provided for in this Act, such constable or officer, shall show by affidavit that such travel was necessary on the process on which it was charged ; that no more miles are charged for than was actually and in good faith traveled on the execution of such process, and that such constable or officer at that time, had no other official or private business on such traveled route, and that the charge for going and returning, was made only upon one process, which process shall be . 630 NEW cleek's assistant. attached to, or described in sucli affidavit, and such additional or in- creased travel fees shall not be allowed by any court or auditing board, unless such court or auditing board shall be satisfied, that the miles charged were actually and necessarily traveled on the pro- cess named, and on that process only. Affidavit in above case. County, ss. -, being duly sworn, «ays, that he traveled ■ miles, going and returning, to serve the within process, the distance being computed from the place of the abode of the defendant, or where he w found to the place where the said process is returnable; that such travel was necessary on such process ; that no more miles are charged for, than was actually and in good faith traveled in the execution of such process, and that the deponent at the time had no other private or official business on such traveled route, and that the charge for going and returning, was made only upon one (the within) process. Signature. Sworn to before me, this day, of 18 — . Officers signatwre. General services. For any services not provided for, that a constable may legaDy render, the same fees may be charged as are allowed by law to sheriffii; among others, as follows : Putting any person entitled, into the possession of premises, (and removing the tenant,) one dollar and twenty-five. cents. Together with the same traveling fees as upon an execution. Summoning a jury to try the title to any personal property, and attending such jury, one dollar and fifty cents. A constable is not entitled to any fees for traveling to serve a criminal warrant, unless the service is actually made, tho,ugh the party sought to be arrested could not be found. Coroner's fees. For viewing the body, the amount is to be fixed by the board of supervisors. Precept for summoning a jury 50 cts. Summoning the jury, and attending the same.., $1 50 cts. Swearing the jury 25 cts. Subpoena 25 cts. Subpoenaing each witness 25 cts. Travel fee in subpaenaing witnesses, for each mile traveled.. 10 cts. Swearing each witness 10 cts. Drawing inquisition, for each folio 25 cts. Engrossing to sign, each folio 12^ cts. Travel fees in returning inquisition to clerk's office, each mile 10 cts. Warrant for arrest of one charged with crime 25 cts. APPENDIX. 621 Examination of accused, each day il 00 Every necessary adjournment , 25 cts. Warrant of commitment 25 cts. Each recognizance of witness 25 cts, A reasonable compensation, and the actual expenses of digging up and reburying the body, on which an inquest is held. In the city and county of New York, the following fees, and none other can be charged. For viewing each body, and holding an inquest thereon. $10 00 Summoning, and swearing jury 5 00 Making and filing inquest 5 00 Inspectors of elections. For each day actually and necessarily devoted to the duties of the office, §1.50, may be charged. Jurors' fees. In civil cases injustice's courts. For attending to serve as a juror though not sworn 10 cts. For attending and trying a cause 25 cts. Justices' of the peace. — In dvil cases. For a summons 25 cts. For a warrant, attachment or transcript of judgment, each. 25 cts. For an adjournment 25 cts. For subpoena, including all the names inserted therein. ... 25 cts. For administering an oath 10 cts. For filing each paper necessary to be filed 5 cts. For swearing a jury 25 cts. For swearing a constable to attend a jury 10 cts. For trial of an issue of fact, in case of no appearance of the defendant 25 cts. In case of appearance and answer 75 cts. For entering judgment 25 cts. For taking afSdavit 10 cts. For drawing any bond 25 3ts. For receiving and entering verdict of jury 25 cts. For venire 25 cts. For drawing affidavits, applications and notices in cases required by law, per folio 5 cts. For execution 25 cts. For making return to an appeal $2 00 For warrant for the apprehension of any person charged with any violation of the laws concerning the internal police of the State 25 cts. For warrant for the apprehension of any person charged with being the father of a bastard 50 cts. For endorsing any warrant, issued from another county.. 25 cts. For summons for any offence relating to the internal police 633 STEW CLBEK'S ASSISTANT. of the state, or in any case of any special proceeding to recover the possession of lands or otherwise, , 35 cts. For drawing a record or conviction for contempt, or other special cases 50 cts. For an execution upon any such conviction 25 cts. For warrant of commitment for any cause 25 cts. For a precept to summon a jury in special cases 50 cts. For swearing such jury 25 cts. For hearing the matter concerning which such jury is sum- moned 50 cts. For receiving and entering the verdict of such jury 25 cts. For a view of premises alleged to be deserted 50 cts. For hearing an application for a commission to examine wit- nesses : 50 cts. For every order for such commission, and attending, settling and certifying interrogatories 50 cts. For taking deposition of witnesses upon an order or commis- sion issued by some court in this or a foreign state or terri- tory, per folio 10 cts. For making the necessary return, and certificates thereto. . 50 cts. For endorsement on afBdavit in an action to recover posses- sion of personal property 25 cts. In criminal cases. For administering an oath 10 cts. For a warrant, (but no justice of the peace shall be obliged to issue a warrant on any complaint for assault and battery, unless the person making such complaint shall pay the fee therefor,") 25 cts. For a bond, or recognizance 25 cts. For a subpoena, including all the names incerted therein, 25 cts. For a commitment for want of bail 25 cts. For an examination of the accused, when such examina- tion is required by law, for each day necessarily spent, $1 00 For every necessary adjournment of the hearing or ex- amination ^ 25 cts. Overseers of the poor. For each day actually and necessarily devoted to the duties of the ofBce, $1.50 may be charged. Printer^ fees. Not more than seventy-flve cents per folio for the first insertion, and thirty cents for each subsequent insertion after the first, except for proceedings in surrogates' courts, or any notices required to be published relating to the estates of deceased persons ; and in such cases not more than fifty cents per folio for the first insertion, and twenty-five cents per folio for each subsequent insertion after the first. APPENDIX. 633 Sheriffs' fees. For conreying a single convict to the state prison, for each mile from the county prison from which such convict shall be conveyed 35 cts. For two convicts 45 cts. " three " 50 cts. " four " 55 cts. " five " 60 cts. For all additional convicts, such reasonable allowance as the comp- troller may think just, which said allowance, together with $1.00 per day for the maintenance of each convict whilst on the route to such state prison, (not however exceeding $1.00 for every thirty miles travel, J shall be in full of all charges and expenses in the premises. For serving any process by which an action shall be com- menced in a court of law, when there shall have been no process previous thereto, on each defendant 50 cts. In the city and county of New York, all sales of real estate under the decree or judgment of any court of record (except sales in cases of partition, and where the sheriff of such county is a party) shall be made by the sheriff of such city and county ; and in cases of fore- closure he shall be entitled to receive : For receiving order of sale and posting notices of such sale $10 00 Attending' sale ^ 10 00 Drawing deed 5 00 Attendmg an adjourning sale at request of plaintiff, or order of the court 3 00 But no more than three such adjournments shall be charged. Making report of sale 5 00 Paying over surplus moneys 3 00 For serving a, writ of possession or restitution; putting any person entitled into possession of premises, and removing the tenant 1 25 Traveling fees, going only, each mile 06 cts. Returning the writ 12s cts. Fees on attachments against ships 1 00 Serving warrant 1 00 Returning same 1 00 Bringing up prisoner on habeas corpus, to testify or answer in any court 1 50 Traveling each mile from the jail 121 cts. Attending such court with such prisoner, per day, be- sides actual necessary expenses 1 00 Making return to the writ 124 cts. Copy of process to annex to return, for each folio. . . . 12j cts. Return to writ of certioiari 12i cts. Copy of proaess to annex to return, for each folio... . . 12.j cts. Service of attachment against defaulting witness ; the usual allowance is 50 cts. For the return 12^ cts. 624 NEW glebe's assistant. Travel fees from the place of arrest to the court where the writ is returnable, for each mile 12s cts. Supervisors' fees. One dollar and fifty cents per day (except when attending the board of supervisors) for each day actually und necessarily devoted by them to the services of the town, in the duties of their respective offlces. The supervisors of Albany and Rensselaer counties are al- lowed 81-00 besides their travel fees, and no more. Witnesses' fees. For attending before a justice of the peace in a justices' court, or a commission appointed by a justice of the peace, or before a justice of the peace taking depositions to be used in courts in other states, twenty-five cents for each days actual attendance. GUARANTIES. 1. That a note will he paid. For value received, the receipt whereof is hereby acknowledged, I hereby guaranty the payment of the above note. This day of , 18 — . Signature. 2. That a bond mil he paid. In consideration of the sum of one dollar to me in hand paid the receipt whereof is hereby acknowledged, I hereby guaranty the payment of the above [or annexed] bond [or other instrument.] Signature with or without a seal. This day of 18—. Wibness. 3. Of eollectihilitj/. . For value received, the receipt whereof is hereby acknowledged, I hereby guaranty that the above [or annexed] [here set out the name of the instrument] is good, [or is collectible.] Signature. This day of 18—. 4. Of rent In consideration of the letting of the above described premises, and for value received the receipt whereof is hereby acknowledged, I guaranty the punctual payment of the rent, and the performance of the covenants in the above agreement mentioned to be paid and per- formed by said lessee. This, without requiring any notice of non- payment, or non-performance, or proof of notice or demand being made, whereby to charge me therefore. This day of 18—. Witness. APPENDIX. 