Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIR9T DEAN OF THE SCHOOL By his Wife and Daughter A. n. BOARDMAN and ELLEN D. WILLIAMS KFN606o!c89" leT/""' "-'""^^ ^KiSnl,„fl^. Pfactice .{"special proceedi 3 1924 022 883 817 Cornell University Library 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/cu31 92402288381 7 THE LAW AND PKAOTICE SPECIAL PROCEEDINGS, SPECIAL CASES, rNCLTJDnSTG THE PSOVISIONAlj KEMBDIES pF " AKHEST AND BAIL," "attachments of PKOPBRTY," and "CLAm AND DBLIVBRT," UNDER THE CODE OF CrVIL PBOCEDUKB. WITHIN" THE COURTS, ETC., 01" THE STATE OF NEW YORK. WITH AN APPENDIX OF FOEMS.. m TWO VOLUMES. ( ' • BY CHAELES CEARY, \< '; X GOUNSELOE AT liAW. TV VOLUME I. PIFTB EDITION!. ALBANY: W. C. LITTLE & CO., LAW BOOK PUBLISHERS. f 1877, Entered accordiiig to Act of GongresB, in the year 18S8, By CHAELES CEAET, In the Clerk's Office of the District Court of the tTnited States for toe BonUiem District of ITew York. Entered according to Act of Congress, in the year 1866^ Bt CHARLES CEAET, Ie the Clerk's Office of the District Court of the United States for the Sonthem District of ISTew Tork. Bnteied according to Act of Congreea in the year 1869, Bt CHAELBS CEAET, In ths Clerk's Offlcelof the District Court of the United States for the Sor.them District of New Tork. Entered according to Act of Congress, in the year 1877, Bt CHAELES CEAET, In the Office of the Librarian of Congress at Washington. PRE FAG E TO THE FIFTH EDITION. The several previous editions of this work have been ex- hausted some time ; and another edition is called for. Since the second edition was published, in 1866, important amendments have been made by the Legislature to several of the Special Proceedings considered in the work. In addition, the Code of Civil Procedure, recently enacted, has revised the whole law on the subjects of Arrest and Bail, Attachments of Property, and Kedemption of Eeal Estate from Sales on Execution. These statutory revisions, as well as the amendments referred to, are stated in full in their proper places, ia the Supplements at the end of the chapters. In the Supplements, also, may be found a digest of the numerous decisions, made by the Courts of this State, since the second edition was published. The text of the two editions is substantially the same ; the difference in the editions being mainly in the Supplements ; in which are noted all the recent decisions and alterations in the practice, including those made by the new Code of Civil Pro- cedure. New Tokk, October 1, 1877. PEEFAOE TO SECOI^D EDITION. A EBV18ED edition of this work is believed to be required by the profes- sion. The first edition was published several years ago, since which time hardly one of the important proceedings considered in it but has been sub- jected to material alteration, or amendment, by the Legislature. In some cases, those amendments have been so radical as almost to change the whole nature of the proceeding. A revision of the work was necessary, for that reason alolie. Besides, in the first edition, several important special proceedings were omitted ; while in the present edition may be fouad not only all the subjects contained in the first edition, but many subjects not therein considered, nor treated in any other law publication. The intention, indeed, has been, to include in the present edition every special proceeding recognized by the statutes of this State. The work, it will be seen, has been increased in size much beyond that of the first edition. This was rendered necessary by the insertion of the new proceedings referred to ; proceedings which will be found to be of such importance and value to the profession, as to more than compensate for any inconvenience arising from the increased size of the work. In the general arrangement and plan of the work, I have pursued the same system as that adopted in the first edition, being satisfied that no change which I could make would materially improve it. New Toek, Aug., 1866. PREFACE TO FIEST EDITION The practice in special proceedings forms peculiarly a system by itself, being entirely different and distinct from the practice in civil actions under the Oode of Procedure. It is in many oases, also, summary in its nature, requiring prompt and efficient action, and often involving delicate and important questions bearing directly upon the rights of person and prop- erty. The necessity for a work collecting together the authorities on the subject, and arranging them in proper form, so as to present clearly and distinctly the law and the practice in those proceedings, has long been felt; and it is the object of the following pages to supply such a work. There are several subjects, however, properly coming under the head of special proceedings, or proceedings in special oases, which are not in- cluded in the volume; for the reason that to introduce them all would render it inconveniently large. But the more important of them are here considered. In the preparation of the work, I have endeavored to give the prac- tice fully on each of the subjects considered, from the commencement or institution of the proceeding, down to and including the judgment ; and also the proceedings upon appeals from the judgment, where the practice is different from appeals in ordinary cases. Much attention has been given to the forms in the Appendix ; which are designed to be full and complete. In preparing them, I have care- fully consulted the statute, as well as the approved books of practice whicli have treated of the' subject under consideration, and have de- rived valuable assistance from the works of Messrs. Barbour, Burrill, Tillinghast, and others. A separate index to the forms may be found at the end of the volume. An index to the work itself may also be found at the end of the VI PEEPACE. volume ; and, to increase still further the facilities for reference, I have prefixed to the volume an analysis of the several chapters and sections. The authorities, and cases adjudicated by the courts, are brought down to the latest published reports; and the intention has been to include all the authorities and cases found in the reports of this State bearing upon the subjects considered. In submitting the work to the favorable consideration of the pro- fession, I do not claim that it is free from error. The variety of the subjects treated, their entire independence of each other, and the com- plication of the practice under them, owing mainly to the change in our Constitution, and our judicial system, since the statutes were passed, and the effect of the Code of Procedure upon them, have rendered the preparation of the work difficult and perplexing ; and it will not be sur- ~ prising if some errors should be found in it. But whatever may be its imperfections, it is submitted to the pro- fession in the belief that it will, notwithstanding, prove useful and con- venient, and lessen somewhat their labors in the practice under the several subjects considered. BxLSii, N'. Y., JTor., 18S& TABLE OF CONTENTS. TOLTJME FIEST. CHAPTER I. ADMEASUREMENT OP DOWER. The subject generally ..... How and to what court the widow to apply Serviee of petition and notice Appointment of guardian for infant owners Proceedings by heirs, &o., for admeasurement Order that admeasurement be made Order appointing commissioners, and proceedings thereon Oath of commissioners . . . • Vacancies, how supplied, &o. ... Admeasurement by commissioners Report of commissioners .... Eees of commissioners, surveyors, &c. Setting aside report, or confirmation, &c. ESect of admeasurement . . . • The widow may bring an action to recover possession, &c. Puty of the derk or surrogate on the appeal How appeal brought on, and practice therein Froceedings by the appellate court . Costs of the proceeding . FASH 1 2 e 3 4 5 5 5 6 6 8 8 9 9 9 10 12 12 12 13 CHAPTER II. ARBITRATIONS. History of the statutory provisions What matters may be submitted . Who may submit to arbitration The arbitrators and umpire The submission n 23 25 26 28 vm TABLE OF CONTENTS. Effect of submission .... Proceedings on the arbitration, &c. . ■Witnesses .....*. The award ....... It must be made ■within the time, &c. It must be certain and final .... When the award is void, in whole or in part The award is a bar to an action for the same matter Confirming award ..... Motion to vacate the award .... Motion to modify or correct the award When, and how, motions to be made Proceedings on the application Judgment on the award .... The costs and expenses, &o. . . . Judgment record ..... How judgment to be enforced Review of the proceedings by writ of error or ajipeal Revocation of submission Liability for revoking; action: damages, &c. Construction of the statute In what cases a court of equity may interfere Action to enforce the award PASS 30 . 31 33 . 33 36 . 31 39 . 40 41 . 42 44 . 44 45 . 45 41 . 48 48 . 48 50 . 51 52 . 52 63 CHAPTER III. ARREST AND BAIL. The subject generally When arrest is prohibited; writ of ne exeat . In what cases the defendant may be arrested 1. Arrests under the first subdivision 2. Arrests under the second subdivision 3. Arrests under the third subdivision 4. Arrests under the fourth subdivision 5. Arrests under the fifth. subdivision 6. Arrests of female defendants Waiver of right to arrest . Whether the defendant may be twice arrested in the same action Arrest and attachment in the same action Who are exempt from arrest . Order of arrest, by whom made . Affidavit to obtain order Security to be given by plaintiff , Within whst tune an order of arrest may be obtained and served The order of arrest .... Arrest, how made, &c. ... Wten defendant to be discharged on bail or deposit 55 51 51 58 60 64 65 69 11 11 12 12 12 14 14 11 18 19 19 80 TABLE OF CONTENTS. IX Bail, how given Exception to bail; &c. Notice of justification; new bail, &a . Qualifications of bail Justification of bail Allowance of bail . Deposit with sheriff, instead of bail, &o. Surrender of defendant How bail proceeded against . How bail exonerated When sheriff liable as bail Proceedings on judgment against sheriff Bail liable to sheriff . Motion to vacate order, or to reduce bail Affidavits on motion . Conditions imposed upon vacating order Appeals from order on motion to vacate Execution against the person on final judgment FACfl . 81 81 . 81 • 82 . 83 83 . 84 85 . 86 87 . 89 90 . 90 90 . 91 93 . 94 95 CHAPTER IV. ATTACHMENTS TJNDEE THE CODE. The subject generally . . . . . . . .91 In what cases attachments may issue . . . . .91 1. In what actions . . . . . . .98 2. Against foreign corporations . . . . 98 3. Against a non-resident ... . . 99 4. Against absconding or concealed debtors . . . 102 5. Against debtors removing property, &e. . . . .102 6. Against debtors assigning, disposing of, or secreting property, &c. 103 7. Against partners or joint debtors ..... 105 Attachment in favor of non-resident plaintiff . .... lOP At what time an attachment may issue . ... lOfl Attachment and arrest together . . . . . .106 Affidavit, and what to contain ...... 106 Security on obtaining warrant of attachment .... 107 Wh^re warrant obtained ....... 108 Second application, not allowed . , . . . . .108 The warrant of attachment ...... 108 Duty of sheriff in executing warrant ...... 109 What property may be attached . . . . . .111 How property capable of manual delivery, to be attached . . .113 Attachment, how executed on property not capable of manual delivery . 114 Lien of the attachment ....... 115 Inventory ......... 115 Proceedings in case of perishable property or vessels; claims of third per- , sons, &c. . . . . . . . . 116 TABLE OF CONTENTS. PASS "When certificate of defendant's interest to be furnished . . . 116 Motion to vacate attachment for irregularity, &c. . . . . .118 Application to the court, or the judge issuing the attachment, to discharge the same ........ 120 Sherifi' may proceed to coUect debts, &o. . . . . . 121 Action by plaintiff to collect debts, &c. . . . . .123 Proceedings subsequent to judgment ..... 123 Order, &o., in reference to uncollected assets .... 125 Warrant of attachment to be returned ..... 125 Proceedings if defendant recovers judgment in the action . . 125 Sheriff's fees on the attachment ...... 126 Costs and allowances in the action ..... 128 Disposition of surplus property ...... 129 CHAPTER V. CLAIM AND DBLITERT OF PERSONAL PROPERTT. The subject generally ....... 131 I. Proceedings m caurris of record. When delivery of personal property may be claimed , . . 181 Affidavit and its requisites ...... 133 Requisition to sheriff ........ 135 Security by plaintiff ........ 135 Duty of the sheriff .<■ . . . . . . . 136 Exception to, and justification of sureties .... 137 Arrest of defendant, if property is not found .... 138 Defendant may require return of property to him . . . 138 When property to be delivered to the plainT^iff .... 140 Proceedings if third party claims the property .... 140 Piling of affidavit and notice ...... 141 Undertakings, how disposed of . . . . . . 141 Discontinuance of action by plaintiff ...... 141 Motion to set aside proceedings ...... 142 Abatement of the action ....... 142 The verdict on the trial of the action ..... 142 Judgment in the action ....... 144 Costs in the action ....... 145 Execution in the action ....... 145 n. Proceedings in justices^ cowts. _ When the proceeding may be instituted ..... 146 Affidavit and its requisites ....... 146 Security by plaintiff ....... 146 Requisition and summons to be issued by justice .... 14T Duty of constable, &o. ...... . 147 Exception by defendant to plaintiff's sureties .... 148 Return of property to defendant, and proceedings thereon . 148 Qualifications and justification of sureties ..... 148 TABLE OF CONTENTS. XI Proceedings where a third party claims the property Proceedings if defendant cannot he fotind Trial and subsequent proceedings to judgment . Execution in the action . . . . Fees of the justice .... rAQ-a 149 . 149 149 . 150 160 CHAPTER VI. THE "WRIT OF CERTIORARI. The subject generally ....... . 161 I. When and in what cases the writ issues. 1. Generally ....... 152 2. To inferior courts and judicial ofBoers . 154 3. To municipal corporations .... 156 4. Other oases ...... . 156 11. How the certiorari is oitained, amd proceedings thereon. Who may have the writ ...... 15T When, and within what time, to be applied for . . 158 Affidavit to be made ...... 158 How, and where apphed for . . 158 Application for the writ . " . 159 The writ, its form, &c. ...... . 160 Effect of the writ ; staying proceeding^ .... 161 Supersedeas of the writ ...... . 161 The writ may be quashed ...... 162 Return to the writ ....... . 162 Proceedings on the return ... 164 Proceedings to compel a return . . . . . . 165 Annendmerits ....... 165 Judgment ........ . 165 Appeals ........ 166 CHAPTER YII. PROCEEDINGS AS FOR CONTEMPTS, TO ENFORCE CIVIL REMEDIES. I. In what cases apa/rty is in contempt. 1. Statutory provisions ....... 169 2. Contempts in not paying money ordered to be paid . . ITl 3. Violation of injunction order . . . . . .116 4. Breaking open sealed parts of books produced for inspection ' . 180 5. Interfering with property in possession of receiver, committee, Ac. . 181 6. Contempts in proceedings supplementary to execution . . 181 1. Contempts in other cases ...... 182 How order to be served to bring party into contempt . . . 184 II. Sow parties jyroceeded against. Courts and officers having jurisdiction ..... 186 xu TABLE OF CONTENTS. FAGB Who may apply far an order to punish a party for contempt . . 186 Within what time the -attachment should be apphed for . . . 187 Where application to be made ...... 187 Methods of proceeding, and how application to be made . . . 188 1. Proceedings by attachment ..... 190 2. Order to show cause ....... 192 Habeas corpus may issue where party is in custody . . . 193 The court to direct the penalty of the bond, &c. . . . . 194 Arrest of defendant. and duty of sheriff ..... 194 When defendant to be discharged on giving bond, &c. . . . 195 When defendant cannot be discharged except by court . . . 195 Sheriff's return, and attachment by default ..... 196 Proceedings in case of defendant's default . . . .197 Proceedings on the return of the attachment; filing of interrogatories, 4.0. .198 Eeferenoe to examine party and report as to contempt . . . 200 Proceedings if defendant is found guilty . . . . .201 Punishment of defendant, and extent thereof .... 202 To what extent the defendant's misconduct may be excused . 204 Order and process of commitment ...... 206 Where defendant to be confined ...... 208 Effect of contempt in respect to applications for favors, &c. . . . 208 Release or discharge of parfies imprisoned .... 210 Costs of the proceeding ....... 211 Appeals .......... 211 Action by party aggrieved upon the defendant's bond . . . 213 Action upon bond, where there is no party aggrieved . . . 214. Liability of officer, if insufScient sureties are taken .... 214 Parties in contempt Hable to indictment also . . . . 216 CHAPTER VIII. PROCEEDINGS AGAINST CORPORATIONS AND THE DIRECTORS AND MANAGERS THEREOF. Section I. PeOOEEDIN"OS by JUDeMENT CREDITORS EOE THE SEQUESTRATION OF PROPERTY. The subject generally ;...... 218 Application to the court, petition, 4;o. Notice to the corporation, or order to show cause Hearing, and order thereon Preliminary injunction and receiver . Pinal hearing and decree . Receiver and his proceedings Accounting by receiver Discharge of proceedings Staying proceedings at law 219 220 220 221 221 222 229 230 230 TABLE OF CONTENTS. XIU Section 11. Peooeedings to compel the .execution, ob eestkain the abuse OP corporate powers. Jurisdiction of tlie court ....... 231 How, and by whom proceedings instituted .... 232 Petition and notice . . . . . , . . .232 Hearing and order ....... 233 Section III. Proceedings against banking oe insurance corporations. "When corporation will be restrained ...... 234 Surrender of corporate rights ...... 235 "Who may apply for injunction . . . . . .236 Petition, and what it must contain; affidavit, &c. . . . 236 Notice and application to the court ...... 23T Receiver and Ms proceedings ...... 238 Distribution of property of corporation ..... 241 Section IT. Proceedings for a voluntary dissolution op corporation. In what cases proceedings may be commenced .... 242 Petition, affidavit, mventory, &c. ..... . 243 Order to show cause , . . . . . . , 243 Notice of order ........ 244 Proceedings before referee ...... 244 When corporation to Be dissolved . . , . . . . 245 "Who may be appointed receiver; his security, &c. . . . 245' Eeceiver; his powers and duties, Ac. ..... 246 Appeals ......... 246 CHAPTER IX. PROCEEDINGS TO COMPEL THE DETERMINATION OP CLAIMS TO REAL ESTATE. The subject in general "Who may proceed, and in what cases Summons and complaint, and service thereof Proceedings in the action . Judgment if defendant does not appear Answer of defendant Trial and subsequent proceedings Effect of the judgment Proceeding if defendant recovers Proceedings against non-residents Costs of the action .... Appeals ..... . 247 247 . 248 249 . 250 251 . 251 252 . 252 253 . 258 254 CHAPTER X. PORCIBLB ENTRIES AND DETAINERS. The subject generally ..... "What constitutes a forcible entry or detainer 255 256 XIV TABLE OF CONTENTS. Who may institute proceedings Officers authorized to entertain proceedings The complaint . . • Precept for jury . Notice to the defendant, and how served Proceedings before the jury of inquiry Eestitution ordered, if there is no traverse Traverse of inquisition, &o. The traverse and proceedings thereon What may he shown on the trial . Judgment, and process thereon Duty of sheriff and constable Jurors .... Witnesses .... Pfoceedings set aside on motion Certiorari to remove proceedings . Eeview of decision by Court of Appeals Costs .... The remedy at the common law Action of trespass for the forcible entry or detainer Rights saved by the statute . CHAPTER XI rAoi . 256 257 . 257 258 . 258 258 . 259 259 . 260 261 . 261 262 . 262 262 . 263 263 . 264 264 . 265 265 . 266 FOBECLOSURE AND DISCHARGE OP MORTGAGES. The subject generally Section I. PoEEOLOSUKE of MOBTaACJES BT ACTION. When proper, and when it will be decreed . What courts have jurisdiction How, and where action to be brought Parties to the action Service of summons on defendants . Guardian ad litem for infant defendants . Piling notice of lis pendens Complaint . ... Answer . . . ' . Staying proceedings Application for judgment for want of an answer The reference .... The referee's report Application for judgment . Exception to referee's report . Hearing, after issue joined Receiver of the rents and profits, and injunction Judgment, and what to contain Payment of amount due, and bringing money into court 267 268 272 273 274 281 283 285 288 290 292 293 294 298 299 300 301 802 303 SOT TABLE OF CONTENTS. XV Tender of amount due, and staying proceedings . Sale of the mortgaged premises When sale will be set aside .... Compelling purchaser to take the property . Conveyance by sheriff or referee . Eeferee's or sheriff's report of sale . Effect of the sale ...... Proceeds of sale, and disposition thereof Proceedings on claims for surplus moneys Eeport of referee in respect to surplus moneys Piling report and order of distribution Execution for deficiency .... Proceedings in cases of sale of a portion of the premises, a debt being due ..... Proceedings in cases of subsequent default, when judgment by payment of amount due AppUcation for writ of assistance . , . . Costs of the foreclosure .... Section II. The steict roBECLOsuRE of moetgases. In what oases proper ..... Parties to the action ..... Proceedings in the action ..... Judgment and subsequent proceedings Costs ....... Effect of strict foreclosure .... Section HI Poeeclosuee op moetgages bt abteetisement. What mortgages may be foreclosed Who may foreclose the mortgage Eequisites to foreclosure ..... Notice of foreclosure, and what to contain , . How notice to be given ..... Postponement of sale ..... The sale ....... How the premises to be sold .... The surplus moneys ..... The mortgagee may purchase Affidavits of foreclosure ..... Affidavits, before whom taken, and where filed Becording affidavits, and their effect Evidence of purchase ..... Effect of the foreclosure . . . ... The costs and the taxation thereof . Section IV. The DisoHAEdE of moetsages of eeooed. In what cases ...... Petition, and what to contain Application to the court, and order thereupon Publication, and service of order Proceedings on the return day of the order Duty of county clerk ..... PAGB 308 . 309 313 . 316 317 . 318 318 . 330 321 . 323 324 . 325 part only of the 326 has been stayed . 327 328 . 329 331 . 332 332 . 332 334 . 334 336 . 337 337 . 338 3^0 . 345 346 . 346 348 . 348 348 . 350 350 . 361 362 . 353 356 . 356 357 . 357 357 . 358 XTl TABLE OF CONTENTS. CHAPTER XII. HABEAS CORPUS AND CEETIOEAEI. FASa Boction I. WeIT of habeas corpus and CEBTIORAEI to nfQUIEE ISTO THE CAtrSB OP DBTENTION. The subject generally ....... 359 In what cases the writ issues ...... 361 Who may have the writ ....... 362 Who is not entitled to the writ ...... 365 Where and by whom the writ to be applied for . . . . 365 Petition, and what to contain ....... 368 The writ to be granted, and penalty for refusal .... 3T0 Writ may sometimes issue without petition . . . . .370 Form of writ, and how issued ...... 370 Seal to writs ......... 371 Writ to be indorsed . . . . . . .371 Writ good, though defective in form . . . . . .372 ' Amendment of writ ....... 372 When the ofiScer may require the charges for bringing up the prisoner to be paid ......... 372 Service of writ, and tender of fees, and bond , . . .373 Duty of officer or person served ...... 374 Warrant for prisoner, and proceedings thereon .... 374 When the return to be made ....... 375 Proceedings on disobedience of writ ..... 375 The return, and what to contain . . . . . .376 Notice to parties interested . . . . . .377 Notice to district attorney ....... 378 Amendment of the return ...... 378 Staying the proceedings . . '. • . . . .378 Proceedings on the return of the writ . . . , .378 Prisoner, when discharged . . . . . . .379 Prisoner, when remanded ....... 381 Proceedings if return is denied or avoided ..... 383 Custody and disposition of infants ..... 388 When prisoner to be bailed, or remanded ..... 392 Custody of prisoner ....... 394 How far parties are concluded by a decision on habeas corpus . .395 Prisoner not to be recommitted for same cause .... 395 Penalty for recommitting ....... 396 Penalty for concealing prisoner ...... 397 Penalty for refusing copy of process ...... 397 Proceedings in case of sickness of the prisoner .... 397 When the writ must be the writ of certiorari .... 398 Proceedings on the return thereof . . . . .398 Bail on return to certiorari ....... 398 TABLE OF CONTENTS XYU How order for discharge of prisoner enforced . Officer to be protected for obeying order of discharge "Writ of habeas corpus may issue after certiorari . Proceedings removed into the Supreme Court Eeview by Court of Appeals The provisions of the common law . . J In what other cases the statute applies . Special provisions applicable to the city of New York Section II. 'Wbit of habeas cokpus io being up a peisonbe In what cases . . . . ' . Certain officers may also allow the writ The application, and what to contain . . The writ ..... Service of writ, and by whom . . fees and bond on service Duty of officer to whom the writ is delivered . After testifying, the prisoner to be remanded PAOB • • 399 • • . 399 . 400 • . 400 . . 401 , , . 402 • 402 . . 4oa B TO IBSTIPT. . 404 ■ . . 405 . , 405 . • . 406 • • 406 . . 407 • • 407 • • . 408 CHAPTER XIII. PROCEEDINGS BY AND AGAINST mFANTS. Section I. The DnrEEENT kinds op gttakdians. 1 Gua/rdiicms at the common taw. 1. Guardian by nature . . . 2. Guardian by nurture .... 3. Guardian in socage ... n. Gua/rdicms ly the statute. 1. Guardian by statute, or in socage 2. Guardian appomted by deed or will 3. Guardian appointed by the Supreme Court . 4. Guardian appointed by a surrogSte 5. Guardian ad litem .... 6. Special guardian .... Section II. Appointment op oeneraii ofardian. I. Appointment of general guardian by the Swpreme Cov/rU Who may be guardian . . . ''' . Petition for appointment of general guardian Application to the court, and proceedings thereon . Reference, and proceedings thereon Referee's report, and order thereon . Security by general guardian n. Appomiment of general gvardian ly a swrogate. To what surrogate application to be made Who may be guardian .... By whom application to be made . . . Petition for the appointment of guardian . 411 412 412 413 415 416 41 T 418 420 , 422 424 . 424 425 , 426 427 , 429 430 , 430 430 XYW TABLi! OF CONTKNTS. Application to surrogate, and proceedings thereoA • Bond of guardian ..... How long guardianship to ccnttini;? . , • Powers of the guardian . . . , Appeal from surrogate's depision Section III. Powers, cuTiEfl, AcoonNiASiLiTT, and ebmotal of Powers and duties of general guardians . Inventory to be filed ..... Accounting of guardian, and proceedings thereon Eeferee's report, and order thereon • Bemoyal of guardian ..... Proceedings in case of deatji of gus\rdiai} . . Compensation of guardian .... Section IV". SAiis of iijeal estate ih behaxp of djfan^S!, When sale will be authorized , . . , Apphcation to the cpurt, ai^d how made . . Where, ^nd how applioE(tion to ^ ©ade Who may be special guardian . . . , Appointment of special guardian Bond of guardian ..... Reference, and proceedings thereon . Eeferee's report . . Order thereupon ..... Agreement of sale, and report of guardian Order of confirmation ..... Conveyance by special guardian . . . Efiect of the conveyance .... How mortgages to be given ... The proceeds of the sale .... Bights of infants in proceeds ... Piling inventory, and annual account . Claim of dower; how satisfied, &c. . . Costs of the proceedings . . . , Pinal report, and order thereon . Papers to be filed ..... Section V. Pbooeedinss to compel speoifio pebfokmanob bt tbaot of anoestoe. In what cases ..... • To what court application to be made How application is made .... Guardian ad litem ..... Eeference, and proceedings thereon . . Order directing performance of contract . ■ . The conveyance ..... Costs ....... Pinal report, and order of confirmation , Appeals ...... Section VI. Peoceedings to compel infant tevste^S to contbt. In what cases ..... FASB • • . 431 • • 433 , , . 434 , 435 , , . 436 GUABDIANS. . . 435 , , . 440 « ■ 441 , . 443 • • 443 , , . 445 • 415 , 447 , , 449 , , . 450 , , 450 , , . 451 . . 452 ■ • . 453 • 454 , . 454 • • 456 • . 455 • • 455 • . 456 , , 456 , , . 45T . 469 « . • . 460 . 461 • , . 461 . 462 , . 462 INFANT OF CON- , ^ 463 . . . 464 . 464 . , 466 • . 466 . * .•46t • . 467 . . . 468 . 469 nnpT . 469 V Jjix. 470 TABLE OF CONTENTa XIX Application, where made, &o. Guardian ad litem . . . Eeferenee and proceedings thereon Effect of conTeyance , . Costs .... Appeal from order PAOB . 410 410 . 410 , 411 . 411 411 CHAPTER XIV. INSOLVENT DEBTORS. The subject generally ....,.,. 413 Section I. AtTACHMEOTS AflAINST ABSCOHDINa BEBT0B8, EXO. In what cases property may he attached . . . , . 415 Where appUcatiou to be made . . . . .415 By whom application to he made .... .416 How application made, and affidavit required .... 416 Notice and warrant ....... 418 Publication of notice . . . . . . . .418 Effect of publication of notice . . . , . .419' Duty of sheriff on execution of warrant .... .480- Perishable goods may be sold ...... 480 Proceedings, if property is claimed by third person .... 481 Attachment of goods on board of vessel . ' . . . . 482- Attachments against domestic vessels, and proceedings thereon . . 482 Attachments against foreign vessels, and proceedings thereon . . 484 Defense in actions brought by debtors ..... 485 Other persons may become attaching creditors .... 486 Subsequent attachments deemed part of first proceedings . . .486 Notice of first warrant, and proceedings thereon, .... 481 Petition by debtor for a hearing and trial, and- proceedings thereon . .481 Petition by third persons claiming the property, and proceedings thereon 489 Jury trial, and proceedings on certain bonds .... 489 When the petition and bond to stay proceedings .... 490 Application to discharge the warrant, and proceedings thereon . . 490 Trustees, their appointment, &c. . . . . . .491 Effect of appointment of trustees, &o. . . . . .492 Effect of death or insanity of debtor ...... 