625 5. In consideration that legal proceedings shall be estopped. , having at my request, agreed to discontinue the pro- ceedings instituted by them against , of , to en- force payment of ■. dollars, due by him to them. I hereby in consideration thereof, guaranty the payment of that sum together with lawful interest and costs to date, within days from date. Signature. This day of , 18—. Witness. 6. That a contract will be performed. In consideration of the sum of one dollar to me in hand paid, the receipt whereof is hereby acknowledged, I hereby guaranty, and by these presents do promise and agree, to and with them, that the above named party of the part in the above contract, will well and truly, and faithfully on his part perform and fulfill every thing uy the foregoing agreement on his part and behalf to be performed and fultilled,at the times and in the manner above provided. And I do hereby expressly waive and dispense with any demand upon the said , and any notice of any non-performance on his part. This day of , 18 — . Signature. Witness. 7. General letter of guaranty . I hereby guaranty to any person advancing money or selling goods on credit to of , not exceeding the sum of dollars ; the payment thereof, at the expiration of the credit given, always provided the said does not pay on demand. This day of 18 — . Signature. Witness. To Messrs. Residence. 8. Special letter of Quarant/g. To Messrs. , of . Dear Sir : I will be responsible for the goods sold [if desired, here limit the quality and hind,'] [or money to be lent] by you to , of , to an amount not exceeding in the aggregate the sum of dollars, [or where it is desired to give a continuing guaranty sayl not exceeding an indebtedness of dollars at any one time. This day of 18—. Witness. PAY AND BOUNTY. The arrears of pay to which a deceased officer or soldier is entitled is payable to the following persons in the order named : 40 626 NEW clekk's assistant. Where the deceased was married, payment will be made, 1st. to the widow ; 2d. she being dead, to his child or children. If minors, the payment will be made to a guardian duly appointed. Where the deceased was unmarried, 1st. to the father ; 2d. he be- ing dead, to the mother; 3d. they both being dead, to the brothers and sisters collectively ; and lastly, to«the heirs in general. The bounty of ^100 is payable to the following persons, in the fol- lowing order, and to no other persons : 1st. to the widow ; she being dead, to the children, share and share alike. There being no wife or children, such bounty shall bo paid to the following persons, provided they are residents of the United States : 1st. to the father, provided that he has not abandoned the support of his family ; 2d. to the mother; 3d. to the brothers and sisters collectively. Widows of commissioned officers, of three months volunteers, and of soldiers dying after being discharged, are not entitled to bounty. No money will in any case be paid to the heirs of a deceased soldier or sailor, against whom it is proven, that they have in any manner aided or abetted the late rebellion. A soldier is not entitled to the- bounty of $100 unless he has served for a period of two years, or during the war if sooner ended, unless he has been discharged by reason of wounds received in battle. The proper officers before whom the application and deposition re- quired should be sworn to, are a judge, a commissioner, a notary pub- lic, or a justice of the peace, duly authorized to administer oaths ; the oath must be accompanied with the certificate and seal of a court of record, certifying to the fact that the said judge, commissioner, &c., was duly commissioned, and was acting in his official capacity at the time of the execution of the papers. Payment will be made by an order from the accounting officers on any paymaster of the army. Such order will require the signature of the claimant on its face, and duly witnessed. All claims for arrears of pay and bounty may be sent directly to the office of the Second Auditor of the Treasury Department, Wash- ington, D. C. No claim will be rejected-on account of the form in which it is pre- sented, if it substantially complies with the instructions, which will be furnished by the above officer. All letters of inquiry in relation to a claim should specify the name of the deceased, and the company, regiment, and State to which he belonged ; and in all cases, in order to secure an answer, the name, post-office, and State of the writer should be distinctly written. The government pays all postages on such business communica- tions, whether received or transmitted by the Second Auditor. If the declarant, or any witness, signs by mark, the officer must certify that the contents of the paper were made known to the affiant before signing. In every case the declaration or affidavit must either be signed by the affiant's own hand, or else by mark (X) ; this mark must be witnessed. Signing by another's hand, when the party is unable to write, is wholly inadmissible. The allegations made in the applicant's declaration must be sus- tained by the testimony of two credible and disinterested witnesses, * APPENDIX. 637 to be certified as such by the officer before whom the testimony is taken. The applicant must also take and subscribe the oath pre- scribed in the recent amnesty proclamation of the president of the United States, filing such oath with the application for a new pension certificate, in the following fornr : Oath. I, [here insert the name of the party taking the oath'\, do solemnly swear [or Oiffirni] in the presence of Almighty God, that I will hence- forth faithfully support, protect, and defend the Constitution of the United States, and the union of the States thereunder.; that I will in like manner abide by and faithfully support all laws and proclama- tions which have been made during the existing rebellion with refer- ence to the emancipation of slaves, so help me God. Signature of party taking the oath. In cases where the applicant is an invalid pensioner, he must be ex- amined by an army surgeon, or by a surgeon duly appointed by this office (the pension office), as to the continuance of his disability. If a widow, she must prove, by two credible witnesses, her continued widowhood. In the case of the guardian of a minor child, newly ap- pointed, he must file evidences of his appointment as such. With each and every application fo*pay and bounty due a colored soldier, the attorney presenting the same must file his oath [or affir- ■mationj that he has no interest whatever in said pay or bounty, be-" yond the fees for the collection for the same as fixed and established by law. The failure to file such oath or aflrmation will in every case result in the suspension of the application. When application is made by heirs of deceased soldiers for the ad- ditional bounty, they should so state the fact in the application, and if possible, give the number of the certificate issued in any previous settlement made by the Second Auditor. Parents must apply jointly. AIL declarations of claimants, residing within twenty-five miles of any court of record, must without exception, be made before such court, or before some officer thereof having custody of its seal. ' For the convenience of persons residing more than twenty-five miles dis- tant from any court of record, officers qualified by law to administer oaths may be designated by the Commissioner of Pensions, before whom such declarations shall be executed. Claim agents are pro- hibited, under severe penalty, from receiving more than $10 (ten dol- lars') in all for their services in prosecuting any pension claim, or from receiving any part of such fee in advance, or any per centage of any claim, or of any portion thereof, for pension or bounty. In all cases where a mark is substituted for a written signature, two disinterested witnesses are required. 1. Form of declaration for an invalid pension. State (District oe Tbebitort) op > ^^ County of 5 On this day of , A. D. 18 — , personally appeared before me [here set out the name and official character of the person ad- 638 NEW clerk's assistant. minstering the oafK] within and for the county, state aforesaid, [here set out the name of the a/pplicamt] aged , a resident of , in the state of , who, heing duly sworn according to law, declares that he is the identical who enlisted in the service of the United States at , on the day of -« — , in the year , as a . in company , commanded by , in the regiment of , in the war of 1861, and was honorably discharged on the day of , in the year 18 — ; that while in the service aforesaid, and in the line of his duty, he received the following wound [or other dis- ability, as the case may 6e] [here set out in full, a particular and minute account of the wound or other injury, and state how, when and where it occwrred, where the applicant has resided since leaving the service, amd what has been his occupaUon.'] Signature of 'Applicant. Also personally appeared before me and , residents of [state county and dty or town'] persons Vhom I certify to be respect- able and entitled to credit, and who being by me duly sworn, say that they were nresent and saw sign his name [or make his mark] to the foregoing declaration ; and they further swear that they have every reason to believe, from the appearance of the applicant and their acquaintance with him, that h^is the identical person he represents himself to be, and they further state that they have no interest in the prosecution of this claim. Signature of witnesses. Sworn to and subscribed before me this day of , A- D. 18 — ; and I hereby certify that I have no interest, direct or indirect, in the prosecution of this claim. Signature and title of officer. Applicants post office address . 2. Application for an increase of pension. Instructions. — All applicationB for increase of pensions must be endorsed by tbe Pension Agent where payment has been made, and he must certify that he tnows or believes, on information from others that the surgeons are reputable m their profession. The application must be accompanied ^th the pension certiiicate when sent to the Pension Offlce- It is hereby certified, that, , formerly a of Captain Company in the regiment of , who, it appears by the ac- companying certificate, was placed on the pension roll at the rate of dollars per month, on account, as he states, of having [here state wound received, or disease contracted, for which the applicant alleges that he was pensioned] while in the line of his duty, and in the said service, on or about the day of , in the year 18 — , at a place called , in the state of , is not only stiU disabled in con- sequence of said injury, [or disease contracted] but, in our opinion, his disability to obtain his subsistence by manual labor, has increased since his last examination , so that it now amounts to [one half, two-thirds, or total, as the case may be] disability ; the said increased APPElirDIX. 