492 Sheriff'^ return, Ac. ....... 493 Affidavits, &c., to be filed ....... 493 Report of officer, and effect thereof ..... 493 Motion to vacate the proceedings ...... 494 Certiorari to remove proceedings . . . i . . . 494 Sureties, their justification, &e. ...... 495 When seizures under the statute to supersede other seizures . . 495 Section II. Pkooeedinos m cases op debtors coNriKED foe obimes. When and by whom application to be made ..... 496 To whom application to be made . . . . . .496 XX TABLE OF CONTENTS . Trustees to be appointed .... Effect of appointment ..... Duties of trustees ..... General provisions ..... Beotion III. Peoceeddtgs ukdee the two-thikd act. Who may be disoliarged . . . . Petition, and by whom signed .... Petitioning creditors ..... Affidavits of petitioning creditors .... Insolvent's affidavit ' . Insolvent's schedule ..... Officers to whom applications may be made . Order to show cause, and for publication of notice Publication and service of notice Hearing before the officer, and proceedings thereon Witnesses, and evidence on the hearing Effect of changes in insolvent's property after his petition is When insolvent debarred from being discharged Assignment, and to whom made .... Effect of the assignment .... Discharge, and when granted .... Recording of discharge and other papers Effect of the discharge ..... Effect of the discharge upon the creditor's remedy . Effect of the discharge as evidence Pleading the discharge .... Discharge when void ..... Amending proceedings and waiver of defects Certiorari to remove proceedings .... Review in Court of Appeals .... General provisions ..... Section IV. Assignments by debtors mpuisoNED on execution. In what oases ...... Petition and affidavit ..... Officers to whom application to be made Order for creditors to appear .... Notice to be published and served Hearing, and proceedings thereon ... Debtor to make an account, inventory, and assignment Proceedings upon rendering the account, &o. Discharge, when granted ; and its effect When officer to make assignment of debtor's property . Effect of such assignment .... When debtor precluded from obtaining discharge Proceedings, if the debtor and his creditors petition . Property assigned by officer to vest in assignees . General provisions ..... Section T. Rbuef op bebtors from t.tabilitt to impbisoiiment, Petition of debtor ...... presented ETO. pAoa . 496 497 . 498 498 . 499 50Q . 501 504 . 506 506 . 508 509 . 510 512 . 515 516 . 511 518 . 520 521 . 522 522 . 527 528 . 529 530 . 532 533 . 534 534 , 53i 535 . 535 535 536 536 537 638 638 639 539 539 540 540 540 641 TABLE OP CONTENTS. XXI Schedule and affidavit .... Order to show cause .... Notice to he puhlished .... Demand of jury, and proceedings thereupon Assignment, when and how executed When discharge granted; its terms and effect Discharge, when void .... General provisions .... Section TI. Discharge of debtoes from impeisokment. In what cases debtor may apply for discharge Where application to be made Petition and inventory ; what to contain Notice, &e., to be served . ■ . . Affidavit to be made ..... AppUcation to the court, and proceedings thereon Assignment, and discharge of debtor . Effect of discharge .... Eights and duties of assignees Debtor may be required to apply for discharge . Consequences of his neglect or omission to do so PAGB . 541 542 . 542 542 543 543 . 544- 644 . 545 54'7 . 541 549 . 549 549 . 550 551 . 551 552 . 552 When creditor may discharge his debtor, without discharging the judgment 553 General provisions .... Section Vn. General provisions applicable to the preceding sections. OfBcers to whom application to be made .... Proceedings, how continued, if officer dies Corporations and partners, as creditors Non-resident creditors .... Discharge void in cases of collusion . Debts purchased for less than their nominal amount When securities must be relinquished by creditors . Penalty for false swearing Proceedings on the hearing of any petition . Witnesses, &c. . OfBcers or court to keep minutes Penalty on jurors ..... Eees of sheriff, constable, and juror ...... Discharge, assignment, and other papers, to be filed and recorded Effect of the discharge, assignment, and other papers as evidence . Proceedings if debtor is arrested after discharge .... Proceedings if assignees refuse to sign certificate .... What debts are not affected by discharge .... Bection Yin. The powers, duties, and obligations of trustees and assign- ees op insolvent dbbtoes. Who are trustees ; their general powers, &o. .... Trustees to make path ....... When trustees deemed vested with property . -. . . Powers of trustees ....... Notice to be given, and contents thereof ..... Trustees may sue, notwithstanding notice .... 553 554 654 655 555 656 556 567 558 558 658 558 559 559 559 559 560 561 561 552 663 564 564 56G 567 XXll TABLE OF CONTENTS. FAGS Penalty for concealing property . , > . . . 567 Examination of debtor, and proceedings thereon . . . 507 Premium for property discovered ...... 569 References of controversies, and proceedings thereon . . . 569 Duty of the trustees in respect to the settlement and distribution of the estate ......... 571 AUoTvauoe to certain debtors . ... . . . 575 . Trustees to render account ....... 576 Trustees subject to the order of the court .... 576 Certiorari may issue ........ 576 Proceedings if trustee die, or is removed, or is absent, or removes &om the State ......... 577 How trustees may renounce their trust, and proceedings therein . . 578 CHAPTER XV. ACTIONS AGAINST NEXT OP KIN, HEIRS, DBYISEES, &0. Section I. Actions by and against legatees and next of kin, and HEIRS AND DEVISEES. The subject generally .... I. Actions iy legatees cmd nsct of kin. When legatees and next of kin may sue Bond to be given ..... Suits by minors .... Action by legatee to be referred . Proceedings upon the reference . , Costs and how to be paid .... II. Actions against next of kin. Against whom the action may be brought Recovery in the action, and how apportioned Form of judgment, and execution How defendants exonerated from judgment Action between next of kin for contribution . III. Actions against legatees. By and against whom the action may be brought Requisites to recovery Apportionment of recovery, and costs Form of judgment and execution flow defendants exonerated from judgment Contribution by legatees IV. Actions against heirs. Liability of heirs and devisees Within what time suit can be brought Who to be joined as defendants . What the creditor must show to entitle him to reoover When proceedings will be stayed . . ' AGAINST 581 , 582 682 . 583 583 , 583 683 , 58S .585 686 586 586 587 587 588 588 588 589 5S0 592 592 593 594 TABLE OF CONTENTS. XXlU Action not to be delayed by reason of infancy of heirs Complaint ; what to contain . . i . . , Proceedings on the trial of the action ..... Judgment, execution, and levy ...... Proceedings if heir has aliened the lands ..... V. AcUfms against deoisees. Liability of devisees, ertent thereof, and what must be shown to charge them . . . . Alienation of lands by devisee ...... Actions against devisees by after-born children, aid by witnesses to wills VL General provisions appliodble to actions against next of kin, legatees, lievfs, amd devisees. Order of preference in the payment of debts .... Defenses by next of kin, legatees, heirs, and devisees Recovery of proportion ....'.. Evidence of payments ....... Section II. Pbooeedings asainst joint debtors, personal repkeSbntatives, HEIRS, DEVISEES, LEOATBES, AND TENANTS. Proceedings against joint debtors . Proceedings against heirs, devisees, legatees, or tenants Who shoald be made parties Within what time proceedings may be commenced . Summons and affidavit .... Answer of defendant ..... Subsequent pleadings, Sec, Same as in actions Trial of issue, and judgment .... Execution ...... Costs of the proceeding .... PAGB 695 595 695 596 69S 600 601 601 602 602 603 603 605 606 606 607 607 608 609 610 610 610 CHAPTER XVI. V LIEN LAWS IN EAVOE OF MECHANICS AND OTHERS. Section I. Libit law belatin9 to the oitt or New York. The subject generally I. Proceedings to create a lien. In what cases a lien may be created . By whom it may be created Against whom the lien may be created Extent of owner's liability . Extent of the lien . . . How a lien is created Requisites of the notice of lien Duty of the county clerk . Effect of the lien The priority of different lieiM How long liens to continue . . 611 . 613 . , , 617 , . 618 • • 620 . 624 ; ^ , 625 , . 626 • • 628 . 028 • • 629 . 630 XXIV TABLE OF CONTENTS. Discharge of lien ...... II. Proceedings to enforce orforedose a lien,. How proceedings commenced Who may commence the proceeding Against whom the proceeding mav be instituted Within what time the proceedings to be commenced . The courts having jurisdiction Notice of foreclosure, and service thereof BUI of particulars ..... Proceedings in case of owner's default Appearance by owner, and service of bill of particulars Proceedings on issue joined between the parties Pleadings ...... Parties to the action ..... Amendments ; waiver of defects, &c. . Notice of trial, and other proceedings Trial and proceedings thereon 1. What the claimant must show 2. What may be shown in defense Witnesses, &c. . Judgment ...... Effect of judgment and sale .... Execution ...... Sale of the premises, &o. . Redemption from sale on execution . Costs of the action ..... Appeals, and staying proceedings on appeal . Section II. Lien law — senbeal act. I. Proceedings to create a Men. In what cases a lien may be created By whom it may be created .... Against whom it may be created .... Extent of owner's liability .... Extent of the lien ...... How hen created ..... Requisites of the notice of lieu .... Duty of the town clerk .... II. Proceedings m comis of record to enforce liens. Action to be commenced ..... Within what time the action to he commenced The courts, and their jurisdiction .... Parties to the proceeding .... The plaintiff''s notice and bill of particulars How served ...... Entry to be made, in lieu docket, of commencement of aetioa Proceedings in case of owner's default Defendant's answer and notice of set-off . Amendments ...... Issue, how formed ..... rAOB 630 . 632 632 . 633 633 : 633 633 . 635 635 . 637 63'7 . 639 640 . 642 643 . 643 644 . 646 649 . 649 651 . 652 653 . 653 654 . 656 658 659 659 659 660 661 661 663 664 664 665 666 666 666 667 66T 668 668 668 TABLE OF CONTENTS. XXV Notice of trial, and other proceedings Trial and proceedings thereon 1. "What the claimant must show 2. What the owner may show in defense ' . " Witnesses, &o. .... Judgment ...... Transcript of judgment, &c. . Executions ..... Costs and disbursements Appeals . . . I . in. Proceedings injvMice^ courts to enforce liens. Action to be commenced Service of notice and bill of particulars . Commencement of action to be noted in lien docket Proceedings, if owner does not appear Issue and trial in justices' courts Costs in justices' courts .... Appeals from judgments therein IT. MisceUane(fiis proceedings. The owner may require claims to be presented . The owner may require hens to be enforced . How long lien to continue Order in which liens are to be paid . How liens discharged .... Section III. Lien law against ships and vessels. I. Proceedings to create a lien. In what cases a lien may be created . Extent of the lien, and when it ceases Specifications of lien ; when and where to be filed n. Proceedings to enforce the lien. Application for warrant .... Undertaking to be given Warrant and proceedings thereon . Notice to be published When and how warrant will be discharged Action upon the bond given on the d&charge of the warrant Order directing sale of property, &c. . Sale of property ; notice of sale, &c. . Sheriff's return ...... Owner, &c., may interpose a defense, and proceedings thereon Trial of the issue, and subsequent proceedings . Proceeds of sale, and distribution thereof in. Miscellaneous. When hen may be discharged Assignment of hen .... Costs, fees of sheriff, &c. . Proceedings may be continued before other judges Repeal of other statutes .... Debts contracted before the act, not affected . FAGIS . 669 669 . 669 670 - 670 670 . 671 671 . 672 673 . 673 674 . 674 674 . 675 675 , 676 676 . 677 677 678 678 , 680 683 , 685 687 , 688 688 , 689 689 691 692 693 693 694 695 695 697 698 698 699 699 700 XXATl TABLE OF CONTENTS. CHAPTER XVII. LIMITED PAETNERSHIPS AND COMPROMISES BT JOINT DEBTORS. Section L Limited ok special pabtneeships. The subject generally For what purposes formed, &c. . ' What the partnership to consist of . , Firm or partnership name . . ' . Proceedings for the formation of the partnership. 1. Certificate, and contents thereof . 2. Affidavit of the general partner 3. Terms of partnership to be pubhshed 4. "When partnership deemed to be formed Business of the firm, by whom to be transacted Liability of general partners . Liability of special partners In whose name suits to be brought . Withdrawal of capital by special partner . When assignments, &c., preferring creditors, are void When special partner may, or may not, claim as creditor Insolvency of the firm, and effect thereof Dissolution of partnership, and the effect thereof Renewal or continuance of the partnership . Section II. COMPEOMISES BT PABTNBKS AND JOINT DEBTORS. In what cases ...... Memorandum in writing exonerating partner orjoint debtor Discharge of judgments of record Effect of the compromise ..... Discharge of one joint debtor under the insolvent law, and effect thereof PAG» 701 . 102 102 . 102 704 . 705 706 . 708 708 . 709 709 . 711 712 . 713 715 . 716 717 . 720 721 , 721 722 722 7?3 THE LAW AND PRACTICE SPECIAL PROCEEDINGS, SPECIAL OASES. CHAPTER I. ADMEASUREMENT OF DOWEE. {a) If dower is not assigned to the widow within forty days after the decease of her husband, she is authorized to proceed by peti- tion for the admeasurement thereof under the statute. 2 Hev. Stat. 488, sec. 1. She is also entitled to proceed for that purpose, by summons and complaint, under the Code of Procedure. The complaint, in such case, is regarded as a substitute for the pro- ceeding by petition, or for the former bill in equity. 2 /Sand. S. a E. 711, 715 ; 4 Paige, 98. The usual and more expeditious course is, to proceed by peti- tion under the statutory provisions here considered. The proceedings under the statute are no evidence of title, nor of anything more than that the part assigned belongs to the widow, after a title is shown to the whole. 6 Oowen, 168 ; Id. 299 ; 6 Id. 316 ; 17 Johns. 123 ; 12 Wend. 137. The widow may proceed, in the first instance, to establish her title by action, and obtain an admeasurement of her dower in the same proeeed- (a) For the law on the subject of dower, in general, see 1 Rem. Siat. T40, sees. 1 to 25 ; Laws of 1845, p. 94 ; Bev. Notes, 3 Reo. Stat. 2d ed. 596 ; 4 Eemfs Com. 36 to 12. 1 m. Com. 129. Vol. I.— 1 2 ADMEASUREMENT OF DOWEE. [CH. I. ing, 2 Eev. Stat. 303 ; Ih. 311, sec. 55, post ; or she may obtain an admeasurement of such dower in the usual method under the statute, and afterwards commence her action to recover the pos- session of the part assigned to her. Ih. 491, sec. \%,post. But she cannot enter for her dower until it is assigned ; nor can she alien it, so as to enable the grantee to sue for it in his own name, 20 Johns. 411 ; 17 Id. 167 ; 13 Wend. 524 ; though, it seems, where she is in possession, or is entitled to an assign- ment of dower immediately, her interest may be reached upon a creditor's bill, and applied to the satisfaction of a judgment against her. 4 Paige, 448. She has no estate, however, in the lands, until assignment. Her right, until then, is a right resting in action only. 2 Cowen, 638 ; 1 Barb. S. C. R. 500; 3 Id. 319 ; 2 Gomg. 245. And after the expiration of her quarantine, the heir may put her out of possession, and drive her to her suit for her dower. Id. Hid.; 7 Johns. 247. How, and to what court, the widow to a/pply.'\ The statute pro- vides that any widow who shall not have had her dower assigned to her within forty days after the decease of her husband, may apply, by petition, for the admeasurement of her dower, to the Supreme Court ; or to the County Court of the county where the lands are situated ; or to the surrogate of the same county ; or, in the city of New York, to the Court of Common Pleas of that city, where the lands are situated therein. 2 Rev. Stat. 488, sec. 1; LoAJOs of 1847, p. 328, sec. 29; Code of Pro.- sec. 30, suh. 5; Laws of 1854, p. 464, sec. 6. And, in the city of Buffalo, the application may also be made to the Superior Court of that city, when the premises are situated therein. Th. p. 224. The petition should specify the lands to which, the widow claims dower, 2 Pev. Stat. 488, sec. 1 ; and it is not necessary that it should state that her husband had been dead forty days when it was presented. 7 Cowen, 356. For form of petition, see Appendix, No. 1. Service of petition amd notice.] A copy of the petition, with notice 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 her husband ; or if they are not the owners of the lands subject to dower, then upon the owners of such lands claiming & CH. I.] ADMEASUEEMENT OF DOWER. 3 freehold estate therein ; or their guardians, when any such heirs or owners are minors. 2 Hev. Stat. 488, sec. 2. And, unless such notice is given, the proceedings will be set aside. See 6 Johns. 281 ; 15 Id. 533. For form of notice, see Appendix, No. 2. But persons in the possession of the premises, as tenants for one or more years, are not entitled to notice. It is necessary to give notice only to the owners of the freehold. 12 Wend. 137, 138. And the statute requiring notice of the proceedings to be given to the owners of the land, is not complied with by merely giving notice to the tenant or person in possession. 39 Barh. 167. Where, in proceedings before a surrogate, due notice of the application was given to the tenant, who did not attend before the surrogate, and the latter appointed three commissioners, ac- cording to the, statute, but on ascertaining that one of them could not serve by reason of ill health, substituted another in his place ; it appearing from the surrogate's return that both the first ap- pointment and the substitution took place on the day for which the application was noticed, — it was held that the whole should be regarded as one continuous act, and the substitution, there- fore, regular, without any additional notice. 2 Hill, 543. The notice may be served personally, on any party of full age ; or upon the guardians of minors ; or by leaving the same with any person of proper age, at the last residence of such party or guardian, in case of his temporary absence ; and if any such heir or owner be a resident out of this State, the service of such notice may be upon the tenant in actual occupation of the lands; or, if there be no tenant, by publishing the same for three weeks suc- cessively, in some newspaper printed in the county where such lands are situated. 2 Bev. Stat. 488, sec. 3. And where the owners, or any of them, are minors, having no guardian, and a guardian ad litem is appointed for the pur- pose of appearing and taking care of their interests, the notice of the application must be served upon such guardian ad litem. Ih. sees. 4, 5. Appointment of guardian for imfant owners.'] Where the heirs or owners are minors, and have no guardian, the court or surrogate, on application of the widow, will appoint some dis- creet and substantial freeholder a guardian of such infants, for the sole purpose of appearing for, and taking care of, the interest 4 ADMEASUEEMENT OF DOWEK. [CH. L of such infants in the proceedings. 2 Bev. Stat. 488, sec. 4. For forms of petition for appointment of guardian, and order there- upon, see Appendix, Nos. 5 and 6. And notice of the application for the admeasurement of dower, and all notices in the subsequent proceedings, must be served on such guardian, whether the infant resides within this State or not. 2 Eev. Stat. 488, sec. 5. g Proceedings hy heirs, (&c.,for admeasurement.'] The statute also provides, that after the expiration of forty days from the death of any husband, his heirs, or any of them, or the owners of any land subject to dower, claiming a freehold estate therein, or the guardian of any such heirs or owners, may, by notice in writing, require the widow of such husband to make demand of her dower within ninety days after the service of such notice, of the lands of her deceased husband, or of such part thereof as shall be specified in such notice. 2 Hev. Stat. 489, sec. 6. For form, see Appendix, No. 3. If such widow does not make her demand of dower, within the time specified in such notice, by commencing a suit, or by an application for admeasurement as prescribed by the statute ; or if she does not make such demand within one year after her hus- band's death, although no notice to that effect shall have been given ; the heirs of the husband of such widow, or any of them, or the owners of any lands subject to dower, claiming a freehold interest therein, or the guardian of any such heirs or owners, may apply by petition to the Supreme Court, or to the County Court of the county where the lands are situated, or to the sur- rogate of the same county, or, in the city of !N"ew York, to the Court of Common Pleas of that city, where the lands are situated therein, or to the Superior Court of the city of Buffalo, where the premises are situated within that city, for the admeasurement of the said widow's dower of the lands of her husband, or of such part thereof as shall be specified in the said petition. 2 Rev. Stat. 489, sec. 7 ; Laws of 1847, p. 328, sec. 29 ; Ood^ of Pro., % 30 ; Laws of 1854,^. 464 ; Ih.p. 224, sec. 9. A copy of the petition, with notice of the time and place of presenting the same, must be served personally on the widow, twenty days previous to its presentation. 2 Pm. Stat. 489, sec. 8. For forms, see Appendix, No. 4. CH. I.J ADMEASUREMENT OF DOWER. 5 Order that adm£asurew,ent he made.] Upon the application being made, eitlier by a widow, or by any beir or owner, or by the guardian of such heir or owner (a), the coiirt or surrogate tc whom the same shall be made, may, upon hearing the parties, order that admeasurement be made of such widow's dower of all the lands of her husband, or of such part thereof as shall be spe- cified in the application. 2 Rev. Stat. 489, sec. 9. The order directing admeasurement to be made, is usually embodied in the order for the appointment of commissioners. For form, see Appendix, No. 7. Order appointing commissioners and 'proceedings thereon.] The court or surrogate, on the application, is required to ap- point three reputable and disinterested freeholders, commission- ers, for the pui-pose of making the admeasurement, by an order specifying the lands of which dower is to be admeasured and the time at which the commissioners shall report. 2 Rev. Stat. 489, sec. 10. For form, see Appendix, No. Y. The order specifying the time at which the report shall be made, is in the nature of an adjournment or continuance of the proceed- ings ; and, therefore, upon the coming in of the commissioners' re- port, at the time specified, it may be confirmed, on motion of either party, without notice to the other for that purpose. 2 Hill, 543. In the proceedings for the appointment of commissioners, an inquiry whether a settlement has been made by the husband in lieu of dower, cannot be gone into. If there is a defense to her claim, it must be set up in the action which she brings to recover the part assigned to her. 4 Wend. 630 ; 4 Brad. R. 15. No appeal lies from the order of the court or surrogate, ap- pointing commissioners; but only from the order confirming their report. See 2 Rev. Stat. 491, sec. 19 ; lb. 611, sec. 118 ; ' and 10 Johns. R. 368. Oath^qf commissioners.] The commissioners appointed, be- (a) Only the persona here named are entitled to apply for the admeasurement of dower. And, therefore, where the purchaser of a widow's right of dower had the dower admeasured and assigned to him, it was held that the proceeding was void, and conferred no title under the statute, even though the heir or his guardian con- sented to it. 20 John.1. ill ; and see 2 Cow. 63S; 11 Johns. 161; 13 Wind. 524; 1 Barb. S. C. R. 500 ; 3 Id. 319, 6 ADMEASUREMENT OF DOWER. [CH. I. fore entering upon their duties, must be sworn before tbe surrogate who appointed them, or before some officer authorized to take affidavits, that they will faithfully, honestly, and impartially dis- charge the duty and execute the trust reposed in them by such appointment. 2 Rev. Stat. 489, seo. 11. And it seems the oath may be administered by the attorney conducting the proceed- ings. 4 Wend. 195 ; amd see 9 How. 64, 67. Vacancies, how swpplied, c&c] If the persons appointed commissioners, or either of them, shal! die, resign, or neglect or refuse to serve, others may be appointed in their places, by the court or surrogate who appointed the first commissioners, and shall take the same oath. 2 JRev. Stat. 490, sec. 12 ; lb. sec. 14. If the first appointment was made by a surrogate, the new commissioner may be appointed by his successor in office. 8 Wend. 460. Admeasurement by commissioners.'\ The commissioners, in making admeasurement, must proceed as follows : (a) They must admeasure and lay off, as speedily as possible, the one third part of the lands embraced in the order for their ap- pointment, as the dower of the widow, designating such part with posts, stones, or other permanent monuments. 2 Mev. Stat. 490, seo. 13, sub. 1. They must take into view, in making the admeasurement, any permanent improvements made upon the lands embraced in the order, by any heir, guardian of minors, or other owners, since the death of the husband of such widow, or since the alienation thereof by such husband ; and if practicable, must award such improvements -within that part of the lands not allotted to such widow ; and if not practicable so to award the same, they must make a deduction from the lands allotted to such widow, pro- portionate to the benefit she will derive from such part of the said improvements as shall be included in the portion assigned to her. lb. sub. 2. And to aid them in such admeasurement, they may employ a surveyor with necessary assistants. Tb. sub. 4. In the proceedings for the admeasurement of dower, the com- (o) By a recent amendment of tlie statute, material alterations have been made in the practice on the admeasurement of dowei. Laws of 1869 ch. 433, in Notes at the end of this chapter. CH. I.J ADMEASUREMENT OF DOWER. 7 missioners have no power to decide upon the widow's right in the land. And, therefore, where the order directs them to set off one third of certain premises, they have no right to confine their admeasurement to one sixth, upon the ground that the husband was entitled only to one half of the land. 1 Cowen, 463. JS'or can the commissioners, ia ascertaining the part to be assigned, make any deduction in consequence of any conveyance of land made by the husband to the wife during marriage. 4 Wend. 630. JSTor can they inquire whether a settlement was made by the husband in lieu of dower. lb. The proceeding assumes that the widow is entitled to dower out of the lands in question ; and if there is a defense to her claim, it must be set up when she brings her action to recover the part assigned to her lb. Wtere the lands have been alienated by the husband, the wife, after his death, is entitled to dower only according to the value of the land at the time of the alienation ; and those facts are proper to be shown to the commissioners appointed to make the admeasurement. 10 Wend. 529 ; lb. 480 ; 4. Brad. E. 15 ; and see 2 Johns. 484 ; 13 Id. 179 ; 6 Johns. Ch. E., 258 ; 2 Ed. Ch. R. 577. The dower niust, in general, be assigned by metes and bounds ; yet there are exceptions to this rule, — e. g., where the subject-matter is of such a nature that no division can be made which will give the parties the enjoyment of their respective shares in severalty ; in which cases, it may be so assigned as to give the widow one third of the profits, or the parties may have an alternate occupation of the whole, &c. 2 Eill. 544 ; 39 Barb. 168. And where the premises consisted of a village lot, with a dwelling-house thereon, and the commissioners, among other things, assigned to the widow particular rooms in the house, with the right of using the stairways, halls, &c., so as to afford ingress and egress for the enjoyment of the rooms, — it was held that it was not an assignment to which the tenant could legally object ; though otherwise, it seems as to the. widow. Tb. ; and see 4 Brad. R. 15 ; 39 Barb. 167. The commissioners may also assign to the widow, dower in mines which were opened and worked in the lifetime of her husband ; but not of such as were unopened. And it may be assigned, either collectively with other lands, or separately of 8 ADMEASTTKEMENT OF DOWER. [CH. I. themselves ; and if not practicable to assign it by metes and bounds, a proportion of the profits, or the separate alternate enjoyment of the whole for short proportionate periods, may be assigned. 1 Oowen, 463 {a). For form of order directing com- missioners how to proceed in such case, see Ajppendix, No. 15. Notice of the proceedings of the commissioners should be given to the owners of the premises, or to their guardians, if such owners are minors. See 9 How. 71 ; 15 Johns. R. 537 ; 23 Wend. 632, 633. Report of commissioners.'] The commissioners are required, by the statute, to make a full and ample report of their proceed- ings, with the quantity, courses, and distances of the land ad- measured and allotted by them to the widow, with a description of the posts, stones, and other permanent monuments thereof, and the items of their charges, to the court by which they were appointed, at the time specified in the order for their appoint- ment. 2 Beo. Stat. 490, see. 13, sub. 3. For form, see Appendix, No. 9. The court or surrogate appointing the commissioners, may, upon their application, or that of either party, enlarge the time for making their report; and may, by order, compel such report, or discharge the commissioners neglecting to make the same, and appoint others in their places. 2 Rev. Stat. 490, sec. 14. The report is required to be filed and entered at large in the minutes of the court to which the same shall be made, or in a book to be provided by the surrogate for that purpose, when made to him. Ih. sec. 15. Fees of commissioners, surveyors, cfec] The fees allowed by law to commissioners, are two dollars to each for every day's actual and necessary service. 2 Rev. Stat. 643, sec. 35. And the surveyor, if one is employed, is allowed for actual ser- vice in surveying, laying out, marking, and mapping the premi- ses of which dower is admeasured, two dollars and fifty cents per day; and for each of his necessary chain and flag bearers,' and other necessary assistants, one dollar per day. Ih. sec. 84. (a) It was formerly doubted whether rent out of land could be assigned by the commissioners in lieu of dower. See 2 BiV, 544, 549 ; 3 Edw. Ch. S. 579. But this is now settled affirmatively by statute. Laws of 1869, ch. 433, in the Notes at the end of this chapter. CH. I.] ADMEASUREMENT OE DOWER. 9 Setting aside rejoort, or confirmation, dac.] The court or surro- gate to whom the report is made, may, at the time appointed for receiving the same, or at sucli other time to which the hearing has been adjourned, on good cause shown, set aside the report, and appoint as often as may be necessary, new commissioners, who are required to proceed in the manner above directed. 2 Bev. Stat. 490, sec. 16 ; 7 Oowen, 353. Notice of the motion should be given to the opposite party, ac- companied with copies of the papers upon which the application is founded. See 1 Id. 176. If the report is not set aside, the court or surrogate is required, by order, to confirm the said report and admeasurement. 2 Rev. Stat. 490, sec. 16. For form of order, see Appendix, No. 11. And upon the coming in of the report at the time appointed for receiving the same, it may be confirmed, on motion of either party, without notice to the other for that purpose. 2 Hill, 543. But see form of notice to confirm report, in Appendix, No. 10. Effect of admeasurement.'] The statute provides, that the ad- measurement so made and confirmed, shall, at the expiration of thirty days from the date of such confirmation, unless appealed from, be blading and conclusive, as to the location and extent of the widow's right of dower, on the parties who applied for the same, and on all parties to whom notice shall have been given, as hereinbefore directed. 2 Bev. Stat. 491, sec. 17. But no person will be precluded thereby from controverting the right and title of such widow to the dower so admeasured. Ih. ; and see 4 Brad. B. 15. The proceedings are no evidence of title, nor of anything more than that the part assigned belongs to the widow after a title is shown to the whole. 5 Cow. 168 ; 6 Id. 316 ; 17 Johns. 123 ; 12 Wend. 137. The widow may iring an action to recover possession, (&c.] At the expiration of thirty days from the date of the confirmation of the commissioners report, unless the same be appealed from, the widow may bring an action to recover the possession of the lands so admeasured to her for her dower (in which her right to such dower may be controverted), and upon recovery, may hold the same during her natural life, subject to the payment of all 10 ADMEASUREMENT OF DOWEB. [CH I. taxes and cliarges, accruing tliereop, subsequent to her taking pos- eession. 2 Eev. Stat. 491, sec. 18. (a) The action is commenced by summons, or summons and com- plaint, under the Code of Procedure ; and the general provisions of the Eevised Statutes relating to actions concerning real prop- erty (3 Rev. Stat. 302, c&c), apply to the action, according to the subject-matter of it, and without regard to its form. (6) Code of Pro. %% ^'66,4.71. Appeals.^ It is provided by the statute, that where the com- missioners have been appointed by a county court, or the Court of Common Pleas of tlie city of JSTew York, or by a surrogate ; the widow and any heir or owner of lands affected by the proceed- ing, or the guardian of such heir or owner, may, within thirty days after the order of confirmation of the report of the com- missioners by such court or surrogate, appeal from such order to the Supreme Court, in the manner prescribed by the statute. (a) The widow may bring an action, also, to recover her dower, notwithstanding that it haa not been admeasured. See 2 Rev. Stat. 303 ; Code of Pro. § 455-; 3 Selden, 201, 209. And it is not necessary, in such case, that she should demand her, dower before bringing the action (ib.) ; though if the action is to recover dower, before ad- measurement, of property which has been ahened by the husband, the widow can- not recover costs of the action unless it appear that the dower was demanded and refused before the action was commenced. Code of Pro. § 307. Where the widow recovers in an action for her dower, commenced before admear surement, the statute provides, that instead of a writ of possession being issued, the plaintiff shall proceed to have her dower assigned to her in manner following: 1 Upon the filing of the record of judgment, the court, upon the motion of the plaintiff, shall appoint three reputable and disintefested freeholders, commissioners for the purpose of making admeasurement of the dower of the plaintiff, out of the lands described in the record; and the commissioners so appointed shall proceed In like manner, possess the like powers, and be subject to the like obligations and control, as commissioners appointed pursuant to the statutoijr provisions herein considered. 2. The report of the commissioners may be appealed from by any party to the action, within the same time, and the like proceedings shall be had thereupon as are prescribed by the said statutory provisions. 3. Upon the confirmation of the report of the commissioners, a writ of possession shall be issued to the sheriff of the proper county, describing the premises assigned for the dower, and commanding the sheriff to put the defendant in possession thereof. 2 Eev. Stat. 311, sec. 55. And the costs and expenses incurred in such admeasurement of dower shall be subject to the like provisions herein considered. lb. 312, sec. 56. (J) In respect to staying the issuing of the writ of possession, in such action upon judgment for the widow, and the proceedings in the action and upon appeal therein, see Law» of 1869, ch. 433, in iVbto at the end of this chapter. CH. I.] ADMEASUEEMENT OF DOWER. 11 2 Rev, Stat. 491, sec. 19 ; lb. 611, sec. 118, and see Code of Pro. § 30 ; Laws of 1854, p. 464. Wliere, however, the order of confirmation is made by the Court of Common Pleas of the city of New Tort, the appeal is now to the same court af general term. Laws of 1854, p. 592, in note a at the end of this chapter. The appeal must be filed with the surrogate, or with the clerk of the court granting the order of confirmation. 2 Eev. Stat. 491, see. 20. For form of notice of appeal, see Appendix, No. 12. But the appeal will not be efiectual or valid for any purpose until a bond to the adverse party shall be executed by the appel- lant, and filed with the surrogate or clerk, with security, to be approved by the surrogate or a judge of the court by whicjh such order was made, and to be evidenced by an indorsement on such bond, in the penal sum of one hundred dollars, conditioned for the diligent prosecution of such appeal, and for the payment of all costs that may be adjudged by the appellate court against the appellant ; and no other notice or proceeding will be neces- sary to perfect the appeal. 2 Rev. Stat. 491, see. 20. For form of bond, see Appendix, No. 13. In addition to the appeal authorized by the above provision of the Revised Statutes, an appeal may no doubt also be taken to the general term of the Supreme Court from the order confirm- ing the report of the commissioners, made at a special term of that court. Laws of 1854, p. 592, see. 1 ; and see 2 Kernan, 406; 12 Eow. 97; s. c. 2 All. 368; 10 How. 168. The prac- tice in such case, as well as in cases of appeals from an order of the Court of Common Pleas of the city of New York, is regu- lated in part by the Code of Pro6edure, sections 327, 329, 330, and 332 of which apply to the proceedings on such appeal. Laws of 1854, svpra. (a.) And 60, an appeal lies, also, from the order of confirmation, made by the special term of the Superior Court of the city of Buffalo, to the general term of that court. Laws of 1854, p. 227, sees. 19 and 26 ; Laws of 1857, vol. 1, p. 753. The decision of the general term may be reviewed by the (o) See the act of 1854, and the sections of the code here referred to, in note a at the end of this chapter. 12 ADMEASUREMENT OF DOWEE. [CH. I. Coujt of Appeals ; but such review must be bad by writ of error, under the former practice, the provisions of the code on the subject of appeals to the Court of Appeals not applying to pro- ceedings for the admeasurement of dower. Code, § 471, and see 18 JVew York, 487; 19 Id. 684; 20 Id. 529. Duty of the clerk or surrogate on the appeal.'] The statute makes it the duty of the surrogate or the clerk of the court with whom the appeal and bond is filed, on receiving the amount of his fees for the service, to transcribe the petition, affidavits, notices, orders, reports, and all other proceedings on the applica- tion, together with the appeal, to certify them under his official seal, and to transmit such copies to the appellate court. 2 Hev.' Stat. 491, sec. 21. Sow appeal trought on, and practice therein.] The statute provides that the hearing of the appeal by the Supreme Court shall be brought on by notice, and shall be conducted as other special motions. 2 Hev. Stat. 492, sec. 27. The appeal is heard at the general term. « The notice of hearing, and all other necessary notices in the Supreme Court, may be served on any party, not residing within this State, by leaving the same with the surrogate, or the clerk of the court from whose order the appeal is made, for the use of such party. li. sec. 27. The Supreme Court may, by rule, direct further returns to be made, whenever the same shall be necessary. li. And it is authorized, also, to establish such rules to regulate the practice on the appeal as it may deem expedient. lb. 'Ho rules, however, have been adopted by the Supreme Court under this provision. Proceedings hy the appellate court.] The appellate court is required to proceed to the hearing and determination of the appeal, and to review all the proceedings upon the application, and to do therein what shall be just. 2 Hev. Stat. 491, sec. 22. But only the regularity and fairness of the proceedings will be examined into. 4 Wend. 630. And the court will look only to the papers which have been returned ; and will not permit affidavits to be read on either side which were not received on the argxmient below. See 2 SiU, 543. CH. I.] ADMEASUEEMENT OF DOWEK. 13 In ease tlie order of conflrmation is reversed, the court is required to cause the same to be certified to the surrogate or court making such order, to the end that new commissioners may be appointed, or a new admeasurement may be had, as the Supreme Court shall direct ; or the court may proceed to appoint commissioners to make admeasurement, in the same manner as upon an original application to such court, and the like proceed- ings shall be had thereon. 2 Rev. Stat. 492, sec. 23. For forms of order, see Appendix, Nos. 14 and 15. In case of the affirmance of the order of confirmation, the ap- pellate court is authorized, in its discretion, to award costs to be paid by the appellant, and to be taxed as the court shall direct ; and the original order of confirmation, and the admeasurement confirmed thereby, will' be binding and conclusive, and author ize an action to recover the possession of the lands so admeasured. lb. sec. 24. . Costs of the proceedings.] The statute provides, that all costs and expenses arising on any proceedings on the application for the admeasurement of dower, shall be taxed by the surrogate, or a judge of the court in which the proceeding is had ; and when the application is made in the Supreme Court, and also when made to a surrogate or county court, or the Court of Common Pleas of the city of New York, and no appeal shall be made from the order of confirmation, the costs and expenses shall be paid equally, the one half thereof by the widow, and the other half by the adverse party. 2 Sev. Stat. 492, sec. 25 ; and see sec. 24 svpra. The costs, if the proceedings are in the County Court, or the Surrogate's Court, are to be taxed at the rate allowed for such services in those courts prior to the adoption of the Code, (a), ( Code, sec. 471 ; 1 Brad. B. 37 ; 29 Ba/rb 629) ; but if the proceed- ing is in the Supreme Court or Court of Common Pleas of the city and county of New York, the costs are allowed in the dis- (o) By see. 471 of the Code of Procedure, the second part of the Code is not to affect proceedings for the admeasurement of dower ; except that when in conse- quence of any such proceedings a civil action is brought, the action must be con- ducted in conformity to the Code ; and except, also, that when any particular pro- vision of the Revised Statutes relating to those proceedings is plainly inconsistent with the Code, such provision is to be deemed repealed. 14 APPEALS AND COSTS [CH. I. cretion of the court, and when allowed are to be taxed at tlie rate allowed for similar services in civil actions. Laws of 1854, p. 592, post, note at tlie end of this chapter. If an appeal be taken, the costs must be paid by the party applying for admeasurement. And if, op. such appeal, the ad- measurement be affirmed, the Supreme Court, in awarding costs, will require the party appealing, to pay the one half of such costs and expenses, if he have not before paid the same. 2 Sev. Stat. 492, seo. 26. And in such case, the Supreme Court may also, in its discretion, award costs of the appeal, to be paid by the appel- lant, and to be taxed as the court shall direct. Jb. sec. 24. And such costs will be allowed, if there has been no fault on the part of the respondent. 2 UiU, 544. If the appeal is from the decision of the County Court, or of the surrogate, the costs of the appeal are regulated by the law in existence prior to the adoption of the Code (a). 16 Barrb. 592 ; 29 Id. 629 ; 6 Eow. 318 ; 18 New York, 487 ; 19 Id. 584 ; 20 Id. 529. But in special proceedings, and on appeals therefrom, where the proceeding is pending in the Supreme Court, or the Court of Common Pleas for the city of ISTew York, costs are allowed in the discretion of the court ; and when allowed are to be at the rate allowed for similar services in civil actions. Laws of 1854, (5),_p. 592, see. 3. (o) By seo. 4*71 of the Code of Procedure, it is provided, that the second part of the Code shall not afiect "appeals from surrogates' courts, except that the costs on such appeal shall be regulated and allowed in the manner provided in sec. 318." The " ap- peals from surrogates' courts," here alluded to, as well as the appeals referred to in sec. 318, are appeals to the late Court of Chancery, provided for by the Revised Statutes (2 B«o. Stat. 608, 609), and which were transferred by the judiciary act to the Su- preme Court, and not appeals in cases of admeasurement of dower. See post, note at the end of this chapter. (6) As frequent reference will be made to the act of 1854, in the subsequent chapters of this work, it Is inserted entire at the end of this note ; also the several sections of the Code therein referred to. The practice upon the several subjects of appeals, and of costs, In special pro- ceedings, and of costs on appeals, in special proceedings, will be found to be some- what complicated, if not involved in considerable doubt and uncertainty. Thus, the act of 1854 seems to be confined to special proceedings within the courts therein mentioned, viz., the Supreme Court, and the Superior Court and Court of Common Pleas of the city of New York ; and if so, the practice in the particulars mentioned, in special proceedings in the county courts, and the recorders' and mayors' courts of cities, and other local courts, in oases where those courts have OH. l] in special peoceedikgs. 15 jurisdiction, as well as in similar proceedings before justices of the Supreme Court, and other judges and officers at chambers, is left unprovided for, or to be determined by other or pre-existing statutes. The act of 1854, also, fails to indicate the subjects included in the terms " special proceedings." Does it include proceedings for the admeasurement of dower ? or pro- ceedings upon the entry of judgment on the award of arbitrators 1 or proceedings as for contempts to enforce civil remedies, and the like 7 The courts have not yet de- termined these questions. They have decided, however, that under that act, an appeal hes to the general term from an order directing a mandamus to issue, 19 Ba/ri. 657; and see 2& Sow. 159,167,470; and from an order confirming the report of commissioners of appraisal for lands taken for a railroad, 10 How. 168 ; and for lands taken for a public street, 2 Keman, 406; but see 12 How. 97, s. c. 2 Aii. 368 ; and from an order made at special term upon an apphoation to vacate an assessment in the city of New York, 18 Abb. 356; though not, in such case, if the order is made by a justice out of court, 27 New York, 629; but see 18 Abb. 356, swpra; and from an order made upon the coming in of the report of referees under a reference of the plaintiff's claim against executors, or administrators, without action, pursuant to 2 Eeo. Stat. 88, &c. 14 How. 511. And from the best consideration which can be given to the subject, it is believed that the act applies generally to all the proceedings in- cluded in the terms " special proceedings," as defined by the Code of Procedure ; and that in respect to costs, as well as appeals, it is confined to proceedings in the courts mentioned in the act, notwithstanding the general language of the second and third sections. By the Code of Procedure, remedies in courts of justice are divided into " actions" and " special proceedings." Code, sec. 1. An "action" is defined to be an ordinary proceeding in a court of justice, by which a party prosecutes another for the enforce- ment or protection of a right, the redress or prevention of a wrong, or the punish- ment of a public offense. lb. sec. 2. Every other remedy is a " special proceeding." lb. sec. 3. Thus an apphcation by petition to compel a specific performance by infant heirs of a contract for the sale of land, made by the ancestor, is a special proceeding, 1 Ker- nan 52 ; and so, of an application for the appointment of commissioners to appraise- lands, Id. Ill; and an application m proceedings to assess damages on the laying out of a plank road, under chapter 210 of the Laws of 1847, 3 Code R. 148 ; and a proceeding for a mandamus, 19 Ba/rb. 657 ; but see 28 How. 159, 167, 470 ; and pro- ceedings against a party as for contempt to enforce a civil remedy, 9 How. 304, s. c. 3 Duer, 616 ; 15 Abb. 308, note; and an application for admission to practice as an attorne'y and counselor at law, 22 New York, 67 ; and the hke, 7 How. 157 ; 20 Id. 307; 27 /d. 160; 10 /. 645 ; 20 Id. 488 ; Cow. and HilVs Notes to Phil. Eo. 1037 ; Cold, on Arb. 1, 2. The prohibition of the statute against the submission to arbi- tration of claims to an estate in lands, applies only where the controversy relates to the legal title, and not where the equitable title only is in dispute. A party who seeks the specific perform- ance of an agreement to convey lands, or damages in lieu there- of, does not make a claim to an estate in fee, within the meaning of the statute ; he is merely seeking the performance of an agree- ment, or a compensation if such agreement cannot be performed. And, therefore, where a suit was pending, and the relief sought was a specific peijformance in respect to lands of which the title was admitted to be in the defendant, or damages, it was held that the matters in issue in such suit were properly submitted to an arbitrator, and that his award was binding. 15 Barb. 644, aff. 4 Kernan, 32. "The claim to an estate of any particular description in lands," says T. A. Johnson, J., " is a claim that such estate is in the claimant, and the decision upon it would necessarily determine whether the estate was in the claimant or not. The terms, estate in fee, or for life, import legal estates only. They have a precise and definite legal signification, to which they are to be confined in giving construction to this statute. This was the kind of claim, the submission of which was intended to be forbidden." 4 Kernan, 39, supra. A religious corporation, not having the power to sell its real estate without the consent of the court, cannot submit to an ar- bitrator the question whether such real estate shall be sold ; and where, in such case, an arbitrator was chosen and decided that the property should be sold, it was held that his award was not binding upon any one, and that it conferred no authority to make the sale. 23 Barl. 32Y; s. c. 4 Aih. 182. 'Nov will corporators be bound by the submission to an arbitrator, of the question who are the legally elected trustees of the corporation ; and an award under such a submission, cannot legally determine that question. Jd. Hid. A single item of a long account may be submitted to arbitra- tion, and the award, if regular, will be valid as to the subject submitted. 1 Wend. 326. But the reference of a collateral fact, or of a particular question, forming only a link in the chain of CH, ilJ arbitbations. 25 evidence, is not a proper subject of submission to arbitration. 5 Id. 522, noU; 9 Id. 661. And an agreement by wbicli tbe members of an association (e. g. — a Lodge of the Independent Order of Odd Fellows), un- dertake to confer judicial powers, in respect to the property in which they have a common interest, upon a body of men or officers, to be from time to time selected out of tho association at large, as a tribunal having general authority to adjudicate upon alleged violations of the rules of the association, and to decree a forfeit- ure of the rights to such property, of the parties adjudged to have been guilty of such violation, is void. And the courts will not aid in enforcing the judgment of a tribunal sought to be created by private compact, except in cases of a submission to arbitration of specific matters of controversy. 16 New York, 112. TFAo mwy submit to ariitration.] All persons, except infants and married women, and persons of unsound mind, may enter into an agreement to submit to arbitration. 2 Bev. Stat. 541, sec. 1 ; 6 Wend. 20. And see as to who are the proper parties to a submfesion at the common law, Gald. on Arb. 7 to 16. Generally, where there is a capacity to contract, with a liability to pay, there is a power to arbitrate. 1 Barb. S. G. R. 584. A corporation, therefore, may legally submit a question to arbitra- tion, lb. 590, and see 1 Hilt. 469. And so, the guardian of an infant may submit a claim to arbi- trators on behalf of his ward ; and a performance of the award will be a bar to a suit by the infant when of age for the same matter. 3 Cai. R. 253. Where a claim was submitted to arbi- tration by an infant, and an award afterwards made in his favor, and the money awarded to him, paid to his guardian, his settle- ment with the guardian in relation to the claim, on his attaining his majority, was held to be an affirmance of the award, and a bar of the claim. 4 Setden, 231. And the omission, in that case, to enforce the original claim for two years after the infant's arri- val at full age, was held to be an acquiescence in the submission and award. Tb. An attorney, it seems, has authority, as such, to submit a matter to arbitration, for his client. See Cow. & HilVs notes to Phil. Ev. 1034. And if this were not so, yet the objection would be waived by the client's personally participating in the 26 AEBITEATIONS. [CH. II. proceedings upon the hearing before the arbitrators. 2 Hill, 271. Where the submission is entered into by an agent or attor- ney, it should be in the name of the principal ; otherwise the agent or attorney would be personally liable. 5 Hill, 419. And so, also, a person would be liable if he enter into a submission on behalf of himself and others, but without their authority. Tb. But the principal may ratify or adopt the acts of his agent. Thus, where an agent without authority submits to arbitration matters between his principal and another ; and after an award is made in favor of the agent, the principal takes an assignment of it, and then assigns it to a stranger, this is an adoption and rati- fication of the acts of the agent, and will bind the principal, 37 Barh. 251. One of several partners has no authority, without the as- sent of his co-partners, to refer to arbitration any partnership interest or controversy, 13 Barb. 660 ; and this, too, whether the submission is by simple agreement, or by speciality. Ih. And where, in such case, a submission was entered into by one of the partners, in the firm name, without the consent of the co- partners, the submission was held to be valid as to him, but void as to the co-partners. li. / and see 1 Wend. 326 ; 3 Kent^a Com. 49 ; 15 Barb. 524. The arbitrrators and um/pire.'] The parties to the contro- versy may select such persons as arbitrators, as they may think proper. They, alone, are to judge of the fitness and competency of those to whom is delegated the authority to determine the matters in dispute. And, therefore, the submission would be valid, even though the arbitrators selected are persons whose want of capacity or defect of character is notorious. Cold, on Arb. 37 ; Boll. Arbit. A ; and though they should be interested in the result of the controversy, or closely connected with one of the parties. lb. Though if these objections to the arbitrators were unknown to the parties at the time of their appointment or such interest or relationship, or other incompetency arose or was discovered, subsequently, it would be different, and relief would no doubt be afforded to the party injured. lb. ; and see 1 Barb. 8. O. E. 336 ; 2 Vern. 251. Where arbitrators have made an award which is void a CH. II.] AEBITBATIONS. 27 party has tlie right to consider the power conferred upon them as virtually annulled, and to call for the selection of new arbi- trators. He is not bound to renew the investigation before arbi- trators who have already formed and expressed an opinion. 1 Barb. 8. a B. 326, 336. The arbitrators will not be permitted to contradict their award, 3 Paige, 124 ; 12 Wend. 'iiVi ; nor to give evidence tend- ing to impeach it ; 1 Barb. S. 0. R. 326 ; 20 Id. 482 ; though their testimony may be received, when fraud is not alleged, to show that they did not take a particular subject matter into con- sideration, 1 Barb, sujpra, and that matters were included in the award which were not embraced in the submission. 20 Id. 410 ; and see 2 Bosw. 116. But the rule that arbitrators are not per- mitted to give evidence to impeach or contradict their award, does not apply to arbitrators whose powers ha^'e been terminated by the appointment of an umpire, by whom the award is made, 1 Barb, supra ; 11 Abb. 370. Where matters in difference are referred to more than one arbitrator, it is usual to provide in the submission that some other person shall ultimately decide upon them, in case the arbi- trators should be unable to agree. Oald. mi Arb. 38. Such person is called an umjpire ; and he may be appointed immedi- ately by the arbitrators, without waiting until a disagreement has arisen between them. 1 Hill, 489 ; 1 Barb. S. C. B. 325 ; ^ Johns. 5Y; 17 7^.405. The appointment of the umpire should be in writing, espe- cially if the submission is under the statute ; 23 Wend. 628 ; the most usual way is by an endorsement made by the arbitrators upon the instrument of submission. Cald. on Arb. 42. But if the arbitrators and umpire sit together and hear the parties and their witnesses, and all unite in making the award, the award is suflBcient evidence of the appointment, unless the submission re- quires the appointment to be made previous to ente.-ing upon the hearing. 23 Wend. 631, ^e/- Walworth, Ch. Where the submission is at the common law, and by parol, the appointment of the umpire may also be by parol. lb. 628. The authority of the. arbitrators ceases on the making and de- livery of the award, 4 Com^. 567 ; and also on their failure to agree, and the appointment of an umpire. 1 Barb. S. C. R. 325; 11 Abb. 370; Cold, on Arb. 38, 43. And if, after the 28 ARBITRATIONS. [CH. II. appointment of an tunpire, the arbitrators join witli hina in mak ing the award, this will not vitiate it. The award, in such case, is to be regarded as the sole award of the umpire, and the arbi- trators' signatures may be treated as surplusage. 1 Mill, 489 ; 1 Barb. S. O. R. 325 ; 4 Duer, 325. And so, authority may be given to the arbitrators in case of their disagreement, to call in a third person as arbitrator to sit with them, and hear and determine the matters in controversy. In such case, the person so called in is not an umpire, but only an arbitrator, and the proceedings thenceforth are to be con- ducted the same, in all respects, as if he had been appointed in the first instance, with the other arbitrators. 4 Duer, 318. The submission.] The submission is the authority given to the arbitrators, by the parties, empowering them to inquire into the matters in controversy, and to determine the same. Where, the submission is in writing, it is embodied in the form of a mu- tual agreement between the parties, or in the condition of a bond to be executed by one to the other. For forms of each, see Appendix, Nos. 16 to 20. The statute requires the submission to be in writing. 2 liev. Stat. 541, sec. 1. But this is not required, at the common law, except where the controversy is in relation to real estate, or to some matter as to which it is incompetent for the parties to make a valid and binding agreement by parol. 2 Barh. Ch. R. 430; 2 Hill, 272, note ; Billing's Law of Awards, 9 ; Kyd on Awards, 1 ; Oowen and HilPs notes to Phil. Ev. 1026. The statute has not changed the law in relation to submitting matters in contro- versy to arbitration, except in those cases where th6 parties enter . into a submission in pursuance of the provisions of the statute. lb. ; 15 Wend. 104 ; 4 Denio, 347. And, therefore, a parol sub- mission is valid ; and it need not be in writing, except for the purpose 'Of enforcing the award in the manner prescribed by the statute. 