639 disability, originating entirely from the injury [or disease] on account of which he was originally pensioned. Signatwre of Sitrgeon. ■ Signature of Surgeon. State of — — , \ County of . 5 **• On this day of , A. D. 18 — , personally appeared before me \here set out the name and title of the officer,] in and for the state and county aforesaid, Dr. , and Dr. , who being duly sworn according to law, say that the above document by them signed is, to the best of their knowledge and belief, just and true. Sworn to before me, this day of 18 — . [Seal.] if he have one. Signatwre and title ofoffiwr. Pension agency ,18 I hereby certify that Dr. and Dr. , whose signatures appear above, are surgeons in actual practice, and reputable in their profession, as I [Aere set out reasons for such opinion, and whether personal knowledge or otherwise'] and entitled to fuU credit and belief. Pension agent. 3. Application for a transfer. IirsTiincTioNS.— The oath to be taken 'before a duly qualified magistrate, -whose offl- cial character and signature must be certified by the proper officer, under hia seal of office. The county clerk, secretary of state, or some other officer, must certify, under his seal of office, that the officer who administered the oath is such officer as he purports to be, and that his signature is genuine. The oath must be supported by the testimony of some respectable person as to the pensioner's identity. He must swear that the person who has taken the oath is the per- son described In the affidavit. The magistrate must certify that the witness is a person of veracity; and the affidavit must also be authenticated In the manner above de- Bcribed. In every case where the clerk of the court, or other certifying officer, has no public seal of office, the certificate of a member of Congress, proving the official character and signature of the certifying officer, should he sent with the papers. Mode of authenticatiTig papers. — In every instance where the certificate of the certify- ing officer who authenticated the paper is not written on the same sheet which contains the affidavit, or other papers authenticated, the certiJicate must be attached thereto by a piece of tape or ribbon, the ends of which must pass under the seal of office of the cer- tifying officer, so as to prevent any paper from bemg improperly attached to the certifi- cate. "'> ss: State op — County pf- On this day of , A. D. 18 — , before me [here set out the name and title of the officer] in and for the said county, personally ap- peared , who on her oath declares that she is the widow of , who formerly belonged to company, commanded by Captain , in the regiment of- , commanded by Co- lonel , in the service of the United States ; that her name was placed on the pension roll of the State of ,. whence she has lately removed ; that she now resides in the of , city of , where she intends to remain, and wishes her pension to be there pay- 630 NEW clbbk's assistant. able, in future. The following are her reasons for removing from to : [here set out the reasons.'] Sworn and subscribed to before me the day and year aforesaid. [Seal.] Signature and title of officer. Where the transfer is applied for by a man, the change in the above form will be readily made. ■ 4. Application for a new certificate. ^ State op , > County of—. 5 **'* On this day of , 18 — , before the subscriber [here set out the name and title of the officer] in and for said county, personally ap- peared , who on his oath declares that he is the same per- son who formerly belonged to company, commanded by Captain , in the regiment, commanded by Colonel , in the service of the United States ; that his name was placed on the pension roll of the State of , that he received a certificate of that fact under the signature and seal of the secretary of ; which cer- tificate, on or about the day of , 18 — , at or near , was \here set out at length, the facts and drcumstanees attending the loss of the certificate.] Sworn to before me the day and year aforesaid. [Seal.] • Signature cmd title of officer. State of , ? . County of . ) **' On this day of , 18 — , before the subscriber [here set out the name and title of the officer,] in and for said county, pei;sonally appeared , who on his oath declares that he well knows , who has executed the foregoing affidavit, to be the identi- cal pensioner named therein. Sworn to, Sc., as above. 5. Applicationfor widovfs pension. State op , ) . County of . 5**- On this day of , 18 — , personally appeared before me the subscriber [here set out the name and title of the officer, who must he authorized to administer an oath], in and for the county and State aforesaid, , of , who being duly sworn, declares that her age is years, that she is the widow of , late of the county , and state of , who was a , in company , commanded by Captain , in the regiment of [here state whether of a State, or County of . S On this day of , 18 — , personally appeared before me, [here set out the name ami title of the officer,'] in and for the county and State aforesaid, aged years, a resident of , -vrho being duly sworn according to law, declares that he is the identical ' , who was a in company [where the person was an officer, vary the form accordingly,] commanded by Captain , in the regiment of , commanded by Colonel : in the war with Great Britain, declared by the United States on the 18th day of June, 1812, [or other war describing it] that he enlist- ed, [or was drafted] at , on or about the day of , 18 — , for the term of years, and continued in actual service in said war for the term of , and t^ honorably discharged at on the day of , A. D. 18 — . [Where the claimant was dis- charged in consequence of disability incurred by the service in the line of his duty ; or, if he was in captivity with the enemy, he must vary his declaration so that the facts in the case may be set forth. He makes this declaration for the purpose of obtaining the bounty land to which he may be entitled under the act approved . He also declares that he has not received a warrant for bounty land un- der this, or any other act of Congress, nor made any other applica- tion therefor. Signatv/re of the claimant. "We, and , residents of , in the State of , upon our oaths, declare that the foregoing declaration was signed and acknowledged by in our presence, and that we believe from the appearance and statements of the applicant that he is the identical person he represents himself to be. Signature of ieitnesses. The foregoing declaration and affidavit were subscribed and sworn to; before me on the day and year above written ; and certify that I know the afSants to be credible persons ; that the claimant is the person he represents himself to be, and that I have no interest in this claim. [Seal.] if he have one. Signature and title of officer. 12. Claim for compensation for property taken by United States forces. State op -, ? . County of . 5 **• I, [here state name of claimant,] on oath, state that I am a citizen of the county and State aforesaid; that I was, at the date the claim here- inafter set forth originated, and have been ever since, Idyal to the United States ; that on or about the [here set out the date the stores APPENDIX. 635 or property was taken'], at or near the town of [here follows the place of taking. State and county being mentioned] the following articles : [If the articles taken pertained to the quartermaster's depart- ment, say "quartermaster's stores;" if to tlie commissary department, say "commissary supplies." Quartermaster's stores and commissary supplies must not he put in the same claim.] "Were taken from me by [name and rank, with company and regiment if possible, by whom the property was taken] to wit : [here set out at length a full descrip- tion of the articles, as to quality, quantity, kind and value.] That [if no receipt or voucher was given, say for which no receipt or voucher was given, in case one was received, say for which the voucher attached was given, in such a case it must be forwarded with the claim] for said property. That said property was actually taken by said officer for the use of, and used by the army of the United States ; that no payment has been made, or .'compensation received in any way, or from any source whatever, for the whole, or any part of said claim ; that it has not been transferred to any person or persons whomsoever ; and that the rates or prices charged are reasonable and just, and do not exceed the market rate or price of the articles at the time and place stated. And I do hereby appoint as my attorney to prose- cute this claim for me, with full power of substitution and revocation, and to receive ^nd receipt for the money or certificate issued in pay- ment thereof. The claimant's post office address is . 50c. Int. rev. stamp, * Signatu/re and title of officer. State op -. , ) County of . 5 **•* This day personally appeared before the undersigned [name and title of officer] in and for the county and State aforesaid, — , who subscribed and made oath to the foregoing affidavit, this day of , 18 — . 5o. Int. rev. stamp. Signature of claimant. Oath of allegiance. I [name of claimant] do solemnly swear [or affirm] that I will support, protect, and defend the constitution and government of the United States, and the union of States thereunder, against all enemies, whether domestic or foreign; that I will bear true faith, allegiance, and loyalty to said constitution and government; that I will faithfully support and abide by all acts of Congress passed, and all proclama- tions of the President made dnring the rebellion with reference to slaves, so long and so far as not modified or held void by Congress or by decision of the Supreme Court of the United States ; that I will faithfully perform all the duties which may be required of me by law ; and further that I do this with a full determination, pledge and promise, without any mental reservation or secret evasion of purpose whatever. So help me God. Signature of claimant. 636 KEW pleek's assistant. State of , ) County of . y^ ' We [here must follow the names of two witnesses, with their residence. State, county, city or town'] who being duly sworn according to law, state, that on or about the day of , 18 — : [time when the property was taJeen] at or near [place where property was taken.} Quartermaster's stores, [or Comissary supplies described and charged for in the foregoing claim of , consisting of the following ar- ticles, to wit : [here enumerate] actually taken by , for the use of the army of the United States, which stores were used by the said army ; that the quantity charged for is correct, and that the prices charged are reasonable and just, and do not exceed the market rate or price of the articles at the time and place stated. Signatures of the witnesses. Subscribed and sworn to before me, by , and , this day of , 18 — . Signature and title of officer. 5c. Int. Bev. stamp. State of County of . I CBRTiFT that [Jiere set out the name and title of tHe officer 'before whom the application was sworn,'] is duly authorized to administer oaths and that I am well acquainted with his signature and that the above which purports to be such" is his, and I further certify that the claimant , is a citizen of county in the State of . In witness whereof I have hereunto set my hand, and official seal, this day of , 18—. [Seal.] Signature of the clerk of the court. 5e. Int. Bev. stamp. This certificate can only he made ty a United States officer, civil or military. I , do certify that I am [here set out rank or Utle] that I am well acquainted with [name of claimant] the claimant in the case, and know that he was at the date the claim originated, and has been ever since loyal to the United states, and that he is of good reputation for veracity, and is entitled to be believed. And I do further certify that I am well acquainted with , and , the wit- nesses who subscribed the foregoing affidavit, and that they are also of good reputation for veracity and entitled to be believed. Signature and rank or title of officer. This certificate should be obtained, if possible; it is not however in- dispensable. to 562. APPENDIX. 637 RECOGNIZANCES. 1. Short form of memorandum. -, bound in dollars. -, bound in dollars. On condition that , be and appear at the next court in , to answer. This day of , 18—. 2. Formal recognizemce. State op , ) County of . 5** = Be it rbmembbrbd, that I , of the of , in said county, acknowledge myself to be indebted to the people of the State of , in the sum of dollars, to be well and truly paid, if de- fault shall be made in the condition following. Whereas the said , [here set out the circumstances avr thoriemg the exaction of the instrument,'] Now, therefore, the con- dition of this recognizance is this, that if the said , shall [here set out at length what is to be performed by the person liable.] Then this recognizance shall be void ; else to remain of full force. Signature and seal. Subscribed and acknowledged in open court this day of , 18 — , before me. Signatwre and title of magistrate or clerk of cov/rt. SUBSCRIPTION PAPERS. 1. For a Church, (the same may be modified for any other structure.') Be it known. That we, the undersigned subscribers to this instru- ment, hereby agree to pay the sums set opposite to our respective names by us (in lawful money of the United States), for the purpose of erecting [here set out mth care the building that it is proposed to erect, and the place of its erection]. The amount to be subscribed in cash is 8 — — ; the money is to be paid to [here set out the names of the persons who are to receive it], [Here make any statement as to how the building is to be erected arid finished, and the purpose for which it is to be used]. Signatures and amount subscribed. Bate of each signatu/re. 2. For the support of a Clergyman, [the same may be modified to suit other facts] . Be it known. That we, the undersigned subscribers to this instru- ment, being members of the religious society in the of , State of , and being desirous of raising a salary for the support of the Rev. , (2>. B.) as a minister of the gospel in said so- 638 NEW cleek's assistant. oiety, do, for this purpose and for the consideration of one dollar, the receipt whereof is hereby acknowledged, received of the trustees of said society, before signing this instrument, promise, covenant, and engage, each one for himself [and herself], individually and sev- erally, to and with the said trustees, and to and with each other, that we will each pay to the said trustees, or to such person as they shall appoint to receive the same, the sums of money respectively annexed to and set opposite to our iiames in this instrument, to be paid annu- ally on or before the day of , in each and every year, in lawful money of the United States, so long as the said Eev. , (Z). 2).) shall administer the gospel in said society, and so long as we, the subscribers, shall reside within four miles of the meeting-house used and occupied by said society ; these subscriptions are to be by the said trustees applied for the sole purpose of paying the salary of the Rev. , (D. D.) The first annual payment shall be made at the expiration of one year, after he shall be installed or ordained in and over the said society, and in each and every year thereafter. It is further distinctly understood, that the said Rev. , (D.Z).) shall be allowed in each and every year that he shall admin- ister the gospel in said society, to be and remain away and absent from his duties as such minister for and during Sabbaths ; and this fact shall furnish no excuse for withholding the above mentioned subscriptions. It is further distinctly understood, that this instrument shall not be obligatory upon us in any manner, until the whole sum subscribed shall amount to the sum of dollars. It is further distinctly understood, that any one of us may cease paying the sum subscribed by us, by giving notice of our intention one year in advance to the said trustees. Signatures, and amounts subscribed. Date of each signature. TITLE, ABSTRACT OF. This is an instrument, presenting in a clear, simple, and connected form, the history and substance of the various instruments which in any way affect the title to real property. A very complete form will be found in 3 Abb. Forms, 5 ; see also, 1 Preston on Abst. 36 ; Gar- win's Manual. It is advisable to commence back at least sixty years from the date of the abstract. See also, Willard on Real Estate, 551. INDEX. ABSTRACr- of claims audited by town auditon. ACCOUNTS— see " TOWN AUDITORS." ACKNOWLEDGMENT AND PROOF OP DEEDS, &C— practical remarks, .« — .«■ Ml by a single party, known to the officer, — 19 by asingle party, proven to the officer, - B by husband and wife, different forma, 12^ 18 by two husbands and their wives........... .-...— ,... 13 by wife in a separate certificate......... ............ ... • 13 by several parties, ....... ................. ....... 14 ty one of several parties,....._..... ................ ...._._ M by an attorney, different forms, H, 16 by an executor, or trustee, . .... .... ... IB Vy a sheriff, 15 by a deputy sheriff, . — 16 by a party to confirm deed executed during mtancy,....-^ 16 by subscribing witness, ......... 16, 17 by subscribing wimess as to the husband, ana acknowledgment by the wife,.. - .... 17 by subscribing witness to deed executed by an attorney,. ...... IS 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 acknowledgment in Michigan, . . ............ SO acknowledgment in Ohio, .............. ........ 21 acknowledgment in Illinois, ............... 21 acknowledgment in Indiana, .,... .............. Vt acknowledgment in Alabama,.. ..^ ............ 21 satisfaction of mortgage and acknowledgment...... .... 2if S3, 34 satisfaction of judgment and acknowledgment,.... ..... 04,26 application for subpoena to compel attendance of subscribing witness to a conveyance, and accompanying forms, 2&, JiS, 27 forma of oaths on taking acknowledgments, or proving deeds, Ac., 27 ackuowledgment of pension voucher. acknowledgment of notice of exemption of homestead........ W 3M 640 INDEX. ADMINISTR iTORS— P^ob . fees of, .. ......... «,. 246 deed from, 1 . 162 aatisfaction of mortgage by,.... ........................ 2S description of in suit,.... ................................ 343 ADVERTISEMENT OF SALE— on a chattel mortgage, — 120 of town Buperintendont of common schools. .................. 628 of collector of school district....... . 639 of constable, ........... .................................... 660 where stray is not rede>ime& bond to corporation, _. 124 mortgage by corporation, -— 17!) mortgage to corporation, -^ 180 proof of deed executed by,- _.— 19 jatisfaciion 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 BEOGARS- 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 fornon-accepiance,., ... 108 protest of bill or note for non-payment, ...... 109 notice of protest, different forms, ..... 110 certificate of service, . . 110 general form of a notarial certificate, ,110 BILLS OF SALE AND CHATTEL MORTGAGES— practical remarks, . li;> 14 common bill of sale, . .... ..... . . 5 bill of sate, in consideration of maintenance, . .... 116 blH of sale of a registered or inrolled vessel, llG chattel mortgage to secure a debt, different forms, 117, US, 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 agreemen'.of tenant and ptedgs of property, 386 lease and' chattle mortgage, &H9 Me"FBEs OF Officers." 644 INDEX. BONDS- BBID6E- flax. pTactical reffiarks, ..„..—.„-.-_.- ,._. 121, 122 aasigfuucnt of,_..._. ,-.,._..—„„__—_„. ,,_„...._, 77 eommoa bund, _-...-..„...-......_... .__-—-_„.-„„.. 123 bond of two obligora,. -,_..__„.„_._.._..___-.„.. .„._„.„ 123 . boad— several paymente, .-.—„„ ....... • 123 bond, with interest condition^ . .... . . 134 bond to a corporation......... .....___................ ....... VM bond to executors,.-...— .._..............-_..........._..._. i24 legatee's bond, .... . .. .—.................._..... 125 the same before suit, ............._...._. 120 indemnity bond to sheriff, . 126 bond and warrant of attorney to conless judgment, 127 bond to execute a conveyance,.. ............ . 127 bond to discharge a bond and mortgage, ......^ . 123 bond of an officer of a bank, or company, . , . 123 -bond of indemnity, to a surety, ....... 129 the same on paying lost note, 12f bond for performance of a contract or agreement, 130 bottomry bond, ^ 130 bond of sheritf and his sureties, ................_..._..._.... 430 bond of deputy sheriff, i 430 constable's bond, _. ...................... 430 bond of commissioner of highways, .... 284 town superintendent's bond.................................. 521 bond of collector of school district, .................... ... 533 bond on obtaining license, . 233 23'!, 235 bond of town collector, . . 578,679 arbitration bond, . 67 auctioneer's bond, ................—..-.......... — .. 89 county superintendent'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 security on obtaining warrant, or short summons, in justices' courts, 344 bond on obtaining an attachment in justices' courts,.... — ... 346 bond on adjournment i& justices' courts, different forms, 343 recognizance, 379 seourity 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, .................. 657 bond by claimantof property attached, ........ . . B53 bond of indemnity to constable,...........................— 669 eubscription to raise money to build, ................«...—• 43 i " HlOHWAYB." INDEX. 645 BROKERS' tAOH. fees of, •........„.......»—»..»..... 238 liATTLE DISTRAINED DOING DAMAGE— see "Fencb Vibwkrs." CERTIFICATE— of the salo of real estate on execution, .....,.....«..m-»«> 167 CHATTEL MORTGAGE— see " Bills of Salb, bto." CHURCHES— subscription to build, . . . ............ .... 42 certificate of incorporation, - .....A.. 38, 99 triennial report of religious corporation, ..... ... 100 application to mortgage or sell real estate, ... . . 101 order of courton the application, .............. • lOJ see "Banks and Corporations." CLERKS AND CRIERS— practical remarks,.... .. .-...-._-.-... 132, 133 proclamations of crier......... - -— 133, 134, 135 forms of oaths, administered by clerk, 135,136, 137, 138, 139 forms in cases of felony,.....,. .__......._„. ........... 139 forms on a trial for a misdemeanor, ............... 140 clerk's address on taking recognizances, . 140, I4t calling constables, . .... 141 clerk's entry on issuing an attachment against a witness,.^.... 141 arraignment on an indictment,. . 142 forms for taking verdicts, and polling juries, In criminal trials, 142, 143 forms for taking verdicts, and polling juries, in civil cases,... 143. 144, 145 entry of verdict, . . 143 entry of verdict with assessment of personal properly......... 143 entry of judgment, . . .... 143 entry of judgment on submission, ....... 145 certificate of money paid into court by sherifT, ... 145 confession of judgment without action, ...................... 145 affidavit verifying confession, - 146 confession to secure against contingent liability, . . 146 entry of judgment on confession,. 146 certificate of filing notice of Lis Pendens, ...... 146 certificate to acknowledgment, or proof, of a conveyance, A7- certificate of official character, . ..... 147 transcript of judgment and certificate, . .... 147 ceiitficat« to copy of a record, or paper on file, - 148 certificate to transcript of justice's judgment, 148 see " Dbbtor and Crbditob," " Fees op Oppicbrb," " Fbrribb," *'Mbchanic8' and Laborbrs' Libn," "Naturalization," " Official Oath and Bond," and Scboolb." CLERKS OF SCHOOL DISTRICTS- sce ** Schools." CLERK OF SUPERVISORS- fees of, MO COLLECTORS OF SCHOOL DISTRICTS- fees of, - 251 bond of,_, 538 notice 'hat he will receive taxes, . .. 639 notice of levy and sale, . BW 646 INDEX. COLLECTORS OP TOWN&- fees of, -_.-. - -———.....„.„ notice of supervisor to, . ... --.........,.«, bond of coltector, ., .-...«......„, notice that taxes will be received,....,.......,..........,,,.. see " Taxbb." COMMISSIONERS OF DEEDS— fees of, ,.„.-"-•...•,«,,«■,«,■«,_ see "ACKNOWLBDaMEHTB, BTO." COMMISSIONERS OF EXCISE— fees of,_„_ __.._........,.._......,..............., ......... see "Excise." COMMISSIONERS OF HIGHWAYS— oath of oihce, .. . fees of, . ... . fees as fence viewers, . bond of, , . appointment to fiU vacancy, duties of as fence viewers, and forme,... ....... , see " Highways," and " Strays." COMMISSIONERS OF LOANS— fees of, J—,.... . ..... .,,„.,„M,,,_.„„„, COMMISSIONERS IN PARTITION— fees of, , .,...,„..., ........ deed by, .,., . ......... . COMMISSIONERS TO ADMEASURE DOWER— fees of, . ....,„. . see "Dower." COMMON SCHOOLS— see " Schools." COMPLAINT— see "Afprentioes AND Servants," "HiaawATS," "JusTioaa* Courts," and "Poor Laws." COMPOSITION— with creditors, .„.._., ,...,.»....,,,.,,,..., ..... . see "Debtor and Creditor." GONSTABLES- , official bond, . .1,, ..... .. .. . fees of, ..._. . duties of in tlie 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, ... Me " Justices' Courts," " Landlord and Tenant," Poob Laws," and "Sbrvioe and Return of Process.'- wxam 2!i8 S7S 678, 679 sap »i 241 430 241 281 260-266 242 241 164 207 430 S63-555 555,556 556 556,557 657 557 558 558 559 560 660,561 INDEX. 647 CONVEYANCES BY DEED AND MORTGAGE- "fcoa. practical remarks, 149-lM fiimple deed, - «. 155 quit claim deed, difTerent forms, i66, 16fi warranty deed, diflerent forma, - i66, 157 full covenant deed, diflbrent forma, 157, 158 deed of land subject to mortgage, .._........ . 159 corporation deed, . . ... 159 deed of mortgaged premises, on foreclosure by advertieement,. 160 deed by guardian, - 161 administrator's deed, . .... .....««it .. 162 executor's deed, — 163 deed of commissioners in partition, ..... ... 164 deed with trust habendum clause,.... 165 deed by trustees of an absconding debtor, ...... ........ 166 sheriff's certifi''.ate of the sale of real estate on execution, 167 affidavit of redeeming creditor, 167 sherifT's deed on sale under execution, .. 168 sheriff's deed in partition, .. . 169 sherifi''8 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 conw pany, 467 deed of a water course, . , 171 deed of confirmation, different forms, . 17^173 lease and release, , 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 covenantto pay,.. - .... . 176 with fire clause, . .. 176 with interest clause, .. .. ._ 177 by husband and wife, ......... 173 by corporation, ....... XT') to corporation, . ...... 180 as security on note,.... . ........ 160 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, . . 185 affidavit of serving notice on parties interested, 186 affidavit of auctioneer, . . 186 notice to accompany copy of notice of sale, l^* see "ACKNOWLEDOMENTSjETO.,** "AofllONMBNTB,'* "COTSMAHTB," " HouBsTBAD Exemption Law," " Landloud and Tbnaut/' and Receipt and Rbleask." OORPORATIONS- pee " Banks and Cokporations." 648 INDEX. CORONERS- PAt^ff. practical remuks, 18s, i89 fees of, ._ 2A3 oaths to be administered by a coroner, 190 inquisition, different forms, 190,191,192,193,194, 195 warrant to be issued bya coroner, 196 examinations before coroner, or coroner and jury, - .___ 196, 197 annual statement to board of supervisors,.... .—. ...._... 197 COUNTY CLERKS- fees of, —-.—_-_-_.—__._..-._-.,_... .-.-».___-.. 238 see "Clerks and Criers,'.' "Dedtob and Creditor," "Fer- ries," Mechanics' and Laborers' Lien," "Naturaliza- tion," " Oppicial Oath and Bond," and "Schools." COUNTY JUDGE— fees of, 2M see "Acknowledgments, etc.," "Debtor and Creditor," " Dower," " Highways," " Landlord anp Tenant," "Luka- Tics," and Plank Roads." COUNTY SUPERINTENDENTS OF THE POOR— fees of, ..... 2tf official bond, 473 see "Apprentices and Sbbvants," " Poor Laws," and "Towh Auditors." COCNTY TREASURER— fees of, ...... --.-.. -. 245 warrant under act ol 1S46, 6^ COVENANTS— practical remarks, . .... 198, 199 general forms of coTenants,_..._..^........_-.. __........._.. 199, 200 covenant of seizin, diflerent 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 see " Clerks and Cribrb." DSBTOR AND CREDITOR— practical remarks, ........ ............ ». 203-206 letter of license to a debtor, ... ..-.. ........... 206 composition with creditors, .-— -. 207 petition of msolvent and his creditors imder two-vhird act, and accompanying forms, . 208, ^KJ order for creditors to show cause, ..— . — ..... 211 notice to be published, „ — _.........................-—.-— 211 notice to be served,.-.-.-...— -———.-.——— ——-——-— 212 proof of service, .._.——.......—.—......—...—.— 212 order for assignment, . -.- — -— — 212 assignment and acknowledgment, — — 213 oath of assignee, and notice, _. — - .— .- 214 certificate of assignee, and affidavit of executi'Ti, - 214, 2if certificate of county clerk that assignment has been recorded,. 216 INDEX. 649 DEBTOR AND CREDITOR— f age. dischargcof insolvent, __. .._.......... 215 petiiion unde ; non-imprisonment act, afler suit commenced, and accompanying forms, . 210, 217, 21S order for assignment, - 21S assignment and certificate, 218,219 discharge, 219 affidavit on application for appointment of iruatees of the estate of a debtor confined for crime, ..--- 220 appointment of trustees and oath, 220, 221 see "Receipt and Relbase." DEEDS- see "Agreements and Contragts," " Contbtanoss bt Dbhd AND MOBTQAGE," and " GlFTS." DISORDERLY PERSONS— see " Poor Laws." DISTRICT CLERKS— see "Schools." DISTRICT COLLECTOR— see "Collectors of School DisTRioTa." DOWER— practical remarks, 222-225 assignment of dower,^.-. ...................... ..........—.. 225 release of, . . . . 226 petition for admeasurement of,.... ...._..... ............. SS6 notice to annex to petitions, .,... . 227 notice by heirs, or ovmers, _...__.. 2? petition for admeasuremeni by heira or ownerSf .............. V27 order for admeasurement, ^. Sf27 oath of conunissioners, _ .....-..,_ .. 229 commissioner's report, ........ 22S appeal to supreme court, and bond,.... ........ ............. 229 see "Husband and Wife," and "Wills." DRUNKARDS— see " Poor Laws." DUE BILL— form of, for goods, ..... ........ — .... 108 EXCHANGE— see "Bills of Exchange," etc., and " Comtbtanobb," etc. EXCISE— ,^ practical remarks....................................... £w, 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 act of 1843, . 234 bond on obtaining above license, 234 grocer's license, -.-- 234 grocer's oond, ... .- — 296 see " Poor Laws." EXECUTION— see "Highways," Justices' Courts," "Landlord and Tbm- ant," "Mechanics' and Laborers' Lien," "Poor Laws," *'Sbrvick and Return of Process," and "Taxes." 650 INDEX. EXECUTORS- fees of, ... —.-—.-«—-.—-.„..........,...., Domination 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 liomestead from sale on execution, . .... of personal property, ..... . . . from taxes, . . waiver by tenant, . .. ZEES 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, .. ... notary's fees, overseers of the poor, ......... overseers of liighways, . pound 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............. ... Hi 590 124 163 lis i; z> 343 SIS 125,126 329-333 SM 573 387 236, '237 237 233 238 238 233 im 241 241 ^1 241 241 24; 24!^ 243 244 245 245 246 24f 246 346 247 24S 24? 250 260 250 250 250 251 251 261 254 255 257' INDEX. 651 FEES OP OFFICERS— trustees of debtors, .«-—..........„.._...... ,_.. witnesGes' fees, -———.„._„.___.......„..........„...., FENCE VIEWERS— practical remarks, , certificate 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 "Stbavs." FERRIES— practical remarks, . . . .„ application for a ferry,_. ... ....... ..... notice of the application, recognizance, . ., .. license, . . . clerk's certificate, . ......... .... FORCIBLF ENTRY AND DETAINER— see "Landlord and Tenant." FORECLOSURE OF MORTGAGE— notice of sale on chattel mortgage, advertisement of sale on Ibreclosure of mortgage on real estate, affidavit of publication, affidavit of posting, . affidavit of auctioneer, . notice to persons interested,..-..... . deed on foreclosure, . ............. . GIFTS— practical remarks, .... deed of gift of personal estate, . . the same, of real estate, . GRANTS— see " Conveyances bt Deed and Mobtsags," " Oiftb," and " Landlobd and Tenant." GUARANTY— see " Bills op Exchange and Pbouissobt Notkb." GUARDIAN— deed by, . . ... ............. HIGHWAYS— practical remafks, . .. appointment of commissioners to fill vacancy, . . commissioner's bond, .t.. 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 sura,.... ...... order dividing town into districts, . appointment of overseer to fill vacancy, 4verseer's list, ........... rA«a. 2S9 269 260-262 26.? 