2 Jlill, 271, and cases sitpra ; 5 How. 316. "Where the submission to arbitration is by a corporation, it may be made by a resolution, or ordinance, adopted at a meeting thereof; and it need not be under its corporate seal. 1 Barb. S. C. R. 584. And where the submission was signed by the presi- dent and two of the trustees of a corporation ; and all the trustees attended before the arbitrators and took part in the trial CH. II.] AEBITEATIONS. 29 of the controversy, as ■witnesses, &c. ; it was held that it was a sufficient submission to bind the corporation. 1 Hilton, 469. The form of the submission is a matter of iadifference. It is suf- ficient, if it appears from the acts of the parties, that an arbitra- tion was intended, and that the decision of the arbitrators should have the effect of an award. lb. Care must be taken, however, in drawing the submission, as it is from that that the arbitrators acquire their jurisdiction or power of deciding. The authority conferred by it must be strictly followed. Q Johns. 14:; 1 Wend. 326 ; 4 Corns. 157; T Hia, 329. "Where the submission is of all demands, it includes all ques- tions relating both to real and personal estate. 5 Wend. 268 ; 15 Johns. 197 ; 2 Cai. B. 320. And where it is general, of aU causes of action, an allegation of fraud in a sale is included. 9 Johns. 38, 42. And see also upon the construction of submis- sions, 20 Barb. 481 ; 23 Id. 187 ; Cow. & EilVs Notes to Phil. Ev. 840 ; Cald. on Arb. 25. It is not necessary that there should be an express agreement in the submission to abide by the award when made ; for the law implies this from the fact of submission. 2 Ba/rb. Ch. B. 430. The submission is valid, notwithstanding that it doesnot con- tain an agreement that a judgment of a court of record may be entered on the award. 4 Corns. 157. And where a submission purported to be made pursuant to the statute, but omitted to authorize a judgment to be entered on the award to be made ; it was held that this was not a submission under the provisions of the statute. 20 Barb. 486, per C. L. Allen, J. ; and see 5 Paige, 578 ; 4 Denio, 347. "Where the submission is under the statute, if the parties intend to authorize the arbitrators to award the costs and expenses of the arbitration, the submission should contain such autho- rity in express terms. 4 Benio, 249 ; amd see 13 Ba/rb. 90. But if the subject of controversy is an action then pending in court, the arbitrators may award as to the costs of such action without any express authority for that purpose. 4 Denio, 251. And so, they may award as to the fees and expenses of the arbitrators, without such authority. lb. 253. "Where the submission was by two parties on one side, and one on the other, it was held that it included not only the joint demands of the two but their individual demands against the Vol. I.— 3 so AEBirEATIONS. [CH. H. other party. 19 Wend. 285. And so, where the submission was by D. and M. on one side, and W. and his partner on the other, this authorizes the arbitrators to award against W,, alone. 1 JEBU, 319. The signatures of the parties to the submission should be wit- nessed, especially if the submission is under the provisions of the statute. 2 Hev. Stat. 542, sec. 9. The submission is revocable by either party at anytime before the matters in controversy are finally submitted to the arbitra- tors for decision ; subject, however, to liability to costs, expenses, and damages, which the opposite party may have incurred in pre- paring for the arbitration, and which he may recover by action of the party revoking. W Ba/rb. 262; 5 Paige, 578 ; 2 Rev. Stat. 544, sec. 23; and see post, "Eevocation of submission." Effect of svhrdssion.] The mere agreement to submit a cause pending in court to arbitration, operates as a discontinuance of the suit, although the arbitrators have not taken, or consented to take, upon themselves, the burden of the submission. 2 Wend. 505 ; 12 Id. 503 ; 15 Id. 293 ; 2 Sill, 387 ; 3 Bari. S. O. R. 275 ; 4 Id. 541 ; 11 How. 355 ; 22 Id. 342. But a party may afterwards waive such discontinuance by appearing at the trial of the cause, and going on with the same. 1 Wend. 314; 22 How. 342. And the submission will be a discontinuance of the suit, even though it is by parol ; and, this, too, notwithstanding the existence of a rule of the court avoiding all agreements between parties in respect to the proceedings in a cause, unless the same are in writing ; and notwithstanding, also, the provi- sions of the statute requiring submissions to be in writing. 15 Wend. 99. But a valid submission may be made, leaving the suit still pending, provided it appears from the agreement itself that such was the intention of the parties. Ih. ; 22 How. 342. And, it seems, the general agreement to submit to arbitration operates as a discontinuance, merely from the implied understanding of the parties that the suit is to be no further prosecuted. 15 Wend. 103, per Walworth, Ch. ; and see 20 Bar^. 268. But it is not a discontinuance where the parties agree that a judgment may be entered on the award. 6 Cowen, 399. And where, in such a case, the submission was revoked, it was held that the court CH. n.] ARBITRATIONS. 31 miglit proceed with tlie cause to trial, notwithstanding the sub- mission. Ih. Although the agreement to submit has the eflfect to discon- tinue the suit, yet where the submission authorizes a judgment to be entered in the suit, in conformity to the award, a judgment may be entered accordingly ; and such judgment will be binding on the parties as a judgment by consent. 11 Paige, 529 ; 17 Johns. 461 ; 18 Id. 23 ; 13 Wefid-. 293. Where a party attempts to proceed with a cause after it has been submitted to arbitration, the remedy is by motion to the court to stay the proceedings, and not by plea. 2 Hill, 390, and note ; 22 How. 3M. The submission of a claim to arbitration constitutes no defense or legal obstacle to an action for the same matter, if the action is commenced before the case is finally submitted to the arbitra- tors for decision. 20 Barb. 262 ; 4 Samd. 198, aff. 1 Belden, 422 ; 22 How. 342. Proceedings on the arbitration, <&o.] The arbitrators selected are to appoint a time and place for the hearing, and may adjourn the same from time to time, as may be necessary ; and on the application of either party, and for good cause, they may postpone such hearing to a time not extending beyond the day, fixed in the submission, for rendering their award. 2 Pev. Stat. 541, sec. 3. Before proceeding to hear any testimony, the arbitrators should be sworn, faithfully and fairly to hear and examine the matters in controversy, and to make a just award, according to the best of their understanding. Ih. sec. 4. For form of oath, see Appendix, 'Eo. 21. Such oath may be administered by any judge of any court of record, or by any justice of the peace, or by any commissioner of deeds. Laws of 1843, p. 246. But the omission of the arbitrators to take the oath prescribed by the statute, will not invalidate the proceedings ; and this, whether the proceedings are under the statute, or at the common law. 4 Corns. 157 ; S.C.1 Denio, 440 ; 24 Wend. 258 ; 1 £a/rl). Ch. P. 173. Though if objection is made, previous to the making of the award, that the arbitrators should be sworn, the omission, in such case, would no doubt render their proceedings irr^ular. 4 Corns. 159 ; 1 Barb. Oh. P. 173. The arbitrators are also to give the parties an opportunity of 82 AEBITEATIONS. [CH. II being heard in relation to the matters submitted. And an award made without reasonable notice of the time and place of hearing, to the losing party, and without his being present, is void. 23 Wend. 628, reversing 5 Wend. 516 ; 29 Barb. 465 ; 20 I^ew York, 463 ; 8 Bosw. 313 ; 3 Barb. 8. C. R. 275. For form of notice, see Appendix, No. 22. What is a reasonable no- tice is for the arbitrators themselves to determine ; and where they act in good faith in reference to that question, their award will be sustained, although they may err as to what constitutes a reasonable notice. lb. Due notice, however, will be presumed, to have been given ; and the party seeking to impeach the award for the want of such notice must prove that it was not given. 1 mil, 489 ; 1 Barb. S. G. R. 326. All the arbitrators must meet together, and hear all the proofs and allegations of the parties. But an award by a majority of them will be valid, unless the concurrence of all the arbitrators is expressly required in the submission. 2 Rev. Stat. 542, see. 7. In a case, however, which arose prior to the Revised Statutes, where three arbitrators were named in the submission, with power to any two of them to make an award ; it was held, that two of the arbitrators had power to hear, where the third had ■ been notified of his appointment and refused to attend, 2 Wend. 494 ; though it would have been otherwise, it seems, if the arbi- trator, who had been notified to attend, had not been wUfully ab- sent. 3. 496 ; Rev. Notes, 3 Rev. Stat. Id ed. 775 ; 11 Johns. 402 ; 6 /d 42 ; 4 Duer, 325. But where all the arbitrators have heard the proofs, &c., and the matter has been finally submitted to them, and they have adjourned to a fixed time to make then- award, if one of them is absent at that time, the other two may proceed and make a valid award. 3 Sand. S. C. R. 405. And where two of three arbitrators made the award in writing within the time, and it did not appear on the face of the award that all of them heard the proofs and allegations of the parties, it was held, that this might be shown by evidence aliunde. 7 Oowen, 290 ; 3 Sand. S. 0. R. 405. Although all the arbitrators must rueet together and hear the proofs and allegations of the parties, yet it is not necessary that all should concur in the decision of every question which arises as to- the admission or rejection of evidence ; but it is sufficient if all actually hear the cause. 3 Paige, 124. CH. n.] AEBITEATIONS. 33 In the examination of witnesses, and in the character of the evidence received, the arbitrators have a wider latitude than courts in the trial of issues. Caldwell on Arh. 52. And, in general, where the submission makes no provision on the sub- ject, the arbitrators may receive such evidence on the hearing be- fore them, whether material and relevant to the matters in issue or not, as they may think proper. They may, also, hear the statements of the parties themselves. And it is no ground for setting aside the decision of the arbitrators, that they have re- ceived impertinent and incompetent evidence, 21 Barb. 382 ; though, it seems,, it would be otherwise if they should refuse to receive evidence which was pertinent and material to the matters in controversy. 2 Bev. Stat. 542, sec. 10 ; lY Johns. 406 ; 15 Wend. 519. Where the arbitrators, as well as the parties and their wit- nesses, were all of the Jewish persuasion ; and the meeting of the arbitrators to try the cause was held on Sunday, and the award was on that day drawn up and signed ; but it was dated the day following, and was not imtil then delivered to the par- ties ; it was held that the award was valid. 1 Hilton, 469. Witnesses.] "Witnesses may be compelled to appear before the arbitrators, by subpoenas, to be issued by any justice of the peace, in the same manner, and with the like effect, and subject to the same penalties for disobedience (2 Hev. Stat. 240) as in cases of trials before justices of the peace. 2 Hev. Stat. 541, sec. 6. For form of oath, &c., on application for subpoena, see Appendix, JSTos. 23 and 24. The oaths to the witnesses and other persons examined before the arbitrators, may be administered by the arbitrators, or any of them. Zaws of 1843, p. 246. But the arbitrators do not possess the power to administer the oath, except where the sub- mission is in pursuance of the statute. 5 Mow. 315. For form of oath, see Appendix, No. 26. The award will not be vacated because the witnesses are not sworn, on the hearing before the arbitrators, where no regular objection is taken thereto at the time. Lai. Swpp. to Hill S Dmio B. 110. The awa/rd.'] The award, to be enforced according to the 34 ABBITBATIONS. [CH. H. provisions of the statute, must be in writing, subscribed by tbe arbitrators making tbe same, and attested by a subscribing wit- ness. 2 Bev. Stat. 542, seo. 8. For form, see Appendix, No. 28. It need not be under seal unless the submission requires it to be so ; and the fact that the submission is under seal, does not make it necessary to affix seals to the award. 23 Barb. 187. It is sufficient if the signatures of a majority of the arbitrators are attested, where a majority have the power to decide the matters submitted. 1 Selden, 482 ; 4 Barb. 250. And where the sub- mission was to two arbitrators, with authority " to select- a third party not interested," &c., " to decide any point of disagreement between them, whose decision was to be final ;" it was held that in case of a disagreement, it was essential to the validity of the award that it should be signed by the umpire selected. 11 Abb. 370. But the award, at the common law, need not be in writing, where the submission is verbal, vrithout any provision therein that the award shall be in writing. 2 Barb. Ch. B. 430 ; Cald. on Arh. 131. And even where the submission, by writing, and under seal, requires the award to be in writing, subscribed by the arbitrators, this may be waived by the parties, by parol; and a verbal award, afterwards made, wiU be binding on both. The agreement for the parol award, in such case, operates as a new submission, and the parties are estopped from saying that the parol award, made in pursuance of theii* directions, is void. 20 Barb. 481 ; and see 1 Hill, 321. It is sufficient if the award is made by a majority of the arbi- trators, xmless the concun-enee of all of them is expressly required in the submission. 2 Bev. Stat. 542, sec. 1 ; 1 Hilton, 469. But the rule is the reverse where the submission is by parol, at the common law, in which case the award must be made by all the arbitrators, unless the submission otherwise pro- ' vides. 6 Johns. 39 ; Cowen & HiWs Notes to Phil. Ev. 1030. And the statute has not changed the rule in this respect. 4 Denio, 347. Any form of words which amounts to a decision of the ques- tions submitted, is good as an award. Technical expressions are not necessary, nor technical precision and certainty, nor any introductory recitals. Buss. Arb. 244 ; 1 Hill, 489 ; 1 Selden, 482; 4 Barb. 250. If the award is expressed in such language CH. II.]. AKBITBATIONS. 85 that men of ordinary intelligence, acquainted with the subject matter, can understand it, that is sufficient, no matter how short and elliptical the phraseology may be. Id. ibid. And so, the form of the award is a matter of indifference ; the court will look at the proceedings in order to collect the intent. 23 Wend. 363 ; and see 12 Id. 156 ; 11 Johns. 103 ; 14 Id. 368. And where the award is ambiguous, the subject-matter to which it relates may be identified by parol. 1 Hill, 489, supra. And so, where it is indefinite as to the subjects investi- gated and determined, parol evidence will be received to show whether the arbitrators have exceeded their authority. 1 Barb. S. C. E. 326 ; 20 Id. 410 ; 7 Hill, 329. ■ Put where, by the terms of the submission, the award is to be made by the arbitrators in a particular form, the award is not made and ready for delivery until that form is complied with ; as, where it is to be attested by a subscribing witness, and this is not done (5 Paige, 575) ; or, where it is to be ia writing, under the hands and seals of the arbitrators, and the award is in writing, but not under seal (6 Johns. 133) ; or, where the award is to be in writing, under the hands of the arbitrators, and it is in writing, but not signed. 10 Id. 147, note. Where the concluding part of the condition in the bond of submission is thus: "so as the said award, &c., be made in writing, &c., and ready to be delivered to the parties on or before," &c., — these import a limitation upon the power con- ferred upon the arbitrators, the observance of which is essential to their jurisdiction, {a) 1 Hill, 321 ; 3 Barb. S. C. R. 57. And, therefore, where the award was required to be in writing ready for delivery to the parties on or before a given day, and the award was made and delivered to the prevailing party, but not to the other party ; it was held that the award was a nullity. 1 Hill, 321, supra ; 6 Johns, 14. The arbitrators, in such case, should execute and deliver two parts, unless the party shall, in some form, expressly discharge them of that necessity lb. ; 10 (o) As to the effect upon an award of an omisaion to comply with the ita quod clause, or other condition in the submission, so far as it relates to the form of the award, the subject-matter submitted, the time within which the award is to be made, &c., see Cowen & SiWi Notes to Phil. Ev. 1027 to 1030, and see post. And see as to when the award operates as a bar to a suit for the same matter. lb. 840. 1026, 1040. 36 ARBITEATIONS. [CH. 11. Johns. 144 ; 15 Id. 197 ; as by telling them that they need make no counterpart, for he will not receive it; or, hy the acceptance ot a sworn copy of the award in lien of the original. Id.; 1 Kill, 322, supra; and see 20 Ba/rb. 481. Where the parties submit all their demands to arbitration, it is no objection to the award that a particular matter, thus sub- mitted, was not laid before the arbitrators. 23 Barb. 188 ; 1 SeMen, 486. The parties are bound to claim before the arbitra- tors all demands coming within the scope of the submission. lb. The award settles and quiets forever all questions fairly within the meaning and intention of the submission ; and this, too, though the , arbitrators omit to pass upon some "of the mat- ters submitted to them. In this respect the award is the same as a judgment. 37 Barb. 251. l^or is it an impeachment of an award because it does not dispose of certain personal property belonging to a firm, the disposition of which was submitted to the arbitrators on the hearing. 20 Ifew York, 204. In ascertaining the amount to be awarded, the arbitrators are not limited to the penalty of the arbitration bond. The penalty is only regarded where the submission is revoked, and an action is brought upon the bond for damages. 7 Cowen, 522. As we have seen, the arbitrators, where the submission is under the statute, are not authorized to award against a party the costs and expenses of the arbitration, unless the submission, in express terms, authorizes it, 4 Benio, 249 ; though this would be otherwise, it seems, if the submission was at the common law. 14 Johns. 161 ; 2 Oowen, 651 ; 22 Wend. 128 ; but see contra, per Beardsley, J., 4 Benio, 251, and cases cited ; and see 13 Ba/rb. QO,per Harris, J. But if the subject of the controversy is an action then pending in court, the arbitrators may award as to the costs of such action, without any express authority for that purpose. 4 Benio, 251. And so they may award as to the fees and expenses of the arbitrators, without such authority. lb. 253. It must be made within the tim^, c&c] The award must be made within the time required by the submission. Kyd on Awards, 96. It cannot be made afterwards, unless the time is extended 3. And where the time is extended, an award made CH. II.] ARBITRATIONS. 37 witMn the extended time, is as valid and decisive of the rights of the parties, as if made vnthiu the time origiaally specified. 5 Podge, 5Y5 ; 2 Bosio. 116. The agreement extending the time should be in writiDg ; though it need not be under seal, even though the submission is under seal. 5 Paige, 575. If no time is specified in the submission within which the award is to be made, it may be made at any time, 22 Wend. 126 ; but in such case, it is the duty of the arbitrators, at the request of either party, to proceed within a reasonable time. 6 Verm. R. 666 ; Cow. & HilVs Notes to Phil. Ev. 1029. "Where the award bore date on the day after the time within which it was to be made, according to the submission, and it was not delivered until the day of its date, and there was no other evidence as to when the award was actually made, it was pre- sumed, in such case, that the arbitrators performed their duty and had the award ready within the time fixed ; and the mere date at the end of the paper is not enough to establish the contrary. 23 Barl. 187. But arbitrators are not bound to deliver the award until their fees are paid. And when an award is ready to be delivered on payment of the fees of the arbitrators, it is ready to be delivered to the parties within the legal meaning of a provision in the sub- nfission requiring it to be made and ready to be delivered within a certain time. 3 Barb. S. C. R. 57. It must he certain and final.'] The award ought to be certain, and to be expressed in such language that no reasonable doubt can arise upon the face of it, as to the meaning and intention of the arbitrators, or as to the nature and extent of the duties imposed by it on the parties. Thus, where an award directed one of the parties to give security, without specifying what that security should be ; it was held void for uncertainty. 8 Cowen, 235 ; 9 Johns. 43. And so, of an award which requires a party to finish " the house," or to pay for " the stove," without specifying the house or the stove that is meant. 2 Cai. R. 235. And so, where the award directs the costs of the arbitration to be paid, without stating the amount thereof, li. And so, of an award directing a farm to be delivered to one of the parties, where it does not appear what farm is intended. 3 Cowen, 72 ; see, also, 12 Wend. 377. 38 ARBITRATIONS. [CH. IL But certainty to a common intent, consistent with fair and probable presumption, is all tbat is required. 14 Johns. 96. Where the subject-matter of a suit was submitted to arbitration, and an award was made that " the said suit shall be no further prosecuted," this was held sufScient. 3 Oai. 304. And so', where it was submitted to arbitrators to determine the value of land to be taken for a railroad across the farm of one of the parties, and the damages which the owner would sustain by reason of the road crossing it, an award is sufficient if it state the whole amount to be paid for the land and the damages ; and it need not state the value of the land and the amount of dahaages, separately. 4 Selden, 160. And so, also, an award that a party has sustained damages to an amount which is therein specified, is sufficient, without directing the payment of the damages so assessed. 16 Ba/rb. 576. And so, an award directing a specific sum to be paid by one party to the other, is sufficient without requiring a release to be executed. 5 Wend. 268. And where, in such case, the award directed that if any errors were found in the calculation, on proof thereof, the party to whom the money was paid, was to refund the amount thereof, this was held final and sufficient. 2 Johns. 57 ; 13 Id. 27. Where the award refers to certain extrinsic circumstances, it is sufficiently certain. 14 Johns. 96; 2 Hill, 75 ; 23 JBarb. 187. Thus, where the submission is between partners, an award that one of the partners shall have and own in his own right, all the interest which the partners jointly had in a certain brewery, near the village of P., cannot be objected to for uncertainty. 5 Wend. 268. And if there is nothing on the face of the award showing that it may not be rendered certain by matter extrinsic, the intendment will be that it is certain, until the contrary is shown. 2 Hill, 75. Where a suit is submitted to arbitration, it is not sufficient that the arbitrators determine the amount of damages to be paid, with the costs ; but they should direct the suit to be discontinued ; otherwise, it seems, their award is not final. 14 Johns. 302 ; hut see 1 Hill, 69. And where the award directs money to be paid, as the price or value of certain stock, it seems it should also pro- vide for a transfer of such stock. 4 Denio, 195, per Bronson, J. ; and see 2 Oowen, 649. But where the award finds due to a party a sum of money, it OH. II.] AEBITBATI0N3. 89 is not indispensable that it should state in words or figures the precise amount thereof. It is sufficient, if nothing remains to be done in order to render the award certain and final, but a mere ministerial act, or an arithmetical calculation. 23 JBarb. 187 ; 12 Wend. 380. When the submission merely authorizes the arbitrators to de- termine the amount due to one of the parties, they are only authorized to ascertain and fix that amount ; and have no right to impose any condition upon the payment of it. 1 Barb. 8. C. R. 326. When the awa/rd is void, in whole or in part.'] It is from the agreement of submission that the arbitrators derive their power to decide upon the matters in controversy. It is that which gives them jui'isdiction ; and the authority conferred by it must be observed. 6 Johns. 14 ; 7 Hill, 329. If the submission is made conditional by the ita quod clause, and recites several distinct matters which are specifically submit- ted, and the arbitrators omit to decide one of the matters, and there are no general words in the award which can be construed to embrace a decision on such matter, the whole award will be void. 1 Selden, 485, per Paige, J., and cases cited; 5 Cowen, 199 ; 14 Joh/ns. 96. Where the submission containing the ita quod clause, is general, but the decision of the arbitrators applies in terms only to a particular matter, the award, if it purports to be made concerning the matters submitted, vrill be good, unless it is shown that there were other matters brought before the arbi- trators which they neglected or refused to decide. Id. Hid. But if the arbitrators award in relation to one or more things, and say that they will not meddle with the rest, or omit to do so after notice of the same, the whole is void ; because they have not pur- sued their authority ; and in such case it is immaterial whether the submission was general or special. 5 Cowen, 199 ; 4 Duer, 133 ; Kyd on Awards, 174 ; Wat. on Ari. 121, and cases cited. If the arbitrators pass upon the matters submitted, and also include in their decision another matter not submitted, the latter may be rejected, and the award will still be good as to the re- sidue. 4 Comstoch, 567; 15 Ba/rh. 525 ; 1 Hill, 490 ; 1 Wend. 326; i Cowen, 117; 2 Id. 628; 13 Johns. 264; 10/. The party sought to be charged by the proceedings should have notice of the motion to confirm (5 Wend. 102 ; for form, see Appendix, No. 32) ; though this is not necessary if the right of such party to move to vacate or modify the award has expired, 42 ARBITEATIONS. [pS. U. by reason of his omission to make such motion within the time authorized by the statute. 6 Id. 620; 2 Hm. Stat. 542, seo. 12, post. The notice should be served, personally, at least eight ' days before the first day of the term at which the motion is to be made. 1 Burr. Pr. 333, 352 / cmA see Code, % 413 ; Swpreme Court Rules, No. 39/ and should be made at a special term. lb. JVo. 40 / 10 Wend. 589. For forms of notice, see Appendix, Nos. 33, 34. Where the bond of submission contained a stipulation that in case the award 'was not paid or fulfilled, judgment for the penalty of the bond might be forthwith entered up ; it was held that a special motion to the court was not necessary, but that the prevailing party was at liberty to perfect judgment in vacation, immediately after the award. 4 JSzU, 551. In such case a rule for judgment may be entered, as of course, and without notice, Jb. Where an order vacating an award is reversed, and the award is then sought to be confirmed, the proceedings are either remit- ted to the court below, to proceed thereon, or the court of review will proceed, after due notice to the party complaining of the award, to- confirm the same, in the same manner and with the like effect as if application had been originally made to such court. 2 JSev. Stat. 544, sec. 21, post,' Lai. Sujpp. to Hill <& Denio, 110. And the court of review in such case may make an order to show cause at a special term why the award should not be confirmed. lb. Motion to vacate the anjoa/rdI\ The statute authorizes any party complaining of the award to move the court designated in the submission, to vacate the same, upon either of the following grounds : 1. That such award was procured by corruption, fraud, or other undue means ; 2. That there was evident partiality or corruption in the arbitrators or either of them ; 3. That the arbitrators were guilty of misconduct, in refus- ing to postpone the hearing upon sufficient cause shown, or in refusing to hear any evidence pertinent and material to the con- troversy, or any other misbehavior, by which the rights of any party shall have been prejudiced. CH. II.] ARBITEATIOire. 43 4. That tlie arbitrators exceeded their powers ; or, that they so imperfectly executed them, that a mutual, final, and defi- nite award, on the suhject-matter submitted, was not made. 2 Rev. Stat. 542, sec. 10 ; {a) 21 Barb. 382. For form of notice of motion, see Appendix, No. 33 ; and for order vacating award, see Appendix, No. 36. To entitle a party to move to vacate an award under these provisions of the statute, the submission must have been a sub- mission under the statute, and not at the common law. See 9 Johns. 213 ; 7 Hill, 331 ; 3 Sand. S. C. R. 4. On the motion to vacate, the court will look beyond the sub- mission and award ; and afiidavits will be received to show what took place at the hearing, and that the arbitrators exceeded their powers, or omitted to decide on all the matters submitted, &c. 4 Denio, 194 ; and see 7 Hill, 329, reversing 1 Id. 489 ; Id. 319 ; 20 Barl. 412. The Eevised Statutes, it seems, have not changed the law as to the power of the court to set aside an award in respect to the conduct of the arbitrators. Formerly, an award might be set aside for partiality, or corruption, in the arbitrators ; and this is still the law. 10 Wend. 589; 17 Id. 413. The assessment of damages may be so exorbitant as to induce the belief that the arbitrators acted corruptly, or with gross partiality ; and, in such case, their award will be set aside. 17 Johns. 406. And so the award will be set aside if the parties have not had an opportu- nity of being heard before the arbitrators ; and it is not neces- sary in such case to show fraud or corruption. 3 Barl). S. 0. R. 276. But corruption or partiality in arbitrators should be plainly established to justify the court to interfere on that ground. 