263 263 264 264 265 260 266 a«, 268 268 269 269 270 270 12U 184 185 185 ISf 187 160 271 272 272 Ml 274-283 283 284 241 285 2S5 286 286 266 287 28/ 053 IKDEX. OIGHWATS- lisi of non-iedideiit laiJUf ......... ...... .... aasessment of highway labor, . appeal to three judges by a non-reEident, .... notice to commissioner of appeal, -...—......_... commissioner's consent to work in another district,. -..-. overseer's warrant, .._.-._-_-_...__.._... ...... new aBBesBmeni 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, uid 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 lughway, freeholder's certificate, notice to occupant, on application to lay out a highway, order laying out highway, without the consent of the owner of land, agreement ae 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-assessment, ............................... notice to town clerk to draw jury............................ certificate of drawing jury................................... summons of justice, ._............................ oath of jurors and witnesses,..........^.—.—..-.........—. verdict of jury, .............—........................ certificate of justice, . — . . application to discontinue old road, 1..' — . oath to freeholders,-.— —......-....................— ....... certificate to discontinue, . order discontinuing road,...-. ...... ...... ... . appeal to county judge from the determination of a commie- sionefj ._......-........... ......................... appomtment of referees by county judge,.. appomtment 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, flubpcena on an appeal, PAOR. 287 288 288 290 290 291 291 291,293 29'J 293 293 291 294, 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 30G 307 307 307 30S 308 309 30y 309 310 INDEX. 653 niGnWAYS- tkom. oath of leferees andwitaeas, SIC deciaion of referees on an order in retatioa to altering or dis- continuing a road, . . 310 decision on order refusing to lay out a road....... 311 notice to remove fences, after a final decision, . ... 311 order to remove fences, in a case of encroachment, and notice to occupant,.. -_— . - 212 precept to summon freeholders in a case of encroachment, and other forma on ilie inquiry, - 313,314 warrant to (Collect costs in a case of encroachment, 311 order of commissioners of adjoining lowns for laying out high- way, 315 application for a private road, and notice to the occupant,.... 315, 316 notice to town clerk and persons interested for re-assessment,. 316, 317 HOLDING OVER BY TENANT— see '•'• Landlord and Tenant." HOUSB- see '^Landlord and Tbhant," and "Town Housbb." HUSBAND AND WIFE— practical remarks......... ............ 3I8-3S2 short form of marriage, ........ ._...._._._._ 322 marriage certificate, 322 certificate of proof, or acknowledgment, 323 oath of witness to a marriage, or to a certificate, .........^ 323 marriage articles, 323 settlement in contemplation of marriage...................... 324 ante-nuptial agreemeai, ..... 326 jointure, in lieu of dower,.... ......... .... 327 articles of separation........................................ 323 see " DowER," and "Wills.'* INSOLVENT LAW— see '' Debtor and GREDtTOR." JUDGMENT— satisfaction of, .. 24, 25 release of real estate by judgment creditor......... ... 512 assignment of judgment, ...... . . 77,78 HOMESTEAD EXEMPTION LAW— practical remarks, . .. 329, 330 clause in a deed of property to be exempt, 330 notice to county clerk and acknowledgment, . 330, 331 release or waiver of exemption, 331 oath to jurors by sherifi; 331 certificate of jurors setting off part of exempt premises, 332 certificate that property cannot be divided, . .... 332 notice of the sheriff to debtor, .. . . 333 JURORS- feesof, 246 see "Highways," "Justices' Courts," and ** Landlord and Tenant." JUSTICES' COURTS— practical remarks, . ....... 334-341 summons, . . 342 affidavit for short summons, different forms, . . 342 description of parties suing in a particular character,.. 343 654 INDEX. JUSTICES COtTRTS— paor. affidavii for warrant in an action for wrong, .. . 343 the same, in an action on contract,™- -'___ _ ,. 344 security on isBuing warrant, or short summons, ditrerent forms, 344 warrant in a civil action— -—_-__p- 345 application for an attachment, and forms of affidavits, 3'i5,346 bond on attachment,.. —_„..-.-_-._„-_.. ...;.»„.„. 3i6 attachment,.. ...— S'l? bond on adjournment, different forms, ... 348 affidavit of justification of bail, 348 complaint in an action arising on contract, = 349 complaint for injuring personal property,. ......_.. .. 349 complaint for breach of warranty, '-.._._.-._....„._. 349 complaint for fraud or deceit, ...-........_.... 330 complaint for conversion of personal property,.... ._.. 350 complaint for injury to real property,.. - 350 complaint by an assignee,^ . 351 answer of defendant,. __... .- 351 answer, with notice,. , - 351 oatlis on application for adjournment, 352 examination of witness, on defendant's application for an ad- journment,...- -..- _-.. ...- 352 ftubpcena, 352 subposna, on application for an attachment,. ... 353 subpoena for special sessions,.... ..... 353 affidavit of service of subpoena, -..-......- 353 oath to party proving service of subpoena, 354 attachment for a witness, _ ......... 354 notice of the application for a commission, and necessary oaths, 354, 355 commission, and forms for the commissioner, 355,350 venire, and oath on objection to the service by a constable,...- 357 forms of oaths on the trial of a cause, .......— 357,358 written confession of judgment, and affidavit,...........-..—. 358 transcript of judgment,... _...................— 359 execution, and renewal,.... .-... 359, 360 complaint to obtain surety of the peace, and other forms on application for peace warrant, . 360, 361 complaint for assault and battery, and warrant, . 361, 362 general form of a warrant,.-. 363 complaint for larceny and warrant, 362, 363 complaint for murder, different forms, 363, 364 complaint for poisoning, . 363 complaint against accessory after the fact, . — . 364 complaint for arson, different forms, . . 365 complaint for setting fire to grain growing, - 366 complaint for manslaughter, 366 complaint for killing an unborn child, different forms, 366 complaint for rape, different forms, 36? complaint for assault with intent to commit a rape, - 367 complaint for forcible abduction of female, .- 367 complaint for enticing away Temalo under fourteen years...... 368 complaint for mayhem or maiming, 363 complaint for child stealing, 36^ complaint for abandoning child,....- — ..-..-—... 369 complaint for shooting at with Intent to kill, &c., 369 eeinplaint for assault with deadly weapon,........— ..»-— 369 INDEX, 655 lOSriCES' COURTS— complaint for poisoning food,„_..„. .__-._».„.,..., ........ com| laint for poisoning well, : complaint for assault with intent to rob, complaint for burglary, difTerent forms, complaint for constructive burglary, . .__... complaint for forgery, differont forms, complaint for passing, or oflering, counterfeit bank notes, complaint for counterfeiting, or altering, bank notes, complaint for obtaining property by false token, or by falsely personating another, . coniplamt for obtaining money or property, by false pretences, complaint for robbery, .„. complaint for embezzlement, . complaint for receiving stolen goods, . complaint for perjury, ., . complaint for bigamy,.- : .. complaint for knowingly marrying another's wife,.... . complaint for maliciously poisoning an animal, .. complaint for malicious trespass, or girdling trees, .. complaint for procuring abortion, . complaint for making an affray,.... complaint for cruelty to animals, complaint for arout or riot... .. .... complaint for selling unwholesome food, .. . ... complaint for disturbing religious meeting, .. complaint to obtain search warrant, and warrant, . oath of complainant, or witness, on a complaint, . recognizance in justices' courts, record of conviction at special sessions, commitment from special sessions,. we "acknowledgusnts," etc., "apfbehtioes and servants," " Fees of Officers," " Hiohways," " Husband and Wife," " Landlord and Tenant," " Official Oath and Bond," "Pension Vodohbrs," "Poob Laws," "Service and Re- turn of Process," " Town Auditors," and " Town Houses." JUSTICES OF THE PEACE— fees of, . . .... ............ .... ........ ....M see "Justices' Courts." LABORERS— see " Mechanics' and Laborers' Libk." LANDLORD AND TENANT— practical remarks, .......... ......„..........._ landlord's certificate of renting,... tenants' agreement, .... ............. . security for rent, landlord's cerfificate tenant not to underlet,^., . tenant's agreement not to underlet, .. tenant's agreement and pledge of property, .... landlord's certificate and tenant's agreement under exemption act of 1842, agreement for lease,.... . ... lease and chattel mortgage, . • agreement between housekeeper and lodger, indenture of lease, l*AOK 370 37(1 370 371 372 372, 373 373 373 373 374 374 374 375 375 376 376 376 376 377 377 377 377 378 37S 378,379 379 379 380 (HI ssi-ass ■»» 38? %8 390 656 INDEX. L4NDL0RD AND TENANT-- >A0K. larming \ea^ on shares, ...................... 3.......-—.-■•..-—-.-.-» 613 bequest of, in will, ............ — 58& LEGATEE— bond ofj - 125 the same before suit, ...........J».. — .... — . 126 power to receive legacy, — ......... .„.- — ........ 604 release of legacy,- — - — .................... 613 bequest of legacy in will,...-...-— .—.—..— .-.^- ■ G60 LETTER OF ATTORNEY— see " Powers of Attobmbt." LIBRARIAN— sec *' Schools." INDEX. 657 I'ICENSE— M«B. letter of, to a debtor, ..„.._. . 206 of tavern keeper to aell spirituous liquors, 233 of tavern keeper under act of 1813, 231 grocer's licenae,__„ . . 234 to keep ferry, _ . .„ 270 LIEN- see "BiLi.8 OP Saib," bto., " Landlord and Tbhant," and "Mbohanios' and Laborbrs' Libh." LUNATICS— practical remarks, 413, 111 request to superintendent of the asylum, ■ 114 certificate of physicians, to accompany request, 414 application to county judge, and affidavit, 416 order of judge on the application, .. 415 subpcena and other forms on the inquiry before the judge, . 116,417 warrant to confine lunatic, .... 486 BIARBU6E— form for the ceremony of, , 322 certificate of maiTiage, 322 acknowledgment, or proof, of certificate, . .. 323 oath of witness to a marriage, or certificate, ,.»_. . 323 articles of man'iage, .. _. . 323 marriage settlement, 324 ante-nuptial agreement,.... . . .... . ... 326 jointure, in lieu of dower, . . . ... 327 articles of separation, .. . .......... 323 see " Dower," " Hosband and Wife," and " WiLLa." UEOHAMCS' AND LABORERS' LIEN— practical remarks, - 118,119,420 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 ofl*aet, .............. 421 statement by laborer and contractor, .. 421 writ of inquiry from court, ... ...... 421 aflldavit for execution,.... ......... . . — ... 422 execution by county clerk, ... . • — ~ 423 UORTQAOE- , ^ ^ „, satisfaction of, 22,23, 24 bill of sale, different 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, .............. 176 for part of purchase money....... . — .. ........ 176 with covenant to pay, ........... 176 with fire clause, . ..... .. ......... 176 with interest clause, ... 177 fay husband and wife....... . — . ......... — .... 178 by corporation, ..- ..—.. 173 tc corporation, ...... — ................ — ............ 180 as security on note...... .............. .............. iSO CO secure indorser, . .............. . .... 181 to executors........................................ ..... 182 on lease by an assignee..... .• 1B3 42 658 INDEX. UORTGAOE— PAaz, afiaignment of, diflsrent forms...... .......................y. 79,60 lease and chattel mongage, ...... .............. 3€6, 389 fonns on foreclosure of, by advertisement.............. .....184, 185, 186,187 NATURALIZATION— practical remarks, ...... . — ................ 42i 425 declaration of intention, and clerk's certificate, .. .„ 425 oath of alien, . ......... — . — • 426 affidavit of alien under eighteen at the time of his 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— NOTES- OATH— fees of, - 249 forms of protests, notice, and certificate of service............ 108, 109, 110 general form of notarial certificate,.... ................... 110 forms of, -. — . 106, 107 see "CI.EKEB AND CbIERS," " HlOHWATB," "Jubtiobb' Covbtb," "Landlord and Tenant," "Ofpioiai Oath and Bohb," and "Poor Laws." OFFICERS- see "Fees of Offioeks," and "Official Oath and Bokd." 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 sherifi''ssureties,.................................«. 431 bond of a deputy sherifi'..... .........»....»«_ 431 general form of an official bond,.............»..«.»»...« 432 ORDERS- .„ forms of, ......... ....................«M>.M>.M«M 109 OVERSEERS OF HIGHWAYS— notice of acceptance of office,...-...-..— .«■ — ■■■ — ■■■■ ■ ■■ 490 see "HlOHWATB." OVERSEERS OF THE POOR— oath of office, .._ ........-.— .......... 430 fees of,.. . a« see "AFFBBmioBS ahd Sbbtaktb," and " PooB Lawi." PARTITION— ,„ deed of commissioners,...........-..— ..»..■> — p ■■■——.• 164 deed of sherifi*, ..................»•.•......—.-.—.. 169 fees of commissioners, ............................——-«• 341 PARTNERSHIP- ^_, ^„ practical remarks, ..........—......——..—.———. *K 43b articles of co'partnership, general form,...........— ....... 436 the same, between country merchants........................ 437 agreement to renew partnership, ..............>..•••.•• 439 IMDEX. 659 PARTNERSHIP— P^ai. agreement of dissolution, ., . 439 cectificate of limited partnereliip, 439 acknowledgment of the certificate......... .... 440 affidavit of general partner, 440 order for publication of notice . 440 notice to be published 441 PATENTS— ciactical 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, ..................... 461 PENSION VOUCHERS— practical remarks, ... 462,453 affidavit of pensioner, . .. 464 magistrate's certificate, where pension has remained unclaimed for fourteen months, * . 454 certificate of the olerk,... . . .' ... 455 power of attorney to draw pension, and acknowledgment,.... 455 oath of the attorney, . . ........... 465 affidavit of guardian of pensioner, ......... 466 affidavit by a widow, a pensioner, 456 affidavit of a widow under act of 1843, ....^ ; 4S7 oath of identity for the widow or child of a deceased pen- sioner, . 467 power of attorney for widow or child of deceased pensioner,.. 453 certificate of court to death of pensioner, ....... 458 evidence where oertificate is illegally withheld, ....... 468 eertificate of magistrate and clerk, . ......... 469 FLANK ROADS— practical remarks, 460-464 notice of subscription, ................ .... .. .... 464 articles of association, .... ......... . .. 464 scrip certificate, . ..... — ............. 466 affidavit of amount of stock paid in............. .._.. 466 notice of application to board of superrisonr, . ..... 466 conveyance of right of way by owner......... ,46S consent of inhabitants,.... . . 467 release of right of way by supervisor and commissioneri...... 467 acknowledgment of a survey,. 468 notice to pay in installment, — . . ............. 468 proxy, . .. — . .... ...... 95 notice of drawing jury to assess damages, 468 notice of meeting of Jury, -469 POOR LAWS- , , ^„ ,„ Dractical remarks,. 479473 bond of county euperintendent, ...«..«.._.. 473 660 INDEX. POOR LAWS- PAOI application to compel the support of a poor relative, — ...... 474 notice of the application, and affidavit of service, ..... 174 warrant to seize goods of an absconding 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 settlement will be contested, and other forms, on the trial before the superintendents, ......^.. « 477,479 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 houBe,.........^ 481 certificate of keeper of poor house for expense of remoral,... ' 481 superintendent's order to expend over ten dollars, ^_.._.... 481 notice of improper removal of pauper from another county,.. 481 annual report of the superintendents 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, 434 warrant to commit a child to the county house................ 485 consent by overseers to bind child, .......^... .......... 60 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 jm-y, and other forms necessary on the trial,. ......... 486, 487 execution against the drunkard, . — . .... .. . .. 487 execution against the overseer, .. ... ........... 488 revocation of overseer where drunkard reforms, ........... 488 complaint against a disorderly person, and recognizance....... 4S8, 489 discharge of disorderly person, ................ 489 jailer's report relative to disorderly persons................... 489 application of superintendent, or overseer, in case of bastard, 490 examination of mother, different forms........................ 490 warrant to apprehend reputed father, and suhpcena...... ...... 490 bond on adjournment, . ................. 491 order of filiation on arrest in same county, ..... ....... 492 bond 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 indorsementof justice in foreign county, . .... 495 bond on arrest in foreign county, and certificate of discharge,. 496 •rder of filiation in the absence of reputed faUier arrested in foreign county, . . ........ 496 warrant to commit mother refusing to disclose name of father,. 497 summons where mother of bastard has property in her ow^ right 498 «rder to u>mpel mother to support bastard child............... 498 warrant to commit mother for not executing bond,.... ......... . 499 warrant tosizee property of absconding father, 6U0 INDEX. 6G1 POOR LAWS- VMB. onlor reducing sum in the order of (illation, GflO notices of application to the court of seBsions to increase, and reduce sum, 601 notice or appeal from order of filiation, BOl eeo "Apprgntioes and Sbrvahtb." POUND MASTERS— fees of, ...... .................................... 200 ace " SxttAYB." POWERS OF ATTORNEY— practical remarks, 602 COS general form of power of attorney, .... ..... . 603 power to collect debts, 604 to collect rents, b...... ....... 604 to receive a legacy, ..... 504 to receive distributive share of personal estate, ........ __...... 506 to take cliargo of lands, 606 to transfer stock, . ■...._.. 95 to receive dividend, . .___. 96 to confess Judgment, . 127 todraw pension, ... 455 the same by widow or child of deceased pensioner,.... ..... 4Gb general power to transact business, ... . 60«.' general custom house power, . ...... ... 607 power to sell and convey real estate........ ......... ... £07 power to effect insurance, . . . ... 607 substitution of an attorney, ....................... 608 revocation of power...... ............... ........ ......... 508 PRINTERS- fecB of, . 250 affidavit of publication of notice of sale on mortgage....... 185 PROCESS— see " Servicb and Reisbh of Froosss." PROMISSORY NOTES- forms of, . .... 106, !07 PROTEST— forms of protest, notice, and certificate of Berrice, ............ 108, 109, 110 fees of notary,.... 249 PROXY— form of,and affidavit,.... . . ......................... 95 oathofprozy, !.... ,. 9S RECEIPT AND RELEASE— practical remarks, ....„ 609,510 receipt, diScrent forms, ...._ blO, 511 release of all demands, 611 special release, 511 release by creditor named in an assignment,.... ........ 611 release of part of mortgaged premises......... ........ ........ 612 relea^ehy judgment creditor, . 512 'eleose of legacy 613 release to restore competency of witness, dilTercDt forms....... 613, 614 release of dower, 238 release by owner of land on altering highway, . ...... 299 release by supervisor and commissioners to plank road coir- pany, 467 release in pursuance of an ,- pany, i 467 REVOCATION— of submission to arbitration,.... .. ..... ........ 69 of power of attorney,.... .. ... . ..... 608 SALE— see " Bills of Salb," btc, " Landlord ahd Tbnaxt," and "Sbbvicb and Return of Procbss." SATISFACTION— of judgment, 24, 26 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, ... 625 resolution creaiingnew district, ... 525 consent of trustees, ................ ... 526 notice to trustees not consenting, and proof of service......... 626, 527 ' notice of the first meeting in a district to organize, .... _. 527 notice of sale of school house by the town superintendent,.... 528 apportionment of proceeds of the sale, ........... 533 resolutions for the alteration, or formation, of districts, 038, 529 certificate to teacher by town superintendent, . . 529 instrument annulling the certificate, ^ ...... 630 annual report of town superintendent, — . .......... 630 list of votes to be kept by district clerk,. . 533 forms of minutes of proceedings of district meetings, ... S&3 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, . . 634 order of trustees for teachers' wages, 536 order for library money, _...-.._.._„_,.. ....1. 535 account of trustees, and inventory of district property, 536,536 ftnnual estimate of trustees, 536 INDEX. 663 S0HOOL»- notice w be posted' on Bchcol houae door,......— ............. tax list and warrant,,....... , .................... coUector'a bond,___. . .. .... ._......, nouce tnat collector will receive taxes......... , renewal of warrant,.... ... ................. return of collector, notice of levy and sale by collector, fees of colIeMor, . 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 ordei, . ....... annual report of trustees, ...... the same, where district is formed out of two or more towns,-. notice of district meeting, different forms, .. cleric'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........................................ SEALEIU- oath of office, . ieesof, ........ SEPARATION— articles of, . .... — ... — ............... SERVANTS— see " Affbehtices Ann SEnvAMTB." 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, difierent forms,.... .. SHEEP- injuries to,. SHERIFF- oath of office, bond, bond of deputy, bond of indemnity,.. PAOK. 637 53a 639 639 S39 639 26' 640 640 641 641 641 543 644,645 645 646 646 646 547 647,548 648 648 549,650 650 661 662 430 251 E63.S66 655,656 656 656,557 667 657 658 653 659 669 659 660 (60,661 266 430 430 431 V/a 664 INDEX. SHERIFF— assignment of bail bond,„._ .