4 Selden, 168, per Johnson, J. The terms misconduct and misbehavior, as used in the statute, are not applicable to a mere error in jildgment ; but imply an (a) The Revisers' original note to this section is as follows : " The preceding sec- tion is chiefly an enumeration of the oases in which awards may be vacated with some extension. (1) According to sec. 2, 1 B. L. 126 ; 2 J. Ch. R. 339 ; lb. 551. (2) 3 Gaines E. 166 ; 3 Johns. B. 367. (3) Pounded in principle on 11 Johns. B. 405. (4) 14 Johns. B. 96. Concealment of material facts, by either party, is mentioned in some cases (IT Johns. B. 405), as a ground for vacating an award ; but it is con- ceived that such a proposition would be too broad, and that the general expressions In the first subdivision are preferable." 3 Rev. Stat. 2d ed. 775. 44 AEBITBATIONS, [CJH. II. intention to do wrong. 10 Wend. 590. And the court will not interfere where the arbitrators have erred only in respect to a question of law or fact. 14 Johns. 96 ; 1 Barb. Ch. B. 173 ; 3 Paige, 124 ; 10 Wend. 589 ; 17 Id. 410 ; 24 Barb. 147. The court will not look into the merits of the controversy. Id. ibid. ; 5 Cowen, 425. " It could never have been the intention of the legislature that the court should sit in review upon the decisions of all the arbitrators in the State ; if such had been their inten- tion, they would have provided some writ of review or writ of error. It was intended to give relief in cases of corruption or improper conduct on the part of the arbitrators or parties, or where there was a want of jurisdiction, or the award was not final, but in no other case." Per Savage, Ch. J., 10 Wend. 591 ; and see 17 /6?."413, and 3 Paige, 138, sivpra. Motion to modify or correct the cuward.'] The statute further provides, that any party to the submission may also move the court, designated therein, to modify or correct the award in the following cases : 1. Where there is an evident miscalculation of figures, or an evident mistake in the description of any person, thing, or prop- erty, referred to in such award ; 2. Wliere the arbitrators shall have awarded upon some mat- ter not submitted to them, not affecting the merits of the decision upon the matters submitted ; 3. Where the award shall be imperfect in some matter of form not affecting the merits of the controversy ; and where, if it had been a verdict, such defect could have been amended or disre- garded by the court, according to the provisions of law. 2 Bev. Stat. 542, sec. 11; 10 Wend. 589 ; 17 Id. 412; Bev. Notes, 3 Bev. Slat., 2d ed. 776 ; and see ante, " Motion to vacate the award." For form of notice of motion, see Appendix, No. 34. When, and Jiov^, motions to be made.] The application to va- cate or to modify the award must be made to the court desig- nated in the submission, at the next term after the publication of the award, upon the same notice to the adverse party as in other cases of special motions, if there be time for that purpose. If there be not time, such court, or any judge thereof, may, upon good cause shown, order a stay of proceedings on such award, CH. n.] AEBITEATIONS. 45 either absolutely, or upon sucli terms as shall appear just, until the term of the court next after such first term. 2 Sev. Stat. 642, seo. 12 ; 10 Wend. 589 ; 2l New York, 148. The application, under the above section, should regularly be made at a special term. Sxvp. Court Rules, No. 40 ; 10 Wevd. 589. ISTotice of the motion should be served personally, at least eight days before the first day of the term at which the motion is to be made. 1 Burr. Pr. 333, 352 ; and see Code, § 413 ; Sup. Court Mules, No. 39. For form of notice, see Appendix, Nos. 33, 34. The application may be founded on the submission and award ; and, also, upon the afiidavits of the parties, or the arbitrators, or others, setting forth the irregularities complained of. 4 Denio, 194. But the arbitrators will not be permitted to contradict their award. 3 Paige, 124 ; 12 Wend. 212. Nor to give evi- dence tending to impeach it. 1 Barh. 8. C. H. 326 ; 20 Id. 482. Though their testimony may be received, when fraud is not al- leged, to show that they did not take a particular subject matter into consideration. 1 Barb, supra. And that matters were in- cluded in the award which were not embraced in the submission. 20 Id. 410. And to testify io reference to facts occurring upon a public hearing, and in the presence of the parties, and in reference to decisions openly made by the arbitrator and his associates. 2 Bosw. 124. But the rule, that arbitrators are not permitted to give evidence to impeach or contradict their award, does not ap- ply to arbitrators whose powers have been terminated by the ap- pointment of an umpire, by whom the award is made. 1 Barb. S. C. B. 326. Proceedvngs on the application.^ On the application to vacate or modify the award, the court may vacate the award in any of the cases specified {supra) ; and if the time within which such award shall have been reqiiired to be made, by the submission, has not expired, may, in their discretion, direct a rehearing by the arbi- trators ; and, in the cases specified, the court may modify and correct such award, so as to effect the intent thereof, and to pro- mote justice between the parties. 2 Bev. Stat. 543, sec. 13. Judgment on the oMO/rd.'] The statute provides that upon the award being confirmed or modified, the court shall render judg- VoL. L— 4 46 AEpmU-TIOKS. [CH. IL •ment in favor of the party to whoin any sum of money or dama- ges shall have been awarded, that he recover the same ; and if the award shall have ordered any act to be done by either party, judgment shall be entered that such act be done according to such order. 2 B&o. Stat. 543, sec. 14. For form, see Appendix, No. 35. This provision of the statute applies, of course, only to those cases where the submission is under the statute, and aathorizes a judgment to be entered upon the award. 4 Denio, 34Y; 20 Barb. 486 ; 5 Paige, 578. But there is a class of cases where judgment may be entered on the award of the arbitrators, although the submission was not under the statute. Thus, where there is an agreement to refer a pending suit to arbitrators, and that a judgment in the action shall be entered according to their decision, this will justify the entry of such judgment ; and the judgment will be binding upon the parties as a judgment by consent. 11 Paige, 529 ; 12 Wend. 212 ; 16 Barb. 578 ; 27 Wew Yorh, 225. And so, where ac- tions, not referable under the statute, are referred to referees, by stipulation or rule of court, and the stipulation or rule contains express authority that judgment may be entered on their report, judgment may be entered accordingly. 13 Wend. 293 ; 19 Id. 21 ; Id. 108. The principle upon which the authorities proceed is stated by Bronson, J., in the case last cited, thus : " If the par- ties agree io aH unauthorized reference, it amounts to nothing more than an arbitration ; the suit is at an epd — the court has no longer any jurisdiction over the parties, and will take no fur- ther cognizance of the matter. If there is an express agreement that judgment shall follow the report, that is regarded as equiva- lent to a confession, and judgment may be entered accordingly. But the right to enter judgment, where no action is pending, can- not be taken by implication. There must be a warrant of attor- ney, or some other express authority for that purpose, or the judgment cannot stand." Id. 112. In the event of the death of one of the parties to a proceed- ing upon arbitration and judgment entered thereon, under the statute, the court is not authorized to revive the proceeding, or to substitute another person in the place of the deceased. The provisions of the Code of Procedure, in reference to the revival and continuance of actions, do not apply in such a case ; nor OH. n.] ARBITBATI0N3. 47 does tlie equitable power of the court authorize such a revival. 18 Aib. 344. The costs and eospenses, t&c] The costs of the proceedings are required by the statute to be taxed as in suits ; and if no pro- vision for the fees and expenses of the arbitrators shall have been made in the award, the court shall make the same allowance aa provided by law for references ; but no costs shall be taxed for any other services or expenses prior to such application. 2 Hev. Stat. 543, sec. 14. The arbitrators may award as to their own fees and expenses. 4 Denio, 249. If they have not done this, they will be allowed, on the taxation, the same fees and expenses as referees. These are fixed by the statute at three dollars per day to each, for every day necessarily spent in the business. Code of Pro. sec. 313 ; 2 Rev. Stat. 643, sec. 36. If the fees of the arbitrators are not paid, they may prosecute for the same by suit at law; so held where a party revoked the submission, and one of the arbitrators brought an action against him for his fees and expenses, up to the time of revocation. 1 Denio, 188 ; and see 3 Bari. S. G. JR. 63. And where such fees are awarded to be paid by one of the parties to the arbitrators, it seems that the other party to the award cannot recover them in an action on the award ; at least without actual payment by him. 14 Johns. 368. The arbitrators have no power to award in'respect to the costs and expenses of the arbitration where the ■ submission is un- der the statute, and contains no provision expressly authorizing it (4 Denio, 249) ; though this would be otherwise, according to the authorities in this State, where the submission is at the common law. 14 Johms. 161 ; 2 Cowen, 638 ; 22 Wend. 126 ; 17 Sow. 24. But see, ^er Beardsley, J., 4 Denio, 251, 2 ; and 13 Barb. 90, per Harris, J. The statute further provides that if the court, on the appli- cation to vacate the award, shall va«ate and set the same aside, costs shall be aw^-rded to the prevailing party ; and the payment thereof may be enforced by execution, as in other cases. 2 Bev. Stat. 544, see. 19; Laws of 19,17, p. 491. In respect to the allowance of costs, and the rate at which the same are to be taxed, see ante, p. 14, note J/ and see Laws of 1854,^. 592, ante, p. 19, note. 48 ARBITRATIONS. [CH. II. Judgvient record.'] A record of the judgment is required to be made, commencing with a memorandum reciting the submis- sion ; then stating the hearing before the arbitrators ; their award ; the proceedings of the court thereupon, in modifying or confirming such award ; and the judgment of the court for the recovery of the debt or damages- awarded, and that the parties perform the acts ordered by the award, and for the recovery of the costs allowed. 2 Bev. Stat. 543, sec. 15. Such record shall be filed and docketed, as records of judg- ments in other cases ; shall have the same force and effect In all respects ; and be subject to all the provisions of law in relation to judgments in actions ; and may in like manner be removed and reversed. li. sec. 16 ; Zmvs of 1864:, p. 592 ; Code of Pro. sees. 8, 11, 333 ; and see 9 How. ZQ4,per Duer, J. ; s. e. 3 Duer, 616 ; 24 Barb. 149. For form of judgment record, see Appen- dix, No. 37. How judgment to he enforced^ After the filing and docket- ing of the judgment, execution may issue thereiipon against the property or person of any party against whom a recovery shall be had, in all respects as upon other judgments. 2 Sev. Stat. 543, sec. 16, and see 1 Bwrr. Pr. 293, and Ora. Pr., title, ^'•Fieri Facias f Yoorhies' Code, § 291, and notes. And where, by such judgment, any party shall be required to perform any act, other than the payment of money, the court rendering such judgment shall enforce the same by rule ; and the party refusing or neglecting to perform and execute such act, or any part thereof, shall be subject to all the penalties of con- temning an order of the court, and may be proceeded against as for a contempt, in the manner prescribed in the thirteenth title (2 Rev. Stat. 534) of chapter eight of part third of the Eevised Statutes. 2 Rev. Stat. 543, sec. 18, post, ch. vii. Review of the proceediings hy writ of error or appeal.] The statute provides that the judgment entered on the award mav be removed and reversed by writ of error, in the same manner as judgments in actions. 2 Rev. Stat. 543, sec. 16 ; 19 JVew York, 589 ; and see ante, p. 14, note h. And when any writ of error shall be brought on the judg- ment, certified copies of the original affidavits upon which any OH. II.] AEBITEATIONS. 49 application in relation to such award was founded, and of all other affidavits, and papers relating to such application, shall be annexed to, foi-m a part of, and be returned with, the record of the judgment ; and the appellate court shall reverse, modify, amend, or affirm such judgment, or any part thereof, according to justice. 2 Rev. Stat. 543, sec. 17. Objections to the regularity of the proceedings, not affecting the merits, should be made in the court below, to entitle a party to avail himself of them in the appellate court. Thus, where the objection was raised for the first time on error, after confirmation and judgment, that the affidavit proving the submission did not show that the witness subscribed when the bond of submission was executed, — ^it was held too late for the party to avail himself of it. 6 Hill, 303. The proper course is for the party to sub- mit his objections in writing to the court below, and on bringing error, the objections would then be certified and returned with the other papers relating to the application. lb. 307, per Bronson, J. The statute farther authorizes a writ of error upon an order vacating the award, the same as upon any other judgment of the court ; to which writ shall be returned certified copies of the order, and of all affidavits and papers used on such application ; and the court, to which such writ shall be returned, shall pro- ceed to confirm or reverse such order, as shall be just. 2 Rev. Stat. 544, sec. 20; 19 New York, 584. If the order be reversed, the proceedings will be remitted to the court from which they were removed, to proceed thereon ; or the court, to which such proceedings shall have been returned, may proceed thereon, after due notice to the party complain- ing of such award, to modify or confirm the same, in the same manner, and with lite effect, as if application for that purpose had been originally made to such court. 2 Rev. Stat. 544, see. 21 ; Loll. Supp. to Hill (& Denio R. 110. And the court of review, in such case, may make an order requiring the party to show cause, at a special term, why the award should not be confirmed. li. In case of the death of a party to the proceedings, and judg- ment entered therein, under the statute, the court cannot revive the proceedings, or substitute another person in the place of the deceased ; the provisions of the Code in reference to the re- 50 AEBITEATIONS. [CH. II. vival and contimiance of actions, not applying to arbitrations, 18 Aib. 3M. An appeal is also authorized to be taken from tbe decision of the special term of the Supreme Court, or Court of Common I'leas, or Superior Court of the city of New York, to the general term of the same court, or court in which the judgment is enter- ed. Laws of 1854:, p. 592, ante, p. 14, note b. And the judgment of those courts at the general term may be reviewed by writ of error, in the Court of Appeals, and not by an appeal under the Code. 19 JVew York, 58i. See further on the subject of appeals, and the effect of the Code of Procedure, upon this proceeding, ante, p. 14, note h. Bevocat/hon of submission.] The agreement for the submission of matters in difference to arbitrators is a mere authority, revo- cable by either party. At the common law, this might have been done at any time before the award was actually made and ready to be delivered to the parties. Kyd on Awards, 32, 3 ; 16 Johns. 205. But, by the statute, neither party can revoke the submission, after the cause is finally submitted to the arbitrators, upon a hearing of the parties for decision. 2 Hev. Stat. 544, sec. 23 ; 20 Barh. 262 ; 11 Paige, 529. This statutory provision was not reported by the Kevisers, but " was inserted by the legis- ture in the passage of this title through the two houses, for the purpose, undoubtedly, of guarding a person who had submitted his cause to arbitration, against the manifest injustice of having the submission revoked by his adversary, after the probable re- sult of the arbitration had been ascertained, but before the neces- sary forms could be complied with to render the award binding upon the parties." 5 Paige, 579, per "Walworth, Ch. And this provision of the statute applies to all cases of submission to arbi- tration, whether the submission authorizes a judgment on the award or not, 5 Paige, 575, supra ; 11 Id. 534 ; though it would be otherwise, if the submission is by parol. 4 Denio, 348, per Bronson, J., and see 15 Wend. 99 ; 20 Barb. 486. The revocation must be in writing, and under seal or not ac- cording to the submission. If the submission is under the stat- ute, the revocation should be in writing ; if not under the statute, and it is by parol, the revocation may be by parol. Cold, on Arb. 31 ; Kyd on Awards, 32 ; 8 Johns. 125. CH. II.] ARBITEATIONS. 51 "Where the submission is by one on the one side and two on the other, one of the two cannot revoke without the assent of the other. 12 Wend. 578. Notice of the revocation should be given to the arbitrators. Cald. on, Arl. 31 ; and see 16 Johns. 205. The death of a party is equivalent to a revocation ; but, in this case of implied revoca- tion, no notice to the arbitrators is necessary. Wat. on Arh. 16. No particular form of words need be used to constitute a valid revocation. If the intention to revoke can be gathered from the instrument of revocation, although it does not disclose in terms that the party revokes, it is sufficient. 1 Cowen, 335. For form of revocation, see Appendix, No. 26 ; and for form of notice, see Appendix, No. 27. And see further on the subject of revocation, Gowen di HilUs Notes to Phil, Ev. 1032, 3, and cases t/iere cited. Liability for revoking ; action; damages, <&c.] Whenever any submission to arbitration shall be revoked by a party thereto, before the publication of an award, the party so revoking shall be liable to an action by the adverse party, to recover all the costs, expenses and damages, which he may have incurred in prepariag for such arbitration. 2 Bev. Stat. 544, sec. 23 ; 20 Barb. 267. If the submission so revoked was contained in the condition of any bond, the obligee in such bond shall be entitled to prose- cute the same, in the same manner as other bonds with con- ditions other than for the payment of money, and to assign such revocation as a breach thereof; and for such breach, he shall re- cover as damages the, costs and expense incurred, and the damages sustained by him in preparing for such arbitration. 2 Rev. Stat. 544, sec. 24 ; 7 Cowen, 522. No other sum, penalty, forfeiture, or damages, shall be recov- ered for any revocation of a submission to arbitration, than su^h as are prescribed in the last two sections ; notwithstanding any stipulated damages, penalty, or forfeiture, contained in such submission, or in any other instrument, or agreement collateral thereto. 2 Rev. Stat. 545, sec. 26 ; (a) 16 Johns. 209. , And the party entitled to damages may recover the same by (a) The Revisers' note to this section, and the two preceding sections, is as fol- lows: "The three last sections are drawn in conformity to the decision of the Su- 52 ABBITRA.TIONS. [CH. II. way of counter-claim, where an action is brought against him to recover the claims submitted to arbitration. 30 Ba?'!). 225. Construction of the statute.] It is declared by the statute that nothing contained in the statutory provisions hereia con- sidered shall be construed to impair, diminish, or in any way affect the power and authority of the Court of Chancery over arbitrators, awards, or the parties thereto ; nor to impair or affect any action upon any award, or upon any bond or other engage- ment to abide by an award. 2 Bev. Stat. 544, sec. 22 ; 24 JSarh. 633. It is intended by this section, " not to diminish the power of the court in peculiar and equitable cases ; nor to affect actions on bonds or awards." Bev. Notes, 3 Re/o. Stat. 775, 2(Z ed. In what cases a court bf equity may interfere.'] A court of equity will interfere where there is gross and palpable mistake. 1 Johns. Ch. R. 101; Ih. 226; 2 Id. 276; or, where the award is obtaiaed by the false and fraudulent statements of a party, 2 Day, 553 ; or by the partiality and corruption of the arbitrators, 17 Johm. 406 ; am,d see 23 Barb. 188. But where there is no charge of corruption, or misconduct, or undue practice, in the arbitrators, an award will not be set aside, however unreasonable or unjust it maybe. 2 Johns. Ch. E. 551. The award, however, must be within the jurisdiction of the arbitrators. If they have exceeded their powers, as, by including in the award matters not contained in the siibmission, the award will be void, and a conrt of equity may declare it so. 7 Hill, 829, arid see 20 Barb. 410. Corruption or partiality in the arbitrators should be plainly established, to justify the court to interfere on that groxmd. 4 Selden, 168, per Johnson, J. And so, the court will not inter- fere where there is a mistake of judgment in the arbitrators, 3 Paige, 124 ; nor where the objection is, that the arbitrators de- cided wrong either as to the law or the fact. 1 Barb. Ch. R. 173. See also as to the authority of a court of equity to interfere in these cases, WiUa/rd's Eg. Jur. 77, 164, 358 ; and see also, 1 PaJig^, 293; 1 Johns. Ch. R. 432; 5 Wend. 520. preme Court in 16 Johns. R. 209 ; which it is deemed useful to declare, and to furnish the opportunity of settUng finally the much agitated question respecting stipulated damages, which are frequently inserted in submissions, to avoid the general rule of law concerning penalties." 3 Hev. Stat. 2d ed. 115. CH. il] arbitrations. 58 Action to enforce the award.'] The oaly remedy of the party for the enforcement of the award, where the submission is not under the provisions of the statute, is by action. The action is founded upon the award, or upon the bond or agreement of sub- mission. And the defendant in the action may set up ia his answer facts showing that the award is invalid, and pray an affirmative judgment to that effect ; and he is no longer required in such cases to bring a cross action. 29 Barh. 465. In actions involving the validity of an award, it was formerly the rule that a party could not impeach the award by going behind it, and showing that the arbitrators exceeded their au- thority, or omitted to pass upon all the matters included in the submission. 3 Johns. 36Y ; 9 7cZ. 38 ; 1 Eill, 489. But the rule is now settled otherwise, and seems well established that in such cases the award may be impeached. Y HiU, 329, rev'g 1 Hill, supra ; 4 Denio, 199 ; 20 Barl. 411, per 0. L. Allen, J. And oral evidence is admissible for that purpose, even though the submission and award are in writing and under seal. Id. ibid. And so, the award may be impeached by showing that the losing party had no notice of the hearing before the arbitrators, .23 Wend. 628; 1 Hill, 490; or that testimony was taken on the hearing in the presence of one party and in the absence of the other, even though there was no evidence to show that the arbitrators acted corruptly, or intentionally violated their duty, 29 Barb. 465 ; or by showing that, before the award was made, the arbitrators resigned their authority, and that such resignation was accepted by the parties, 2 Wend, 602 ; or that their author- ity was revoked, or any other fact showing that the arbitrators were acting without jurisdiction, or that the award is void. See ths cases cited swpra, and 9 Barb. 246. But in an action on the award, the court will not inquire whether the arbitrators erred on the merits, or acted corruptly, 1 Hill, 319 ; 23 Barb. 188 ; nor whether they have commit- ted errors or mistakes, in respect to the matters submitted to them, 20 Barb. 409, and cases there cited ; 2 Wend. 567 ; nor whether the award is against law. 7 Cowen, 185; 14 Johns. 105. 1^0 action can be sustained upon the bond of submission, where the arbitrators fail, without the fault of the parties, to 54 AEBITEATIOIjrS. [CH. II. make an award within the time limited by the submission for that purpose. 1 Selden, i21. Nor can an action be sustained upon such bond, where the award is not made withia the time required by iL, even though the parties, by an agreement undei their hands and seals, have enlarged the time for making the award, and the award is made within such enlarged time. 9 Johns. 116 ; 5 Paige, 575. The remedy, in such case, is upon the submission implied in the new agreement, taken in connec- tion with the bond, or by an action upon the award made in pur- suance of such submission. Id. ibid. Where the submission is by bond, and the party in whose favor the award is made brings his action to enforce the payment of the award, he is not limited in the amount of the recovery to the penalty of the bond. 7 Cowen, 522. In such case, the amount the party is entitled to recover is to be determined by the award. Jb. And the party can only recover the amount actually awarded, even though the agreement of submission con- tains a clause to the effect that the party who refuses to abide by the award should pay a larger sum than the amount awarded, as " ascertained and liquidated damages." 1 Denio, 464 ; and see 22 Wend. 163 ; 17 Id. 447 ; 5 Oowen, 150, note. If money is directed to be paid by the award, no demand is necessary before suit brought. 22 Wend. 128. But where one party is directed to pay money on or before a certain day, and the other to do some other act on the same day, e. g., to convey land — ^the acts, in such case, are concurrent, and neither can recover without performance or tender. 12 Id. 591. "Where the submission provided that judgment might be rendered in the county court upon the award made in pursuance of the submission ; and after the arbitrators had made their award, the party in whose favor the award was made, without entering judgment upon such award, commenced an action upon the same ; it was held regular, and that such party had his elec- tion either to enforce the award, under the statute, or to treat it as a common-law award, and enforce it by action. 24 Barb. 632. The action upon the award may be brought in the Supreme Court, although the submission provides for judgment in the Coimty Court. And the right of action is not suspended until the term of the County Court succeeding the award. 21 New York US; af'ff 24: Barb. Q33. CH. n.] AEBITEATIONS. 54-1 SUPPLEMENT TO CHAPTER II. Biibrmssion to Begiater in Banhniptcy. An agreement to submit to a register in bankruptcy tlie adjustment of an account between tbe parties to an action : held, a common law arbitration and binding. 3 Hun, 603, S. C. 16 Abb., N. &, 303. Submission by husband; Question of damage done to land owned by wife. Where an agent submits to arbitration the question of damage done land owned by the wife of his principal, supposing it to be land of the principal, for earth and stone removed from such land, but afterwards on learning that the title of such land was in the wife, he gave notice to the other party, and executed a new submission upon the same terms, and tendered it to the other party, who declined receiving it, saying that it would make no difference ; it was held that such submission was valid, and that the wife was bound by the award made thereon. 35 JV". Y., 391. Held, further, that where the wife permitted the arbitration to proceed in the name of her husband, knowing herself to be the party in interest, she was bound by the award. lb. Submission by one partner. Although the weight of authority may be in favor of the rule that one partner cannot bind his copartner by a submission to an arbitration, yet any manner of actual authority given by the non-signing partner to his copartner, or a subsequent ratification of the submission, will ba sufficient to bind the firm, and render the submission valid. 6 Hun, 335. The arbitrators. Where it clearly appears from the language used in the commencement and conclusion of an award, that the award was made concern- ing the matters submitted, it will be presumed the arbitrator did his duty, until it is shown that he neglected or refused to decide all the matters brought before him. 2 Eobertson-, 496. 37i« submission, under the statute, must be attested by a subscribing wit- ness ; and where such attestation is wanting, no judgment can be entered upon the award. 5 Hun, 419 ; and see 49 Barb., 353. Effect of submission. A submission to arbitration of a suit pending operates as a discontinuance of the suit as an action ; but, where the submission provides for a judgment to be entered in the action, such judgment may be entered, and stand as a judgment by consent, and cannot be set aside in the ordinary way by which errors are corrected. 66 Barb. , 209. And where pending an appeal from a judgment, the parties to the action submitted their differences to arbitra- tion, it was held, that such a submission implied an abandonment of the judg- ment ; and although the parties failed to act upon the submission, such failure to act did not revive the judgment. 4 Hun, 119. Where the submission pro- vides for a stay of proceedings in the action, pending the making of the award, the submission, in such a case, operates as a perpetual stay until the making of the award, after which it effects a final discontinuance of the action. 1 Hun, 343. Proceedings on the arbitration, . 449 ; 11 Id. 9 ; 12 Id. 197 ; and fiee 6 All. 318, per Davies, J.; II. 321, note; s. c. 14 How. 443 ; 5 Duer, 634; 4 Id. 644; 2 Selden, 565 ; 32 Barl. 662. But where the right to arrest is derived from the nature of the action, as, where the action is for the conversion of property or for money received in a fiduciary capacity, or the like, the court will not vacate the order upon the motion, unless the dfefendant clearly makes out such a case as would call on the judge presid- ing at the trial to either nonsuit the plaintiff, or direct a ver- dict for the defendant. 34 Barl. 20 ; 15 All. 475 ; 14 How. 431 ; and see 2 Hilt. 179 ; 4 All. 103 ; 1 Bosw. 634, s. o. 6 All. 319, note; 12 Id. 435, s. c. 22 How. 95 ; 4 Bosw. 619. A simple denial of the facts sworn to on the part of the plain- tiff will not entitle the defendant to a discharge from arrest ; but there must be a preponderance of evidence either by other witnesses or by the statement of other matters corroborative of the defendant's denial. 20 How. 265. Though where, upon a motion to vacate an order of arrest, the affidavit of the plain- tiff was read, which positively and unequivocally alleged the making of certain false representations by the defendant at the time of purchasing goods of the plaintiff; and this was met by the affidavit of the defendant, wherein he positively denied mak- ing such false representations ; it was held that the defendant's affidavit should be considered as neutralizing that of the plaiatiff upon that point ; leaving the plaintiff to make out his case of fraudulent representations by other or further proofs or circum- stances. 32 Barl. 662 ; and see 16 All. 251, s. c. 25 How. ill ; 23 How. 381. CH. ixl] aekest and bail. 93 Where an issue was raised on tlie pleadings wtether the defendant was guilty of a fraud in contracting tlie debt, or not, and tlie court, upon the trial, expressly found in favor of the de- fendant ; it was held that such finding was conclusi re against the plaintiff's right to arrest the .defendant, and that the defend- ant was entitled to have vacated an order of arrest granted at the commencement of the action. 13 Abb. 187. In an action to recover the possession of personal property, the plaintiff claimed the inamediate delivery of the property, and served the sheriff with the requisite affidavit, notice and under- taking to entitle kim to such delivery. The sheriff subsequently returned that the property in question had been concealed or re- moved, so that the same could not be taken by him, and there- upon the plaintiff obtained an order for the defendant's arrest, founded upon such return. On a motion to vacate the order of arrest, it was held, that the sheriff's return was ^prima facie evi- dence that the property had been concealed or removed to pre- vent its being taken ; but that such presumption might be rebutted by the defendant, and that on that being done the order of arrest would be vacated. 3 Code R. 89. The order of arrest will not be vacated because the case made by the complaint varies from that made by the affidavits, if the affidavits are themselves sufficient and disclose a ground of arrest which is consistent with the allegations of the complaint, 7 Ahh. 181 ; nor because the summons is erroneously entitled, 1 Bosw. 634 ; nor because the summons has been amended, 6 Ahh. 316 ; nor because an attachment has been issued in another State, be- tween the same parties and for the same cause of action, and a small amount of property attached, 1 Code B., N. 8. 210 ; nor on the ground that an action has been commenced against the defendant for the same cause, in a foreign country, 20 How. 311 ; nor because the debt is iarred by the statute of limitations, where that defense is not alleged in the answer, Ih.; nor be- cause one of the plaintiffs has been improperly made a party to the action, 11 J.55. 113 ; nor because the defendant, at the time of his arrest, was exempt from arrest ; the plaintiff being entitled to retain the order with a view of making the arrest when the exemption expires. 15 Id. 290. CondMons imposed wpon vacating order.} Upon vacating an 94 ABEEST AND BAIL. [CH. ni. order of arrest, the court may grant the discharge conditionally^ upon the defendant's stipulating not to bring an action for the arrest, and the court will impose that condition where it is satis- fied there was no malice in causing the arrest, and that there was probable cause for it. 4 Ali. 47 ; Id. 102 ; 3 Duer, 656 ; 5 Id. 603 ; 13 Sow. 371 ; 3 Barb. 19; 16 JVew York, 446 ; 1 Barh. Ch. S. 274; SPai^e, 541. And where the court at general term exercised its discretion In imposing a stipulation not to sue for false imprisonment, as a condition of vacating an order of arrest ; it was held that that discretion would not be reviewed by the court below, or in another proceeding at a subsequent general term. 11 Abb. 415. Afpeals from order on motion to vacate^ The decision of the court, on the motion to vacate the order of arrest, may be re- viewed on appeal to the general term, Code, % 349; 8 Row. 353 ; but such appeal cannot be taken to the Court of Appeals. 1 Code E., N. S. 415. And an appeal may be taken from the order of a county judge vacating an order of arrest, although such order was made without notice to the plaintiff. 20 How. 421. The appeal from an order denying a motion to vacate will not be prejudiced by the entry of judgment against the defendant, and the bail becoming charged pending the appeal. 16 Abh. 451. On appeal from an order founded on affidavits showing a cause of action which in itself justifies an arrest, the court will presume, in the absence of the complaint, that the latter, in its statement of facts constituting a cause of action, pursues the affidavit on which the order was founded. 15 Ahb. 475. An order denying a motion to vacate an order of arrest, will not be reversed on ap- peal, merely because the original affidavit, on which the order of arrest was obtained, stated the facts on information and belief. 9 All. 106, s. c. 17 How. 353. Nor will the court, on appeal from a judgment, look into the question, whether a previous order, requiring the defendant to be arrested and held to bail in the action, was properly granted. 2 Bo^. 360. Appeals, from orders denying motions to vacate orders of arrest, are not to be encouraged ; particularly when the defend- CH. in.] ARREST AND BAIL. 95 ant is at large on bail 29 Ba/rh. 361 ; s. c. 17 Eow. 280 ; 8 All. 257. An order reducing the bail on an order of arrest is discretion ary, and will not, under ordinary circumstances, be interfered with on appeal. 15 All. 290. And where the justice granting the order of arrest has refused on application to reduce the amount of bail, another justice, before whom a motion is made to vacate the order of arrest, or to reduce the bail, founded upon new affidavits, should not reduce the bail, unless new facts are presented bearing on that question ; and the fact that, since the first motion, the defendant has been held to bail in a much smaller amount in a criminal proceeding on the same facts, is no reason why the bail should be reduced in the civU action. 6 Abl. 316. Execution against the person on final judgment^ If the action be one in which the defendant might have been arrested, as provided in § 179, and § 181, an execution against the the person of the judgment debtor may be issued to any county within the jurisdiction of the court, after the return of an exe- cution against his property unsatisfied in whole or in part. Code, §288. But no execution shall issue against the person of a judg- ment debtor, unless an order of arrest has been served, as pro- vided by the Code, or unless the complaint contaias a statement of facts showing one or more of the causes of arrest required by section one hundred and seventy-nine. II., as amended, Lanes 1862, j?. 850. And see notes to § 288, Voorhies' Code; andHoff. Pro. Rem. 101. 9d AEEE8T AND BAIL. [OH. HL' SUPPLEMENT TO CHAPTER III. Under the Code of Civil Procedure, just enacted, the arrest of any per- son in a civil action or special proceeding, is prohibited except as prescribed by statute. The new Code, also, makes material alterations in the practice on the subject of arrest and bail ; rendering obsolete much of the law in the recent decisions of the courts on that subject. Those decisions, however, are important, as enabling us the better to understand the new statute. The decisions, therefore, since the publication of the second edition of this work, ^re noted below ; and further on are given, in full, the sections of the new Code, as well as the Bevisers' Notes to the same. DECISIONS UNDER THE FORMER PRACTICE. The arrest of a defendant generaMy. The statates authorizing arrests, although remedial to the extent that they are designed to coerce payment, are iilso regarded as penal, and are not to be extended by construction so as to apply to oases not clearly within them. 55 N. Y., 93. Where the defendant is brought within the jurisdiction of the court by fraud, the creditors who did not participate in such fraud are, nevertheless, entitled to arrest him upon showing good cause for such arrest. 15 Abb. ,N. 8., 373. The courts of this State may, in an action brought here, order the arrest of a non-resident defendant for fraud, etc., although by the law of his place of residence he could not be arrest- ed there for that cause. 10 Id., 111. The writ of ne exeat has not been abolished. 4 Lans., 183 ; and see 54 Barb., 818. Otherwise, now, by the new Code of CivU Proc, seo. 548, post. Where the writ was issued it was held that it would not be dismissed for unimportant omis- sions which did not injure or prejudice the defendant. 7 Sun, 313. Non-resident defendant. A party may change his residence from this State to another, and where he makes no secret of his intention to do so, and it does not appear that he owes any debt but the one due to the plaintiflf, nor that he is not abundantly able to pay that, the fact that he had been disposing of his property with a view to that removal, does not tend to establish an intention to defeaud his creditors. 33 How. , 1. Counter-claim to demand for conversion. In an action to recover the value of chattels converted by the defendant, it is not ground for discharging an order of Arrest that the defendant has a claim for a larger amount against the plaintiff. 1 Mb., N. 8., 87. In an action for a libel, an order of arrest may be granted irrespective of the defendant's residence ; and where the defendant resides within the jurisdic- tion of the court, an order of arrest may be granted without proof that the de- fendant is about to depart. 13 Abb., N. 8., 258. In am action to recover possession cfpersmwl property, unjustly detained, and damages for the detention, an order of arrest may be granted under the third subdivision of section 179 of the Code; and the order may direct the defendant to be held to bail in a specific sum. 50 Barb. , 70, disapproving 9Bosw. , 636, so far as it conflicts with those views. lb., per Miller, J. The right to arrest depends not on the character of the cause of action, but on the question whether the de- fendant has I disposed of the property so that it could not be found by the sheriff, or with intent to defraud the plaintiff. 1 Abb., N. 8., 419. In such an action an order of arrest may be obtained, although before the action is brought the defendant has disposed of, and fully parted with the property. 9 Hua, 236. CH. ni.J AEEEST AND BAIL, 96-1 And if the plaiutiS obtains a portion of the property he does not thereby waive an order of arrest against the defendant for the recovery of the remainder, or for damages for its detention. 35 How., 210. Bemmal or coneedlmmt of property. An order of arrest will not be granted on showing the property has been removed or concealed by the defendant, merely; but it must be shown, also, that such removal or concealment was toith intent that it should not be tound or taken by the sheriff, or with the intent to deprive the plaintiff of it. 33 How., 87, and see 11 Abb., N. S., 333. Where a debtor, shortly before the maturity of his indebtedness, sold his property for less than its value to a relative, to be paid for conditionally, and refused afterwards to exhibit his books of account ; it was held, that there was sufficient evidence of a fraudulent disposal of his property, to entitle plaintiff to an order of arrest. 12 Abb., Jf. &, 353. Fraudulent representations. Where a person for the purpose of inducing another to contract with him, makes statements, affirmative in their character, positive ajid unequivocal, and not made upon information or belief, or as a matter of opinion, they must be regarded as designed to convey the impression that the person making them had actual knowledge of their truth ; and where such an impression is conveyed, by the defendant, he being conscious that he has no wich knowledge, and such statements are in fact false, the defendant thereby commits a fraud sufficient to authorize the granting of an order of arrest. 9 Ifun, 843. The provision of the Code (sub. i of % 179) applies only to actual personal fraud on the part of the defendant, and does not include merely legal or constructive fraud. 55 ilT. T. , 93. Fraud or deceit. Where the ground of action is fraud or deceit, the defen- dant's arrest will be ordered without reference to the question of his residence or of his intention to leave the State. 4 Bobertson, 637. Fraud barred by statute of limiiations. Where a debt was fraudulently in- curred, and subsequently, a note was given for it, and the note was kept alive by payments made upon it ; it was held that such payments did not revive or keep alive the fraud. 9 Sun, 145. Fiduciary capacity. To render a person liable to arrest under subdivision 3 of section 179 of the Code — relating to money received in a fiduciary capacity — the identical money received must be the property of the creditor. 6 Hun, 530. But when the complaint alleged that the defendant, as assignee for the benefit of creditors, had received a sum of money of which plaintiff was entitled to a share, by the terms of the assignment, and which share defendant neglected and refused to pay over upon demand made upon him; it was held, that a cause was shown authorizing an arrest of the defendant for the conversion of money re- ceived in a fiduciary capacity. 53 ^. Y., 360, reversing 4 Lans., 369, and see 1 Hun., 639 ; 10 Abb., N. S., 111. Commission merchants selling goods for con- signors on an agreement to guarantee the price on such sales, for a commission, do not receive the price in a fiduciary capacity within the meaning of the pro- visions of the Code ; and are not liable to arrest in an action by the consignors to recover the sums so guaranteed by them. 4 Abb., N. 8., 483 ; but compare 50 Barb., 288, lb. 2^. WJien female may be arrested. Females are exempted from arrest in all civil cases, except, where the injury to property is siffirmatively shown to be wilful ; where the defendant, a female, induced a clerk in the employment of the plaintiffs to take from them certain gold certificates and deliver the same to her, which she wilfully converted or concealed from the plaintiffs ; it was held that she was guilty of a wilful injury to their property. 6 Hun, 1. Order of a/rrest when granted. Under the Code an order of arrest may be ob- tained in two classes of cases ; in those, where the cause of action is identical with the cause of arrest, and in those, where facts delwrs the cause of action constitute the cause of arrest. 45 N. Y. 349. Where two separate causes of ac- tion are joined in a complaint, an order of arrest will not lie, unless there is a right of arrest upon the entire claim of the complaint ; as where an order of arrest is sought in an action brought to recover a balance due on a running account, made up in great part of items entirely free from fraud. 3 Hun, 317 ; and see 53 N. Y., 640 ; 3 Hun, 151. 96-2 AEEEST AND BAIL. [OH. m. Defendant cannot be arrested twice for same cause. Where an order of arrest U obtained in an action on contract, on wMch the defendant is arrested, his sub- sequent exoneration from imprisonment under the provisions of 2 ijetj. Stat., 30, sec. 10 (post, p. 541), precludes the plaintifE from obtaining a second arrest in an action sounding in tort, but founded on the same transaction as the alleged cause of action on contract. 1 Abb., N. S., 438. And see to the same efieot, Id., 433. But where the plaintifE has been nonsuited in a former action, the defendant may be arrested in a second action for the same cause, by the same plaintifE. 6 Bun, 882. So, if the former action was discontinued, and the second arrest is not vexatious, lb. Arrest and attachment in same action. An order of arrest and a warrant of attachment may be simultaneously issued in the same action, but the arrest of the defendant and the seizure of his property to tSbefuU amount of plaintiff's claim, will not be allowed. 5 Hun, 382, and see 56 JV\ T., 456. See the present practice under the new code of Civil Procedure, § 719, post. Sufficiency of affidamts. On a motion to vacate made upon the original papers only, if the necessary facts are positively sworn to in the plaintiff's affidavit, and if deponent can have had knowledge of them, the court will not vacate the order on the ground that the statements which it contains were probably not within his knowledge. 3 Abb., iV". S., 122. A verified complaint may be used as an affidavit, when presented with other affidavits. 59 iV. F. , 647. Suffleiencff of evidence. If the order of arrest is founded upon the nature of the cause of action itself, and not upon extrinsic facts, the court wiU not, in general, vacate the order upon affidavits denying the cause of action. Thoiigh otherwise, it seems, if all doubt is removed, and the state of facts shown would warrant the judge in directing a nonsuit at the trial. 3 Abb., JT. 3., 270, and sea 3 Bobertson, 702. So, the court will deny the motion where a material question of fact only, upon which the arrest is founded, is controverted by the affidavits of the respective parties. The court will not try such a question upon affidavits. 31 How., 379. A marshal of the city of New York, is the proper person to serve an order of arrest issued by the Marine Court of that city. 13 Abb., N 8., 293. Bail when given. Bail may be given after execution is issued against the prop- erty of the defendant; the execution intended by section 186 of the Code, being an execution against the person. 57 i\7'. T., 583. The defendant may give bail whenever arrested, at any hour of the day or night ; and is entitled to reasonable opportunity to procure it before being committed to prison. Laws of 1870, p. 1833, amending section 186 of Code. The amount of bail to be required should be equal to the amount which, in the end, the sureties may be called upon to pay to satisfy the judgment. 5 Bun. 383; S. p., 13 Abb., JV. 3., 148; 2b. 258. Qudlifleations ofbaU. The fact that persons offered as bail have received transfers of property, vrithout consideration from friends of the defendant, to enable them to qualify as bail, is not an objection to them ; though otherwise it seems if the transfer was made by the defendant. 14 Abb., N. 8., 28. Deposit in lieu of bail; motion to refund. Where money is deposited in lieu of bail, a motion to refund the same, pursuant to section 197 of the Code of Procedure, cannot be made untU after bail has been given and justified^ 3 Abb., Jf. 8., 389. And where, upon the issuing of an order of arrest, the defendant makes or procures to be made a deposit of money in lieu of giving bail, and the money remains on deposit up to the time when the plaintiff obtains judgment in the action, the plaintiff is entitled to have it applied in satisfaction of such judg- ment, lb. The fact that such money was the property of a third person, and was deposited under a special receipt stipulating that it should be returned on the surrender of the defendant, can make no difference A deposit in lieu of baU, from whatever source derived, must be treated, as between plaintiff and defendant, as the property of the defendant. lb. But as between the plaintiff and a third person making the deposit, the plaintiff must clearly establish his claim to have the money deposited applied to the satisfaction of the defendant's debt : and no intendments will be indulged in its favor. 45 If. T., 393. Smrender of principal by bail. Where the bail upon an order of arrest have OH. in.] ARREST AND BAH. 96-3 taken indemnitj, they will not be allowed to surrender their principal, unless it is afBrmatively shown that such indemnity is of no value, 7 Hun, 298. •Liability of sheriff as bail. The liability imposed upon the sheriff by section 301 of the Code is not absolute ; his Uability is that of bail, with all its privilegeg and qualifications. 59 N. T., 310. Action by sheriff against baU. TTutil the sheriff has sustained damage by reason of the liability as bail imposed on him by law, as a consequence of the failure of the defendant to justify or put in other bail, he has no right of action under section 203 of the code of procedure. 44 Barb., 9. An attorney cannot be surety for a party arrested. Sup. Court Bules, No. 8. Bail wTien liable. Where two defendants were arrested, and an undertaking given to procure their discharge, it was held that the arrest and imprisonment of one of the defendants upon an execution against the person of both did not relieve the bail from their liability for the escape of the other defendant. 8 Hun, 630. If the taking of an undertaking to discharge from arrest is irregular by reason of bail having been given after execution issued against property, it is an irregularity of which the defendant or his sureties cannot take advantage in an action upon the undertaking. 57 N. Y. , 583. Motion to vacate order of arrest. The right to apply on motion to be dis- charged from arrest is secured to all persons arrested under orders in civil actions; and the defendant may, at any time before judgment, obtain his dis- charge from arrest and imprisonment, upon proof that he is entitled to such discharge, whether the alleged facts upon which he was arrested form part of the cause of action or not. 7 Hun, 195. Where the cause of action is identical with the cause of arrest, the defendant may contest the right to arrest, either upon a preliminary motion to vacate the order, or upon the trial of the action, provided the plaintiff at such time is permitted to abandon his cause of action as aUeged. 45 N. T.. 849; 8. C, 10 Abb., N. 8., 238. In actions of tort, the truth or falsity of the charges upon which an order of arrest has been granted should never be decided upon a motion to vacate the order. 54 Barb. , 630, and see 10 Abb., N. 8., 55; 13 Id., 358. Imperfection in the copies of the order of arrest, and the papers upon which it was granted, are notgrounds for vacating the order, providing the originals are perfect. 5 Hun, 634. Where a prima facie case is made upon affidavits, authorizing the issuing of an order of arrest, the failure or neglect of the defendant to answer or explain his connection with the transaction will be a sufficient ground to deny the motion to vacate the order. 3 Hun, 883; and see 5 Hun, 383 ; 11 Abb., N. 8., 235 ; 12 Id, 353. • WJien motion to vacate can be made. The motion to vacate an order of arrest may be made after judgment, if made within twenty days after the service of the order. 86 How., 179. The judgment is not perfect until entered in the judgment book, and therefore a motion to vacate an order of arrest can be made without reference to the time when an inquest was taken in the action, lb., 137. In action for criimnal conversation, the court will not vacate an order of arrest upon the ground that the guilty acts charged against the defendant are alleged to have been committed under circumstances rendering the charge highly improbable, and that the charges are denied by the defendant. 3 Abb., N. 8., 271. The practice of referring motions to vacate orders of arrest, is held to be objectionable ; and that such motions should be determiaed by the judge upon the affidavits presented. 1 Abb., N. 8., 37. Benewai of motion to vacate. A right given to a defendant to renew a motion (once' denied) to vacate an order of arrest, does not of itself extend the time within which to apply to vacate such order. 2 Hun, 347. And a motion to vacate an order of arrest, once denied, cannot be renewed as a matter of right, except upon a different state of facts arising subsequent to the decision of the former motion. S Hun, 624. 96-4 AEEEST AND BAIL. [CH. III. THE NEW PEACTICE XTNDBE THE CODE OP CIVIL PEOCEDUKE. The following are the sections of the Code of Civil Procedure, on the subject of arrest as a proyisional remedy, and the material notes of the Revisers, as found in Laws of 1876, Vol. II., p. 305. Those sections (exclud- ing § 548) apply only to an action in the Supreme Court, a Superior City Court, the New York Marine Court, or a County Court, in which an applica- tion for arrest is made after the sections took effect. See the " Temporary Act." Laws 1876, Gh. 449, Vol. II., p. 292, mb. 5. § 548. [^m'(i 1877.] TJie proMUtion against a/rrest. Ne exeat abolished. A person shall not be arrested in a civil action or special proceeding, except as prescribed by statute. The writ of ne exeat is hereby abolished. [Co. Proc, § 178 , amended by expressly abolishing the writ of ne exeat. The qnefltioa whether this writ has been abolished by the Code is still open, although many cases hare held that it is retained. Even if the question was free from doubt, it would be our duty to remove the anomaly of retaining, in this particular case, a remedy so inconsistent with the principles of the existing prac- tice, and the remedies allowed in analogous cases. We have accordingly provided an order of aiTest, as a substitute for the writ of ne exeat ; the case added to the existing statute, for that purpose, being specified in our § 550, which, it is believed, covers every case where a ne exeat could issue in chancery. See 1 Barb. Ch. Pr., 647, 651, 652 ; 3 Johns, Ch. B., 76. Rev. Notes, Laws of 1876, Vol. II., p. 805.] § 549. [Ani'd 1877.] When the right to arrest depends upon the nature of t7ie action. A defendant may be arrested in an action, as prescribed in this title, where the action is brought for either of the following causes : 1. To reco-ver a fine or penalty. 3. To recover damages for a personal injury ; an injury to property, includ- ing the wrongful taking, detention, or conversion of personal property ; breach of a promise to marry ; misconduct or neglect in office, or in a professional em- ployment ; fraud ; or deceit. But this subdivision does not apply to a claim for damages in an action to recover a chattel. 3. To recover money, funds, credits or property, held or owned by the State, or held or owned, officially or otherwise, for or in behalf of a public or govern- mental interest, by a municipal or other public corporation, board, officer, custo- dian, agency, or agent, of the State, or of a city, county, town, village or bther division, sub-division, department, or portion of the State, which the de- fendant has, without right, obtained, received, converted or disposed of ; or to recover damages for so obtaining, receiving, paying, converting or disposing of the same. [See Note to § 550, post. A " personal injury" includes libel, slander, criminal conversation! seduction, and malicious prosecution ; also, an assault, battery, false imprisonment, or other action- able injury to the person of the plaintiff, or his or her wife, husband, child, or servant. Laws 1876, Ch. 449. Vol. 2,7?. 291, sub. 8. An '* injury to property" is an actionable act, whereby the estate of another is lessened, other than a personal injury, or the breach of a contract. /*., sub. 9,] § 550. [Am'd 1877, ch. 416 and 422.] When the right to arrest depends partly ypon extrinsic facts. A defendant may also be arrested as prescribed in this title, in either of the following cases : 1. In an action to recover a chattel, where the chattel, or a part thereof, has been concealed, removed, or disposed of, so that it cannot be found or taken by the sheriff, and with intent that it should not be so found or taken, or to deprive the plaintiff of the benefit thereof. 3. In an action upon contract, express or implied, other than a promise to marry ; when the defendant has been guilty of a fraud in contracting or incurring the liability ; or has, since the making of the contract, or in contemplation of making the same, removed or disposed of his property with intent to defraud his creditors ; or is about to remove or dispose of the same, with hke intent. 3. In an action to recover for money received, or to recover property, or dam- ages for the conversion or misapplication of property, where the money was received, or the property was embezzled, or fraudulently misapplied, by a public OH. in.] AEEEST AITO BAIL. 96-5 officer, or by an attorney, soUoitor or counsellor, or J)y an officer or agent of a corporation or banking association, in the course of his employment, or by a factor, agent, broker or other person in a fiduciary capacity. But this subdivi- sion does not apply to an action to recover a chattel. 