„.,... . „. ■-... .. acknowledgment bysherifl'or deputy^ -.„. ., certificate of the sale of real estate, --—..-.« affidavit of redeeming creditor, , . „,.. deed on sale under execution, _-„...„.,.., deed in partition, . .„, . deed on foreclosure of mortgage, ... fees of, . .... . KTEATS— practical remarks, . .-_.-. note to be delivered to town clerk, .... ......... notice of sale where stray is not redeemed, ..... receipt of supervisor for proceeds of sale of stray, ........ see "F&HCB Vibwers.' SUBSCRIPTION— to raise money to build church or bridge,........„...«,«..„, SmUMARV PROCEEDINGS TO RECOVER LAND— see "Landlord and Tenant." SUMMONS— see " JirsTicES' Coubts," and "Ssrviob and Rbtubm of Pboobbb." SUPERVISORS— practical remarks, . . ... .... oath of office, . . fees of, . . form of keeping supervisor's book, . certificate on examination of his accounts, . certificate to accompany copy of entries in town clerk's book, notice of special meeting of board of excise,.. forms required by the board of excise, ... appointment of a commissioner of highways to fiL vacancy,... report where all the poor are not a county charge, notice to town superintendent to furnish additional security, receipt of proceeds of sale of stray, . approval of sureties in a bond, — ......... ............ list of jurors, . — . . — ............. — . — . — ..... list of grand jurors, . . — ...... tax bill, notice of election, . . — ..... ... alteration of election district, ........ . division of a new town into election districts, . notice of meeting to fill vacancy in office of inspector of elec- tions, ...... appointment of inspector of elections to fill vacancy,.... . affidavit verifying account, . . .. bond of commissioner of highways and approval, — . — . statement and estimate of commissioner for supervisor,..-.^. overseer's list of non-resident lands for, . ......... constable's bond, and approval, . — . — ....... town superintendent's bond, and approval, .. •ee " ExoisB," " Hishwats," " Taxbb," " Town Audjtobb," and "Town Hoosbs." flURRENDER— of a term of years, . ..... .-«.....«. of a lease to the lessor, > — . of patent for re-issue, ..... . ........ PASS. 82 IS, 16 167 167 168 169 170 251 662,563 663 663 £63 42 664-667 667 2S4 667 568 668 232 232-S35 283 483 625 563 569 S69 670 670,576 Bin 671 571 sm sri 582 284 286 287 430 621 447 INDEX. 665 SIFRROGATC— foes 'of, ...>->•■■...■...«.....«•■..•.•■•■■•*■.■••«■••■•••>••■• *^ aee " Dower," and " Willb." SURVEYOR— fees of, . .„....._._..„-.«. «.— 267 TAXES— practical Temarks,.... .«....................»>...-m- B73-576 aasessment roll, .__............. ...^ ........... ....»--.«-- 576 notice of completion of assessment...... ...^........•.....»- ^77 affidavit to reduce tax, - - - 577 certificate to assessment roll......... ........ ....._..........■> &7B notice to collector, . , ........... 578 collector's bond, .__..„.. - . .— 579 collector's bond under militia law, ......... — 579 notice of collector,. ......................... 579 county treasurer's warrant,............,..................^ 58'' see "HioHWATS." TENANT- • see "Landlord amo Thkamt." TOWN ACCOUNTS- «e"TowN Auditors." TOWN AUDITOUS- praciioal remarks,. ...... __..•...............«.«••..••.»•.• 681 certificate of auditors, ..... ........................... 582 affidavit to verify account, . ................... 58« abstract of accounts, . ......... ................ 58« annual account of commissioner of highways to............... 2Sb TOWN CLERR- oath of ofiicfl,: . . ..... 49) fees of, , 268 see " Highways," "Husband and Wifb," -^Offioial Oatb AND Bond " ^'ScHooLSf" "Town Auditors," and **Town "iioVBSS.'' TOWN COLLECTOR— fees of, «. . 258 bond, - 578, 579 notice that taxes will be received..................... ..... 579 TOWN HOUSES— practical remarks, 584 notice of intention to propose resolution......... .......... 584 certificate of canvassers at town meeting,... ........... 585 resolutionof board of supervisors............................. 586 TOWN SEALER— oath of office, ... .......................... 490 fees of,.... ....................................... 251 TRUST— deed with trust habendum clause,.... ...............m 1C6 creation of by will, for a life, or lives, 602 TRUSTEES— fees of trustees of debtors, ........... Wi deed by trustees of absconding debtors; .... . .... .......... 166. deed with trust clause, .......... 16{| acknowledgment by,.... ...... .... ................ 1? 666 INDEX. nSSTEGS— rA*l. application for appointmont of, for Miatea of debton confined for crime,.. ...„ 220 appointmenl and oath........ ...... ... ........... 230, 221 articles of marriage................. ..... ............ 323 Eettlement in contemplation of marriage...... ...... ........... 324 lAte-nuptial agreement................. .................. 326 jointure, .... . .................. .,....«, . 327 devise to, during a life, or llTea,.„.............._.........„ GS3 see "SoBOOLS." VASRANTS- eea "Poor Laws." WARRANT— eee "ACKH0WLBDOHEHTS,"BTa.^ "Afpbbhtiosi AXD SBBTAIin," "JusTioEa* Courts," "Landlord and Tbhaht," "Poob Laws." and " Ssbviob and Rxtitrn or FROCBai," WILLS- pra^ical remarks..................... ................... 686-G)j8 vill of real and personal estate............................... £89 codicil to a will, ..... . ................. G90 nomination of executors in a will............. ............. £90 devise to executors in trust, with power to sell, 4cc.,.. ....... 890 disposition of the tuition and custody of children hy will....... 690 provision in a will for a posthumus chiltt,.... 69) provision for children bom after execution of will, different forms, . — . . ..........._. 691 devise of an estate for life, and for the revenriDn,............^ 691 devise to trustees, during a life, or lives,..............„._.. 692 devise of an annuity, ..............................«.«.m 081 MTNESSES- feaa of,.. . . . — .„. — ._.. aOi •ea " AnaowuDoiiEHTa," aTO., " Clbbkb and CniiRs," ■■ iImm- WATS," "jDitiou' Codbts," and "Laudlobd AifDTuAay." INDEX TO APPENDIX. ABANDONMENT' 693 general remarks 593 ordinary form 693 more extended form '. 693 ACKNOWLEDGMENT AN D P ROOF OF DEEDS 694 in Alabama 694 proof by subscribing witness 694 in Arkansas 694 grantor known to the officer 694 grantor not personally known to officer 693 by husband and wife, joint deed of wile's land 595 by husband and wilte, joint deed of'husband's land, 695 proof by a subscribing witness 696 proof of handwriting 59G in Californ ia 696 grantor known to officer 696 wliere a wife joins 696 grantor not personally known to officer 697 subscribing witness personally known to officer. . . 697 subscribing witness not personally known to officer, 697 In Territory of Colorado 597 where wife does not, and where she does join 697 In Territory of Dacota 698 in Delaware 598 form No. 1 698 of a deed of a corporation 699 in District of Columbia 599 where wife docs not, and where she does join 699 in Florida 599 in Georgia 600 proof by subscribing witness 600 in Iowa ; 600 grantor personally known 600 party not personally known to officer 600 in Ken t ucky 601 inMaryland 601 in Minnesota 601 In Mississippi 60^ where wife joins 602 in Missouri 602 in New Jersey 602 in Ohio 603 in Virginia 603 in West Virginia 603 in Wisconsin 604 668 INDEX TO APPENDIX. 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AFFIDAVITS 601 ordinary form 604 of subscribing ivitneas 601 ofwitness, to obtain release from arrest 601 bastarrly, afliilavit of inottier on lier examination 605 of arbitrators , . , , , 605 of amount due on judgments 605 of personal service 605 to entitle a creditor, to redeem 606 of imprisoucd, to obtain discliarge 606 of publication ou foreclosure by advertisement 606 of resident alien, in order that he may hold real prop- erty in New York 007 of posting notice of sale 607 of officer making a distress 607 of service of subpcena 608 of summoning jurors in plaukroad case 60S of service of award 608 of delivery of execution to siieriff. 60S procure arrest and extradition 609 of sheriff, when liable as bail, to be exonerated 609 to be annexed to proxy, in order that an attorney may vote at an election held by a moneyed corporation. . 610 to accounts rendered by ofllcers to board of supervis- ors 610 to statements of unclaimed deposits or dividends 610 of coroner, with statement to board of supervisors. ... 611 of pre-emption claimant 611 AGREEMENTS AND CONTKACTS 612 for the sale of goods as they shall be apprised 612 agreement between two or more persons to unite iu a ' purchase, each to pay a part of the price and charges 612 giving the right to make and sell an article covered by letters patent 613 sale of good will of trade or business with contract in restraint 614 where the contract is executed by agents 615 construction of a previous contract 615 EXaSE 616 order appointing a commissioner 616 certificate of character 616 justiflcation of sureties to bond 616 acknowledgment of sureties bond 616 proof of signatures to petition 617 transcript of minutes to be filed in the ofilce of the town clerk 617 FEES OF OFFICEES 617 assessor's fees 617 clerk of the poll's fees 617 county clerk's fees 017 clerk of the oyer and terminer and grand sessions. . . . 613 clerk of the board of registry 618 commissioners of excise 618 IKDEX TO APPBXDIX. 669 FEES OP OFFICERS— Con«jmcd. commiasioners of highways commissioners to loan N. Y. deposit fund constable's fees in special proceedings in criminal coses affidavit general services coroner's foes inspector's of election juror's tees justice of the peace, in civil cases in criminal cases overseer's of the poor printer's fees sheriff 'a fees supervisor's fees witnesses' fees GUARANTIES that a note will bo paid that a bond will be paid of Gollectibility of rent in consideration that legal proceedings will bo es- topped that a contract will be performed general letter of guaranty . special letter of guaranty PAT AND BOCTNTY general remarks oath form of declaration for an invalid pension application for an increase of pension application for a transfer application for a new certificate application for widow's pension application for restoration to rolls application of father for arrears of pay and bounty. . . . application of mother for arrears of pay and bounty.. . application of brothers and sisters for arrears of pay and bounty guardian's form application for land warrant application for compensation for property token oath of allegiance RECOGNIZANCES short form formal recognizance SUBSCRIPTION PAPERS for a church for the support of a clergyman TITLE, ABSTRACT OF FAOE. 618 618 618 619 619 620 620 620 621 621 621 623 G23 624 624 624 624 624 625 625 625 625 625 626 627 627 628 629 630 630 631 632 633 633 634- 634 635 637 637 637 637 637 637