4. In an action wherein the judgment demanded requires the performance of an act, the neglect or refusal to perform which would be punishable by the court as a contempt, where the defendant is not a resident of the State, or, being a resident, is about to depart therefrom, by reason of which non-residence or departure there is danger that a judgment or an order requiting the performance of the act wUl be rendered ineffectual. [These sections (§§ 549, 550) are so framed, as to clearly distin^ish between the cases, where the right to arrest the defendant depends upon the nature of the action, and where it arises out of a fact, extrinsic to the cause of action. Section 550 collects the cases of the latter description. Under it, a disposal of property, to defraud creditors, must have been made since the making of the contract Bued upon, and an arrest, upon this ground, can occur only in an action upon contract ; a substitute for the wi-it of ne exeat is provided (subd. 4 ; and see also, | 551) ; and Co. Proo., § 179, subd. t (unie p. 58), except the first dine, is- remodelled, so as to remove obscurities, Bev. Noiea.'] ^ 551. [Am'd 1877, ch. 416 and 432.] Order when and where granted; when of right, and when discretionary. In a case specified in subdivision fourth of the last section, the order of arrest can be granted only by the court, is always in its discretion, and may be granted or served, either before or after final judginent, unless an appeal from the judgment is pending, upon which security has been given, sufficient to stay the execution thereof. In either of the other cases specified in the last two sections, the order cannot be served after final judg- ment ; but it may be granted, where a proper case therefor is presented, at any time before final judgment. [This section contains various new provisions, regulating an order of arrest, as a substitute for a »ie exeai. It provides tLat such an order can be granted only by the court ; that it is discretionary ; and that it can be made or served after judgment, except pending an appeal from the latter, where a stay has been obtained by security. Bev. J^otes.'] § 553. Foreign judgment not to affect rigM to a/rrest. The recovery of judgment in a court, not of the State, for the same cause of action ; or, where the action is founded upon fraud or deceit, for the price or value of the property obtained thereby does not afEect the right of the plaintiff to arrrest the defendant, as pre- scribed in this title. [New provision, settling a point upon which the authorities are in conflict, whether a foreign judgment prevents an arrest, in this State, in an action relating to the same cause of action. ReVt Jfotes.] § 553. [Am!d 1877.] Women not to he airrested, except, etc. A woman cannot be arrested, as prescribed in this title, except in a case where the order can be granted only by the court ; or where it appears, that the action is to recover damages for a wilful injury to person, character, or property. [Code of Pro., § 179, last clause (ante, p. 68, 71) ; 6 Hun, 1 ; 3 Abb. Pr. K., a59.] §554. {AnOd 1877.] Idiot, etc., or infant under fourteen, years, if arrested, to be discharged. A lunatic, an idiot, or an infant under the age of fourteen years, if arrested, may be discharged from arrest, as a privileged person, in the discretion of the court. The application for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him for the purpose. [New provision, forbidding the arrest of an idiot, a lunatic, or an infant under fourteen years. Bev. Notes.'] § 555. Persons sued in a representative capacity, not to be arrested. A person prosecuted in a representative capacity, as heir, executor, administrator, lega- tee, devisee, next of kin, assignee or trustee cannot be arrested, as prescribed in this title, except for his personal act. §556. [Am'd 18^^.] Order required for arrest ; how granted. An order for the arrest of the defendant, except as otherwise prescribed in section five hun- dred and fifty-one of this act, must be obtained from a judge of the court in which the action is brought, or from any county judge. [Code of Pro., § 180, ante, p. 74.] § 557. [Am'd 1877.] Proof necessary to procure order. The order may be granted where it appears by the affidavit of the plaintiff, or of any other per- 96-6 a:::irest Ain) bail. [ch. iil son, that a sufficient cause of action exists, and that the case is one of those men- tioned in the last preceding article. The affidavit may also contain any state- ment tending to determine the amount of hail to be required. [Code of Pro., S 181, ante, p. 74.] §558. [Am'd ISn.] When order may be granted/ effect of complaint sub- sequenel/y m/ide. Subject to the provisions of the last preceding article, the ordet may be granted at any time, after the oommeucement of the action. It may also be granted, to accompany the summons. But at any time after the filing or service of the complaint, the order of arrest must be vacated on motion, if the complaint shows that the case is not one of those mentioned in section 549 or 550 . of this act. §559. Becurity, upon order fff arrest made iy judge. Except where the action is brought for a cause specified in subdivision third of section 549 of this act, or in a case where it is specially prescribed by law that security may be dispensed with, or the security, to be given is specially regulated by law, the judge, before he grants the order, must require a written undertaking, on the part of the plain- tiff, with or without sureties, to the effect, that, if the defendant recovers judg- ment, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum specified in the undertaking, which must be at least one hundred dollars. [§ Code of Pro., § 182, ante, p.77.] I 560. Security upon order of arrest granted by the court. Where the order cSfJ be granted only by the court, an undertaking on the part of the plaintiff may be dispensed with. If it is required, its form and the security to be given thereupon must be such as the court prescribes. [New provision, allowing the court to dispense with security to obtain an order of arrest, where it is a substitute for a ne exeat. Rev. ITotes.] § 561. [Am'd, 1877.] Contents of the order ; to whom directed ; when to be. executed. The order must be subscribed by the plaintiff's attorney, and, except where it is granted by the court, by the judge. It may be directed either to the sheriff of a particular county, or, generally to the sheriff of any county. It must require the sheriff forthwith to arrest the defendant, if he is found within his county ; to hold him to bail in a specified sum, and to return the order, witi his proceedings thereunder, as prescribed by law. The plaintiff's attorney may, at his option, by an indorsement upon the order, or, where it was granted by thl court, upon the copy thereof, delivered to the sheriff, fix a time within which the defendant must be arrested. In that case he cannot be arrested afterwards under the same order. [Code of Pro., § 183, ante, p. 79.] §562. Oopiesof papers to be delivered to defendant; originals to be JUed. The order of arrest, or where it was granted by the court, a certified copy thereof, subscribed by the plaintiff's attorney, and, in either case, the papers upon which the order was granted, must be delivered to the sheriff, who, upon arresting th defendant, must deliver to him a copy thereof. The papers upon which th ordef was granted must be filed with the order of arrest, or a certified copy thereof, at the time prescribed for filing the same, in sections 577 and 590 of this act. [Code of Pro., % 184, antt, pp. 79, 80.] § 563. Arrest; how made. The sheriff must execute the order by arresting the defendant, if he is found within his county, and keeping him in custody until discharged by law. [Code of Pro., §§ 184, 185, ante, pp. 79, 80.] § 564. General provisions as to privilege from arrest ; discharge of privileged person. This title does not abridge or affect a privilege from arrest given bylaw, or a right of action for a breach thereof. A privileged person is entitled to be discharged from arrest where other provision is not m^e therefor by law, by the court, or a judge thereof, or by the county judi^e of the county, or a judge of a superior city court of the city where the arrest was made. The order must be'made, upon proof, by affidavit, of the facts entitling the applicant to the dia- CH. in.] AEEEST AND BAIX. 96-7 charge ; and the arrest and discharge are not a bar to a new arrest after the privilege has ceased. The court or judge may make the order without notice, or may require notice to be given to the Sieriff, or to the plaintiff, or to both. [New provifdons, incieaBing the nnmber of offlcers who may discharge from arrest a privileged person. Jiev, Jfotes.] §565. Privilege of officers of courts . An officer of a court of record, ap- pointed or elected pursuant to law, is privileged from arrest, during the actual sitting, which he is required to attend, of a term of the court of which he is an officer, and no longer ; but an attorney or counsellor is not thus privileged, unless he is employed in a cause to be heard at that term. § 566. Defendant arrested to home twenty days to answer. Exfcept where an order of arrest can be granted only by the court, a defendant, arrested before answer, has twenty days after the arrest, in which to answer the complaint; and judgment must be stayed accordingly. § 567. [Arn^d 1877.] When application to he made to vacate order of arrest, etc. Except where an order of arrest can be granted only by the court, a de- fendant, arrested as prescribed in this title, may, at any time before final judg- ment, or if he was arrested within twenty days before final judgment, at any time within twenty days after the arrest, apply to vacate the order of arrest ; or to reduce the amount of bail ; or to increase the security given by the plaintiff ^ or for one or more of those forms of relief together, or in the alternative. In a case where the order of arrest can be granted only by the court, a like applica- tion may be made at any time within twenty days after the arrest ; and an ap- plication to increase the security given by the plaintiff, may be made at any time before final judgment. [See Note to § 568, post.] § 568. [Am'd 1877.] How and to whom motion must be made ; opposing it hy new proofs. An application, specified in the last section, may be founded only upon the papers upon which the order was granted ; In which case it must be made to the court, or, if the order was granted by a judge out of court, to the same judge, in court or out of court, and with or without notice, as he deems proper, and the application must be heard upon those papers only. Or it may be founded upon proof, by affidavit, on the part of the defendant ; in which case it must be made to the court, or; if the order was granted by a judge, out of court, to any judge of the court, upon notice ; and it may be opposed by a new proof, by affidavit, on the part of the plaintiff, tending to sustain any ground of arrest recited in the order, and no other, unless the defendant relies upon a dis- charge in bankruptcy, or upon a discbarge or exoneration, granted in insolvent proceedings ; in which case the plaintiff may show any matter in avoidance thereof, which he might show upon the trial. [Co. Proc, § 204 (ara/e, p. 90). allowing the defendant to move to vacate the order of arrest, or reduce the bail, extended to cases arising under our substitute for a ne exeat. Id., § 205, touching afBdavits, upon a motion to vacate an order of arrest, expanded, by prescribing before whom the motion may be made in each particular case : and amended, by adding that where the defendant relies upon a bankrupt's or insolvent discharge, the plaintiff may avoid the discharge, as upon a triaL Sev. Notea.l § 573. [Am'd 1877.] Sivpersedeas, unless defendant is charged in execution, etc. Except in a case where an order of arrest can be granted only by the court, if the defendant is in actual custody, by virtue of an order of arrest in the ac- tion, and the plaintiff neglects to enter judgment in the action, within one month after it is in his power to do so ; or neglects to issue execution against the person of the defendant, within three months after the entry of judg- .ment ; the defendant must, on his application, made upon notice to the plain- tiff, be discharged from custody by the court in which the action was com- menced, or by a judge thereof, within the county where the defendant is in custody ; unless reasonable cause is shown why the application should not be granted. A defendant, discharged as prescribed in this section, shall not be ar- rested, upon an execution issued upon a judgment in the action. [Co. Proc., § 288, last sentence (amte, p. 95), providing for the discharge from arrest of a jud^ ment debtor, where the judgment creditor fails to charge him in execution, amended, by allowing the application for the discharge to be made to any jndge of the court within the couniy where tha debtor is in custody. See 2 Abb. Pr., 20. Bev. ffote*.! 96-8 AEEEST AND BAIL. [CH. m. § 573. ly^mdxmt to be discharged on bail or deposit. The defendant, at any time before he is ui contempt, where the order can be granted only by the court, or, in any other case, at any time before execution against his person, must be discharged from arrest, either upon giving bail, or upon depositing the sum speci- fied in the order of arrest. The defendant may give bail, or make the deposit, immediately upon his arrest, at any hour of the day or night ; and he must have reasonable opportunity to seek for and to procure bail, before being committed to jail. [Oo. Proc, § 186 (ante, p. 80), allowing » defendant arrested to give bail or deposit at any time before " execution," amended by adding after the last mentioned word, the words, " against hig person," in accordance with the supposed meanmg of the provision. Bev. Noiea, and see 57 Sf. Y,, 688.]" § 574. "When defendant may elect to give bail, etc., or bond for jail liberties. Where the defendant is actually confined in the jail, by virtue of an order of airest, amd final or interlocutory judgment has been rendered against him in the action, but an execution against his person has not been issued, he may elect,, either to give a bond for the liberties of the jail, or to give bail, or make a de- posit, as prescribed in this article. [ITew provision, allowing an arrested defendant to elect, after judgment and before execution' against his person, whether to give bail or a bond for the liberties ; inserted to check an existing '^buse, as some sheriffs now refuse to take the former, during that period. Rev. yoten.'l §575. Undertaking of the bail; what to contain. The defendant may give bail by delivering to the sheriff a written undertaking, in the sum specified in the order of arrest, executed by two or more sufficient bail, stating their places of residence and occupations, to the following effect : 1. If the order of arrest could be granted only by the court, that the defend- ant will obey the direction of the court, or of an appellate court, contained in an order or a judgment, requiring him to perform the act specified in the order ; or, in default of his so doing, that he will at all times render himself amenable to proceedings to punish him for the omission. 3. If the action is to recover a chattel, that the defendant wiU deliver it to the plaintiff, if delivery thereof is adjudged in the action, and vrill pay any sum recovered against him in the action, 3. In any other case, that the defendant will at all times render himself amen- able to any mandate which may be issued to enforce a final judgment against him in the action. LCo, Proc, § 187 (awie, p. 81), providing for the undertaking of bail, extended to a case arising under our substitute for a ne exeat ; amended so as to be applicable to an action to recover a chattel, by rendering the amount of the undertaking dependent on the sum specified in the order of arrest : and by oontining the undertaking, that the defendant will render himself amenable to process, to final process, except where the order was a substitute for a ne exeat. Rev. Notes.'\ § 576. [Am^d 1877.] Examination of persons offered as bail. The officer tak- ing the acknowledgment of the undertaking must, if the sheriff so requires, examine under oath, to a reasonable extent, the persons.offering to become bail, concerning their property and their circumstances. The examination must be reduced to writing, subscribed by the baU, and annexed to the undertaking. § 577. Filing, etc., of the papers. Within three days after bail is given, the sheriff must file with the clerk the order of arrest, with his return thereon in- dorsed ; the papers upon which the order of arrest was granted ; and the under- taking of the bail. Within the same time he must deliver to the plaintiff's at- torney copies certified by him of the order of arrest, return, and undertaking. The plaintiff's attorney, within ten days thereafter, must serve upon the sheriff a notice that he does not accept the bail ; otherwise he is deemed to have ac- cepted them, and the sheriff is exonerated from liability. Where an order of arrest, directing the arrest of two or more defendants, has been executed as to some, but not as to all of them, the sheriff' may file a copy of the order of arrest, instead of the original. [Co. Proc, § 192 iante, p. 81), requiring the sheriff to retnm an order of arrest, etc., to the plaintiff's attorney, amended by requiring him to file the original papers with the clerk, in accord- dance with the rule, and to deliver copies to the attorney ; and by allowing him, where the order is against two or more defendants, and it is not executed as to all, to file a copy of the order. Instead of the original. Rev. Nolei.] CH. m.] ARREST AND BAIL. 96-9 § 578. Notice of justification ; undertaking if other bail is given. Within ten days after the receipt of the notice the sheriff or the defendant may serve upon the plaintiff's attorney notice of the justification of the same or other bail, speci- fying the place of residence and occupation of each of the latter, before a judge of the court, or a county judge, at a specified time and place ; the time to be not less than five nor more than ten days thereafter, and the place to be within the county where one of the bail resides, or where the defendant was arrested. If other baU are given, a new undertaking must be executed, as prescribed in section 575 of this act. [Co. Proc., § 193 (ante, p. 81, 82), providing for the justificatioii of bail, amended by requiring, according to Rule 8, the examination to take place in tbe coimty where one of the bail resides, or where the arrest was made. Beo. Notes.'] §579. QvMiflcations of baU. The qualifications of bail are as follows : 1. Each of them must be a resident of, and a householder or freeholder within the State. 2. Each of them must be worth the sum specified in the order of arrest, ex- clusive of property exempt from execution ; but the judge, on justification, may allow more than two bail to justify, severally, in sums less than that specified in the order, if the whole justification is equivalent to that of two sufficient baU. [Code of Pro., § 194, aTiie, p. 88.] § 580. Juslification of bail. For the purpose of justification, each of the bail must attend before the judge, at the time and place mentioned in the notice, and be examined on oath, on the part of the plaintiff, touching his sufficiency, in such manner as the judge, in his discretion, thinks proper. The judge may, in his discretion, adjourn the examination from day to day, until it is completed, but such an adjournment must always be to the next judicial day, unless by consent of parties. If required by the plaintiff's attorney, the examination must be re- duced to writing, and subscribed by the bail. [Code of Pro., § MS, ante, p. 83.] § 581. AUoioance of bail. If the judge finds the bail sufficient, he must annex the examination to the undertaking, indorse his allowance thereon, and cause them to be filed with the clerk. The sheriff is thereupon exonerated from liability. [Code of Pro., § 196, ante, p. 83.] § 583. Deposit ofmcmey with sheriff. The defendant may, instead of giving bail, deposit with the sheriff the sum specified in the order. The sheriff must thereupon give the defendant a certificate of the deposit, and discharge him from custody. [Code of Pro., § 197 {ante, p. 84), allowing a deposit in lieu of bail, amended by omitting the lim- itation that tbe defendant must make the deposit *' at the time of his arrest." Rev. Notes.] % 58-3. Payment of deposit into court by sheriff. The sheriff must, within four days after the deposit, pay it into court. • He must take from the officer receiv- ing it two certificates of the payment, one of which he must deliver to the plaintiff, and the other to the defendant. For a default in making the payment, the official bond of the sheriff may be prosecuted, as in any other case of de- linquency. § 584. Substituting bail for deposit. If money is deposited, as prescribed in the last two sections, bail may be given, and may justify upon notice, at any time before the expiration of the right to be discharged on bail. Thereupon the judge before whom the justification is had must direct, in the order of allow- ance, that the money deposited be refunded to the defendant or his representa- tive, and it must be refunded accordingly. [See note to § 585pojrt.] § 585. Bmo deposit disposed of. If money deposited is not refunded, as pre- scribed in the last section, it is, in a case where the order of arrest could be granted only by the court, subject to the direction of the court, as justice requires, before and after the judgment. In any other case, if it remains on deposit, when final judgment is rendered for the plaintiff, it must be applied, under the direction of the court, in satisfaction of the judgment ; and the sur- plus, if any, must be refunded to the defendant or his representative. If the Vol. 1— « 96-10 ARREST AND BAIL. [CH. m. final judgment is for the defendant, or the action abates, or is discontinued, the sum deposited, and remaining unapplied, must be refunded to the defendant or his representative. [Code of Pro,, §§ 199, 2O0 (OTiie, p. 84), allowing bail to be snbstitnted for a deposit, and regnlat- ing the application of the deposit, amended, by allowing Buch a substitution, at any time before the right -to give bail expires, instead of "at any time before judgment," and by providing for the application of the deposit, where the arrest was made under our substitute for a ne exeat, or where the defendant dies. Sev. ^otea,'] § 586. When deposit to be paid to a thwd person. At any time before the deposit is paid into court, the defendant may deliver to the sheriff a written direction, to pay it to a third person, therein specified, in the event that the defendant becomes entitled to a return thereof, but without expressing any other contingency. The direction must be acknowledged or proved, and certi- fied, in lifee manner as a deed to be recorded, and the sheriff must deliver it to the officer who receives the deposit, who must note the substance thereof, with the entries of the deposit, in his books, and upon the two certificates of payment into court. The money thus deposited is deemed the property of the third per- son, subject to the plaintiff's interest therein, and subject to the rights of a cred- itor of the defendant, where the direction waa given for the purpose of hindering, delaying, or defrauding creditors. The money, or the residue thereof, must be paid to the third person, where, by the provisions of the last two sections, it is required to be refunded to the defendant, or his representative. [New provision, protecting a deposit in lieu of bail, advanced by a third person, for the defend- ant, from attachment, etc., against the property of the latter. See 6 Abb. Pr., 191 ; 8 Abb., N. 8., 155, Men. Notes.\ § 587. [.4to'(Z, 1877.] Sheriff, when liable as bail; his discharge from liability. If after the defendant is arrested, he escapes or is rescued, or the bail, if any given by him, do riot justify, when they are not accepted, or if the sheriff fails to pay the deposit into court as required by section 583 of this act, the sheriff is liable as bail. But the sheriff may, except in an action' to recover a chattel, discharge himself from liability, by the giving and justification of bail, as fol- lows : 1. If the case is one where the order could be granted only by the court, at any time before the court directs the performance of the act specified in the order. 2. In any obher case, at any time before an execution is issued against the person of the defendant, upon a judgment in the action. [Code of Pro., § 201 [ante, p. 89, 90), allowing the sheriff, where he has become liable as bail, to give bail accordingly, amended by excepting an action to recover a chattel (48 isr. Y., 143), and by specifying the time after which he cannot give bail, in analogy to the like privilege of a defendant arrested. Rev.Notes,] % 588. Proceedings on judgment against sheriff. If judgment is recovered against the sheriff, upon his liability as bail, and an execution thereon is returned wholly or pajtly unsatisfied, the ofiacial bond of the sheriff may be prosecuted, as in any other case of delinquency. § 589. BaU liable to sheriff. The baU taken upon the arrest, unless they jus- tify, or other bail are given and justify, are liable to the sheriff for all damages which he sustains by reason of the omission. §590. Filing papers if bail not given. If the defendant does not give bail, withm ten days after he is arrested, the sheriff must ffle with the clerk the order of arrest, with his return thereon indorsed, and the papers upon which the order of arrest was granted. .5 . ENi^w provision, requiring the sheriff to file papers upon an arrest with the dork, where the defendant does not give bail m ten days. Bev. Notes.] § 591. When, defendant may be surrendered. Except in an action to recover a chattel, the bail may surrender the defendant in their own exoneration, or the defendant may surrender himself in exoneration of the baU, before the expira- tion of the time to answer, in an action against them. The surrender must be made to the sheriff of the county, where the defendant was arrested. [Code of Pro., 5 188 {ante, p. 85), first and last clauses. aUowing a surrender of a defendant, in exoneration of his baU, amended by excluding an action to recover a chattel, and by making the OH. nx] AREEST AND BAIL. 96-11 § 592. Sow surrender to be made; exoneration oflaU thereupon. Where the bail surrender the defendant, the surrender must be made in the following manner : 1. They must take the defendant to the sheriff, and require Mm, in writing, to take the defendant into his custody. 2. A certified copy of the undertaking of the bail must be delivered to the sheriff, who must detain the defendant in his custody thereupon, as upon the original mandate, and must, by a certificate in writing, acknowledge the sur- render. Upon the application of the bail, made upon notice to the plaintiff's attorney, and upon production of the sheriff's certificate and a copy of the undertaking, a judge of the court, or the county judge of the county where the action is triable, may make an order, directing that the bail be exonerated. On filing the order and the papers used on the application therefor, the bail are exonerated accordingly. §593. [4m'dl877.] Bail may arrest defendant. For the purpose of sur- rendering the defendant, the bail, at any place or at any time before they are finally charged, may themselves arrest him, or, by written authority, indorsed on a certified copy of the undertaking, may etrpower another person to do so, and one or more of the bail may thus arrest and surrender the defendant, although the others do not join with him or them, for that purpose. _ [Code of Pro., § 189 (ante^ p. 85), allowing bail to arrest a defendant, for the purpose of enrren- dering him, amended, by allowing the arrest to be made without the State, and by one only of the bail. See 7 Bow. P., 213. Bev. Notes.l § 594. Voluntary surrender ; exoneration of bail thereupon. Where the de- fendant surrenders himself in exoneration of his baO, he must present himself to the sheriff, and require the sheriff, in writing, to take him into custody, in^ exoneration of his bail. The sheriff must detain him accordingly, as prescribed in subdivision second of section 592 of this act ; and if requested by the bail, an any time after the surrender, the sheriff must, by a certificate in writing, ac- knowledge the surrender. An order for the exoneration of the bail may be pro- cured, as prescribed in section 592 of this act. [New proTimons regulating a volnntary surrender by a defendant in exonoratlon of hie bail. Sev. Xoten.] § 595. Rights, etc., of sTieriff who is liable as bail. Where the sheriff is liable as baU, he has all the rights and privileges, and is subject to all the duties and liabilities of bail ; and bail given by him, in order to discharge himself from liability, must be regarded as the bail of the defendant in the action. But this , section does not apply to an action to recover a chattel ; or to a case where a de- fence arises to an action against the bail, in consequence of an act or omission of the sheriff. [New provision, regulating the rights, etc., of a sheriff who is liable as bail, and of bail given by him in his own exoneration ; in accordance with the decisions. Bev. Note8.'\ § 596. BaU; how proceeded against. In case of failure to comply with the undertaking, the bail may be proceeded against by action, and not otherwise. § 597. Certain executions necessa/ry before action against bail. An action may be brought, as prescribed m the last section, in a case where the order of arrest could be granted only by the court, at any time after the bail have failed to com- ply with their undertaking. Where the undertaking was given in an action to recover a chattel, an action may be brought thereupon, at any time after the return, wholly or partly unsatisfied, of an execution for the delivery of the pos- session of the chattel, with respect to which the order of arrest was granted. In any other case, an action cannot be brought, as prescribed m the last section, until the following requisites have been complied with : 1. An execution, agaiust the property of the defendant, must have been issued to the sheriff of the county in which he was arrested, and returned by that sheriff, wholly or partly unsatisfied. 2. An execution, against the person of the defendant, must have been issued to the same sheriff, and by him returned, not less than fifteen days after its re- ceipt, to the effect that the defendant could not be found within his county. § 598. Duty ofshenif on such executions. The sheriff must diligently en- deavor to enforce an execution issued and delivered to him, as prescribed in the 96-12 AEEEST AND BAIL. J^Ca HI. last section, notwithstanding any direction he may receive from the plaintiff, or his attorney. § 599. Defences in action against baU. In an action against bail, it is a de- fence, that an execution against the property, or against the person, of the de- fendant in the original action, was not issued, as prescribed in section five hun- dred and ninety-seven of this act ; or that it was not issued in sufficient time to enable the sheriff to enforce it; or that a direction was given or other fraudulent or collusive means were used, by the plaintifE or his attorney, to prevent the ser- vice thereof. § 600. Relief of bail where prindpd is imprisoned on criminal charge. If the defendant in the original action, after his discharge upon baU, is imprisoned, either within or without the State, upon a criminal charge, or a conviction of a criminal offence, the court in which an action against the bail is pending, may, before the expiration of the time to answer, and upon notice to the adverse party, make such an order for the relief of the bail as justice requires. §601. Exoneration of bail, etc. Except in an action to recover a chattel, the bail must be exonerated where either of the following events occur before the expiration of the time to answer in an action against them : 1. The death of the original defendant. 2. His legal discharge from the obligation to render himself amenable to the process, direction, or proceedings with respect to which the undertaking of the baU was made. 3. His surrender to the sheriff of the county where he was arrested, as pre- scribed in this article. Where either event occurs after the commencement of the action against the baU, the court may, in its discretion, impose the payment of plaintiff's costs and expenses incurred aiter the return of the execution against the person, as a con- dition of allowing the exoneration. And thf court may, by an order, made upon notice to the adverse party, grant such further time as it deems just, after answer, for the surrender of the original defendant. In that case, his surrender, within the time so granted, has the same effect as if it had been made before answer. P -R. S., .380, S83, §§ 16 and 34 (3 R. S., Sth ed.. 662, 665 ; a Bdm., 394, 397), and Code Proo., § 191, ante. p. 87), relating to the relief of bail, and specifying the facts which operate as an exonera- tion, are superseded by this section, which is Intended to remove the great obscurities of that sertiou of the Code, and to establish rules adapted to the modern practice, and conforming generally to the intent of the Legislature. — Rev. ^otea.] § 719. Arrest, injunction, and attachment ; when not to be granted together. Where an application for an order of arrest, an injunction and a warrant of attachment, or two of them, is made in the same action, against the same defend- ant, and it satisfactorily appears that under the particular circumstances of the case two or all of them are not necessary for the plaintiff's security, the court or judge may, in its or his discretion, require plaintiff to elect between them. But this section does not apply to an action specified in subdivision third of section 549, or in section 637 of this act. [New provision, that where a plaintife applies for an arrest, injunction, and attachment, or two of them, in the same action, he may be required to elect which remedy he wiU adopt, except in ac- tions against government defaulters, etc.— Rev. Notes. And see ante, p. 78.] § 720.. Motions to vacate, etc., to be decided in twenty days. Where an appli- cation is made to obtain, vacate, modify, or ^et aside an order of arrest, injunc- tion order, or warrant of attachment, the court or judge must finally decide the same within twenty days after it is submitted for decision. CHAPTER IV. ATTACHMENTS UNDEE THE CODE. The attachment authorized by the Code of Procedure is a new remedy, not existing under the Revised Statutes. Attach- ments under the Eevised Statutes are special proceedings ; they are the original process by which suits are commenced ; and a strict compliance with all the requirements of the statute^ under which the proceedings are had, is necessary to confer jurisdiction. But an attachment under the Code is not origi- nal process for the commencement of an action. It is an order in an action, and may issue at the commencement of tho action, or at any time afterward. 13 How. 349 ; 16 Id. 77 ; 13 Barb. 412. Unlike attachments under the Eevised Statutes, too, which are for the benefit of all the creditors, the attachment under the Code is for the benefit only of the credi- tor applying for it. 2 Code R., 62, s. c. 2 Sand. S. O. 68; Code B,. JSf. S. 299; 33 Ba/rb. 469, aff. 23 Hew York, 169. In what cases attachments may issue.] It is provided by § 227 of the Code of Procedure, that in an action arising on con- tract for the recovery of money only, or in an action for the wrongful conversion of personal property, against a corporation, created by or under the laws of any other State, government or country, or against a defendant who i^ not a resident of this State, or against a defendant who has absconded or concealed himself, or whenever any person or corporation is about to remove any of his or its property from this State, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete any of his or its property, with intent to defraud creditors, as hereinafter mentioned, the plaintiff, at the time of issuing the summons, or at any time afterwards, may have the property of the defendant or corporation attached in the manner herein prescribed, as a se- 98 ATTACHMENTS tTNDEE THE CODE. [OH. IV. curity for the satisfaction of sucli judgment as tlie plaintiff may recover. And for the purposes of this section, an action shall be deemed commenced when the summons is issued ; provided, however, that personal service of such summons shall be made, or publication thereof commenced within thirty days. Gode^ § 227 ; as amended Laws of 1866, ch. 824. In addition, it is provided by § 229, that the warrant may be issued whenever it shall appear by affidavit that a cause of action, exists against the defendant, specifying the amount of the claim, and the grounds thereof, and that the defendant is either a foreign corporation, or not a resident of this State, or has de- parted therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent, or that such corporation or person has re- moved, or is about to remove any of his or its property from this State, with intent to defraud his or its creditors, or has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property, with the like intent, whether such defendant be a resident of this State or not. 1. In what actions. The attachment can issue only in an action on contract for the recovery of money, or in an action for the wrongful conversion of personal property. Code § 227, as amended Laws of 1866, ch. 824. Thus, it will not be granted in actions of tort, otherwise than for the wrongful conversion of personal property ; as in an ac- tion for willful tresspass, 11 Abb. 1 ; and see Code, § 227, supra; 18 Abb. 286, aff. 29 How. 55 ; 18 Abb. 455 ; 43 Barb. 501 ; 18 Abb. 290, 7iot6. Nor will it be granted in an action to restrain the defendant from using the plaintiff's trade mark, 9 Bosw. 601 ; nor where the plaintiff seeks equitable relief, such as an account- ing, or the foreclosure of a mortgage, as a means of reaching a recovery of money. 18 Alb. 291, note. 2. Agaimst foreign coiforations. The attachment may issue against a corporation created by or under the laws of any other State, government, or country. Code, §§ 227, 229, supra. But an action against such a corporation can be brought only in the Supreme Court, the Superior Court of the city of New York, or the Court of Common Pleas for the city and county of New York, by a resident of this State, for any cause of action, and by a non-resident plaintiff, where the cause of action shall have CH. IV.] ATTACHMENTS UNDER THE CODE. 99 arisen, or tlie subject of the action shall be situated withia this State. Ih. § 427, and see 7 How. 238 ; 17 Id. 16 ; 15 Id. 372 ; 18 Id. 218 ; Id. 413 ; 8 All. 284. Though, under the act passed March 15, 1849 {Laws 1849, p. 142), an action was held properly brought, upon a policy of marine insurance, against a foreign insuranc ecompany, by a non-resident plaintiff, where the negotiations for the insurance took place in the city of New York, and the policy was there issued ; the property insured being lost at sea. {a) 13 All. 425, s. c. 35 Barl. 525. But a cause of action may be assigned to a resident of this State, for the purpose of obviating the objection to an attach- ment by a non-resident. And such an assignment is not a fraud against the statute or the defendant. 26 New Yorh, 450. Although, under the Code, it is essential to the jurisdiction of the court in an action against a foreign corporation, that the plaintiff should be either a resident of this State, or the cause of action should have arisen, or the subject of the action should be situated within it, yet it is not necessary, to the validity of pro- ceedings against such corporation, that proof of either of those facts should have been made previous to the commencement of proceedings ; and it is sufficient if a state of facts which sustains the jurisdiction is made out when a motion is made to vacate the proceedings. 4 All. 72. 3. Against a nonresident. The attachment may issue against a defendant who is not a resident of this State. Code, § § 227, 229, swpra. And if the action is against several who are jointly liable, and one of the defendants is a non-resident, and the others residents, an attachment may be issued, and the joint property taken, as well as the individual property of the non- resident defendant. 2 Code ^. 50 ; 1 Duer, 662 ; 12 Barl. 298, s. c. Code E., N. 8. 329 ; B.off. Pro. Rem. 408, and cases cited. But in such case, the attachment will not bind the joint prop- (a) The act of 1849 is supposed still to remain unrepealed, and applies to foreign corporations generally, although, its title seems to confine its application to foreign in- surance companies. It is simply an amendment of sec. 15, article 1, title 4, oh. 8, of part 3, of the Revised Statutes, relating to proceedings by and against corporations m courts of law (2 Rev. Stat. 459), and authorizes actions against foreign corporations, "for the recovery of any debt or damages, whether liquidated or not, arising upon 3ontract, made, executed, or delivered within this State, or upon any cause of action arising therein." Lawa of 1849, p. 142 ; Voorhies' Code, 8th ed. Y97, note; 13 Ahi. 425. 100 ATTACHMENTS UNDER THE CODE. [CH. IV. erty of all the parties; but only tlie interest of the party against whom the attachment issued. 8 Abb. 120 ; 7 How. 2*29, 233 ; Ih. 383 ; 15 All. 230, s. e. 24 Eow. 284; 43 £arb. 187. The term residence means legal residence ; and legal resi- dence means the place of a man's fixed habitation, where his po- litical rights are to be exercised, and where h^ is liable to taxa- tion. 16 How. 77, s. c. 8 All. 89, note, per James, J. Thus, in the case last cited, the defendant had a family resid- ing at Portsmouth, Canada^ and there owned a ship yard. He came to Ogdensburgh, and leased a marine railway, and carried on the business there for about a year and a half; during which period he was most of his time at Ogdensburgh — his family keep- ing house at Portsmouth. He continued to do business also, at the latter place, where he had property to a considerable amount. It was held that his legal residence was in Canada, and a mo- tion to discharge an attachment was denied. And so, in Barry vs. Bockover, the defendant was a member of a firm doing business in the city of New York. All the de- fendant's business and property was in the State of New York, and all his business capital, and his bank account was in the city of New York, where he spent on an average eight hours of every business day. But, for reasons of convenience and economy only, the defendant maintained his family in Jersey City, in the State of New Jersey, and spent there with them his nights and Sun- days. It was held that he was a non-resident. 6 All. 374. And see to the same effect. Potter vs. Kitchen, II. note, and Chaine vs. Wilson, 1 Bosw. 673, af. 8 All. 78 ; 16 How. 552, and it makes no difference in such case whether a man's ab- sence from his family be for eight hours in each day, or six days in each week ; he is still a non-resident. Id. / but see contra, 2JL55.299. Where the defendant had a place of business in New York city, but boarded in Newark, N. J., where he also carried on business and had repeatedly declared that he resided there, and had no family or home in New York, and was seldom, if ever, at his ostensible place of business in New York ; he, too, was held to be a non-resident. 8 All. 64. And so, where the defendant kept a house at Bradford, New Hampshire, in which his wife and children resided, and in which he entertained his friends, and which was called by him " his home;" CH. rv.] ' ATTACHMENTS UNDER THE CODE. 101 it was held that such place was his legal residence, notwithstand- ing the defendant's positive statement that he then had a store of goods and was doing business as a merchant, and had actually re- sided in Franklin county, in this State, for more than eighteen months, with the intention in good faith permanently to reside there. 9 How. 272. So, a person who formerly resided in another State, but who had with his family removed to this State, and was then residing with a relative, while he was looking out for an opportunity to engage ia business — it being undetermined whether he should finally settle in this State or elsewhere — ^was held to be a non- resident, and a motion to discharge an attachment issued on that ' ground was denied. 4 Id. 349. But where the defendant, a merchant engaged in business at Hornellsville, New York, where he owned real estate, and where he resided with his family, in September, took from his store a large portion of the goods, and went to Hudson, "Wisconsin, with the intention and expectation of disposing of them more readily for cash, to pay his debts ; and if the trade proved to be good to continue his business there in charge of a clerk, and to return himself and continue his business in this State — his store in Hornellsville remaining in the mean time in charge of a clerk — ^his family still remaining there, the defendant intending to return in the following spring, but not actually returning until July ; an attachment having been issued against the defendant on the 29th June, on the ground of his non-residence ; it was held that he was a resident of this State, and the attachment was set aside. 11 How. 507. And to sustain an attachment on the ground of non-residence against a person who has recently had a fixed residence in this State, it must appear that the defendant had acquired a residence out of this State at the time the attachment issued. 15 Abh. 221. And therefore, the enlistment of a person residing in this State, in the volunteer army of the United States, and absence from the State in such service, do not make such person a non-resident within the meaning of the statute. 21). Though where the debtor was detained abroad three years and upwards, attending to busi- ness, during which time he kept up a house in the city of New York, as he had done for many years before ; it was held he was a non-resident of the State. 1 Seld. 423 ; and see 1 Wend. 43. 102 ATTACHMENTS UlTDEB THE CODE. . [CH. IV 4. Against absconding or concealed debtors. Ey the Code, ulso, as we have seen, an attachment may issue against a defend- ant who has absconded or concealed himself, that is, has departed from the State with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with a like intent. Code, §§ 227, 229, supra. Where it is conceded that there has been a departure from the State, all that is required is, that the court should be satisfied that such departure was with intent to avoid the service of process, or, to defraud creditors ; and it is not necessary to determine that the defendant has gone away for both of those purposes. 7 Barb. 656, s. c. 2 Code R. 91. Nor is it necessary to determine that the debtor has secretly departed ; but it is enough that he has de- parted with intent to defraud creditors or to avoid the service of process ; even if such departure was open and notorious. lb. The fact of the concealment of the debtor should be sworn to positively ; and if it is stated on belief only, the grotmds of the belief should be set out, so that the officer to whom the applica- tion is made, may determine whether the belief is well founded. 1 Code a., N. S. 12. It is not necessary that a summons should have been issued, and an ineffectual attempt made to serve it. But it is sufficient if the debtor intentionally so disposed of him- self that the summons could not have been served ; nor is it material that the defendant could have had no object in avoiding the service ; but it is enough, if there was an actual intention to avoid the service, lb. 13. per Edmonds, J. ; a/nd see ,12 Ba/rb. 265 ; Hoff. Pro. Rem. 409. Nor is the concealment within the State to be exclusively with intent to defraud creditors ; but it must be with that intent, or with the intent to avoid service of process. lb., and see 1 Kern. 331 ; 7 Barb. 656, s. c. 2 Code R. 91. 5. Against debtors removing property, d;c. .The attachment issues also against a person or corporation that has removed or is about to remove, any of his or its property fi-om this State with intent to defraud creditors, whether the defendant is a resident of this State or not. Code, §§ 227, 229, supra. Thus, in Mott vs. Lawrence, an attachment was applied for under the non-imprisonment act, on the ground that the defend- ant had removed his property out of the county with intent to defraud creditors. The only facts sworn to were, that the defend- OH. rv.] ATTACHMENTS UNDER THE CODE. lOS ant closed his store and immediately commenced packing up iis goods, and continued packing them until midnight, ready to be removed ; that his store was closed the next morning ; that on the day previous he removed his family, without informing the plaintiff or his family, who resided in the same building over the store. It was held not sufficient to authorize the attachment. 17 How. 559, s. c. 9 Abb. 196. It is said to be settled by the decisions in other States, under provisions similar to our Code, that the naked fact of removal of property out of the State is not sufficient. It must be done with a view to the injury of a creditor ; with the intent to defraud the creditors of the debtor. Hoff. Pro. Rem. 412, citing 18 Louis. 36 ; 10 III. 21 ; 7 Humph. 210 ; and see ante, p. 64, in respect to the right to arrest for the same cause. 6. Against debtors assigning, disposing of, or secreting prop- erty, c&c. The attachment issues, also, against a person or cor- poration who has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, any of his or its property, with in- tent to defraud creditors, whether the defendant is a resident of this State or not. Code, §§ 227, 229, supra. The statute speaks of the defendant's property ; by which is meant any property in his possession, and to which he claims title, although his title is imperfect or clearly bad. The injury to the creditor, and the intent to defraud, are as clearly shown in that case as if the defendant had a perfect title to the property. The attachment lies if the defendant has secreted, or is about to secrete " any" single piece of his property, and extends to all his prop- erty of every kind, because the single act shows a readiness and an intent to extend the offense as far as may be necessary to pro- mote his fraudulent designs. And this design is as manifest in concealing embezzled property, as in concealing that which is lawfully his. 15 Sow. 9, per Mitchell, J. The mere neglect of a defendant to defend an action brought against him, there being no fraud or collusion between the plain- tiff and defendant, is not a conveyance or disposition of property within the meaning of the statute. 17 Id. 556. And conveyances by a debtor, made under suspicious circum- stances, maybe explained by affidavits, and the purposes and con- sideration of the transfer stated; and thus the apparent fraudulent intent may be negatived. lb. 104 ATTACHMENTS UNDER THE CODE. [CH. IV. A mere threat to make an assignment is not evidence of an intended fraudulent disposition of property sufficient to authorize an attachment ; nor does it alter the case that the debtor had originally promised to give the creditor collateral security, if it is not shown that such security was to have been out of the assets of the debtor. 12 All. 158, "s. c. 20 How. 343, affirming 19 Id. 410 ; 10 All. 390. Nor will a threat by a debtor to assign and put his property out of his hands, where the words used may be construed to mean that he would make a lawful assignment, be sufficient ground for the attachment, unless accompanied by evi- dence of cotemporaneous or subsequent acts showing a fraudulent intent, 26 Barb. 562 ; 6 All. 97, rev. II. 33. And a threat of the defendant, also, that by such assignment the plaintiff would get nothing, as an inducement for the plaintiff to take less than his claim, is not presumptive evidence of a fraudulent intention. Tl. A debtor, however, will not be permitted to use the power he has of assigning his property preferentially, to intimidate credi- tors into abstaining from pursuing the remedies allowed by law to collect debts, without being chargeable with intent to defraud them. , And where the defendant threatened that if he was sued he would make an assignment, and plaintiff could not get any- thing, and that he would do business in some other person's name ; and the defendant claimed, on a motion to set aside an attachment issued against him, that he had property sufficient to pay all his debts in full if his creditors had given him a little more time ; it was held that the defendant's threat, in connection with his ability to pay all his debts, was evidence of an intention to defraud creditors, and the motion to discharge the attachment was denied. 14 All. 64. So, where the debtor refused to pay his note on demand, and was told by the holder that he would be sued ; and the debtor thereupon threatened the creditor that if he was sued he would turn over all his property, and that the holder would not get a cent ; it was held that the debtor's prop- erty was liable to attachment. 27 How. 506. An attachment may issue against the property of a debtor who has made a fraudulent assignment for the benefit of credi- tors, although the assignment is valid on its face. '\^ All. 109. But an attachment for the purpose of taking the debtor's prop- erty in the hands of an assignee, received by him under an assign- ment for the benefit of creditors, cannot be upheld on the gronnd OH. IV.] ATTACHMENTS UNDEE THE CODE. 105 of alleged fraudulent transactions of the debtor prior to the time the assignment was made. 22 Hcno. 365. And it seems, an assignment for the benefit of creditors may be fraudulent and void on its face under the Revised Statutes, and yet not fraudu- lent so as to authorize an attachment against the property of the assignor. Ih. The facts showing the fraudulent disposition of the debtor's property should be testified to by some party familiar with them. And where the affidavit did not state any material fact upon actual knowledge, amounting to legal evidence of such purpose by the defendant, but all upon information and belief; it was held that an attachment issued upon it was irregular, and the same was discharged. 22 How. 272 ; and see 13 Ahh. 76. 7. Against iMri/ners or joint debtors. If the action is against several jointly liable, and one of the defendants is a non-resident, or an absconding debtor, and the others not, an attachment may issue and the joint property be taken as well as the individual property of the defendant against whom the attachment issued. 2 Code R.m; 1 Duer, 662; 7 How. 233; 11 Id. 46; 12 Barb. 298; s. 0. Code B., W. S. 329; Hoff. Pro. Rem. 408, and cases cited. But in such case, the attachment wiU not bind the joint prop- erty of aU the parties, but only the interest of the party against whom the attachment issued. 8 Abb. 120 ; 7 How. 229, 233 ; lb. 383; 15 Abb. 230, s. c. 24 Row. 284; 11 Id. 4:6 ; -4:3 Barb. 187. An attachment, however, cannot be levied upon the interest of a special partner in an action brought against the members of a limited partnership. 28 JVew York, 674. Attachment in favor of non-resident plavntiff.'] An attach- ment may issue in favor of a non-resident plaintifi^, the same as if he were a resident. Code E., If. S. 297 ; 2 Barb. S. C E. 436 ; but compare 3 Code, 172 ; except in an action against a foreign cor- poration, in which case an attachment cannot issue imless the cause of action arose, or the subject of the action is situated within this State. Code, § 427, ante, p. 98 ; 7 Eaw. 238 ; 15 Id. 372 ; 17 Id. 16 ; 18 Id. 218 ; Id. 413. At what Ume an attachment may issue.] The attachment may 106 ATTACHMENTS UNDER THE CODE. [CH. IV. be issued at the time of issuing the summons, or at any time afterwards. Code, § 22T. And the action will be deemed com- naenced when the summons is issued, provided, however, that personal service of such summons shall be made, or publication thereof commenced, within thirty days.. Ih. as amended, 1866, ch. 824 [a) The summons is " issued," within the meaning of the statute, when it is made out and placed in the hands of a person author- ized to serve it, and with a tonafide intent to have it served. 8 How. 500. The court acquires jurisdiction from the time the summons is served or the attachment is allowed. Code, § 130 ; 15 How. 8 ; S'Id. 500; 10 Barb. 258, s. c. 6 How. 47 ; 4 Id. 275 ; 5 Id. 183 ; 18 Barb. 412. Attachment and a/rrest together.] There is no statutory pro- vision prohibiting both an attachment and order of arrest from being issued in the same action. And it has been held that they may be granted simultaneously. Thus, in Bebee vs. Rogers, in the Superior Court of New York, an order of arrest was granted upon aflBdavits, showing the obtaining of goods on false pretenses, and an attachment on the ground of a fraudulent disposition of property. Subse- quently a motion was made before Hoffman, J., to discharge both, upon affidavits touching the merits in each instance, which application was denied. Uppn appeal, the order was affinned at general term. The point was not raised by counsel, but was dis- cussed by the judges. Hoff. Pro. Rem. 414. Affidavit, a/nd what to contain.] The application for an attachment is founded upon affidavit, which must show that a cause of action exists against the defendant, specifying the amount of the claim, and the grounds thereof, and that the case is one of those specified in which au attachment may issue. Code, § 229. For form, see Appendix, 'No. 56. (a) It had been held, previous to this amendment, that where the action was brought in the Superior Court or Court of Common Pleas of the city of New York, against a defendant who was a non-resident, the court acquired jurisdiction to issue the attachment only upon the actual service of the summons. 28 New York, 659 ; and see 3 Bosw. 627 ; 16 Atib. 246, note. CH. rv.] ATTACHMENTS tTNDEE THE CODE. 107 The affidavit should make out a prima facie case. And if enough is set forth in the affidavit to call upon the officer for the exercise of his judgment upon the weight and importance of the evidence, it is sufficient. 1 Code B., N. 8. 49 ; 17 How. 559 ; s. c. 9 Abb. 196. If the attachment is granted upon an insuf- ficient affidavit, it will be set aside on motion. 1 Code R., if. S. 12. The amount of the plaintiff's claim must be specified in the affidavit ; and where it appeared that the plaintiff was unable to state the amount of the claim, without an accounting between the parties, the attachment was discharged. 20 Sow. 93, s. a. 11 Ahb. 345. In stating the requisite facts, it is not sufficient to allege them upon information and belief. Thus, where the attachment was issued upon the ground that the defendant was about to dispose of his property with intent to defraud creditors, and the affida- vit did not state any material fact amounting to legal evidence of such a purpose, upon actual knowledge, but only upon infor- mation and belief; the attachment was, for that reason, dis- charged. 22 Id. 272. If the plaintiff alleges the facts upon information and belief, the sources of the information must be given. 13 Ahh. 76 ; 1 Barb. 552; and see 21 Bow. 112. The affidavit need not be entitled ; but if it is not, it should intelligibly refer to the action in which it is made. Code, § 406. And an affidavit for an attachment which omitted the title of the cause, and did not state who deponent was, whether plaintiff or defendant, and in no part of which was either the plaintiff or the defendant individually named ; and in which it was nowhere stated who was plaintiff or who defendant, was held insufficient. 12 Mow. 401. It is the duty of the plaintiff procuring the attachment, within ten days after the issuing thereof, to cause the affidavits upon which the same was granted to be filed in the office of the clerk of the county in which the action is to be ttjed. Code, § 229. Though, by the Supreme Court rules, these affidavits are required to be filed within five days from the time the attach- ment is granted ; and, if not so filed, the defendant may move to vacate the same for irregularity, with costs. Hule No. 4. Securil/y on obtadning warrant of attachment.'] Before 108 ATTACHMENTS UNDER THE GOBB. [CH. IT. issTiing the warrant, the judge will require a written under- taking on the part of the plaintiff, with sufficient surety, to the effect that if. the defendant recover judgment, or the attachment be set aside by the order of the court, the plaintiff will pay all costs that may be awarded to the defendant, and aU damages which he may sustain by reason of the attachment, not exceeding the sum specified in the undertaking, which shall be at least two hundred and fifty dollars. Code, § 230. The undertaking, before the same can be received or filed, must be duly proved or acknowledged in like manner as deeds of real estate, &wp. Court Rules, No. 6 ; though an omission to comply with the rule in that respect may be remedied by amendment. 1 Code S., N. S. 49, s. c. 6 How. 388. So, an undertaking which is insufficient in amount may be allowed to be amended by filing a new undertaking, 10 Abb. 424: ; and this may be done after a motion to discharge the attachment for the defect in the undertaking. Tb. It is not necessary that the plaintiff should join in the under- taking. 2 Abh. 441 ; 3 /(f. 189 ; 10 Id. 4T7 ; S.C.I'd How. 58. The undertaking must be approved by the justice or judge allowing the attachment, and such approval indorsed thereon ; and within five days thereafter must be filed with the clerk of the proper county, or the attachment may be set aside for irregu- larity. Sup. Court Rules., No. 4. For form of undertaking, see Appendix., No. 60. Where warrant obtained.'] The warrant of attachment must be obtained from a judge of the court in which the action is brought, or from a- county judge. Code, § 228. Second application, not allowed.'] If the attachment, on motion to the court, after opposition and argument on the merits of the application, has been discharged, another attach- ment founded on the same, or substantially the same, facts, will not be allowed. 19 How. 412. The wam'om.t of attachment:^ The warrant is required to be directed to the sheriff of any county in which property of the defendant may be, and shall require the sheriff to attach and safely keep all the property of the defendant within his county, CH. IV.] ATTACHMENTS UKDER THE CODE. 109 or SO much thereof as may be sufficient to satisfy the piamtiff'a demand, together with costs and expenses ; the amount of which must be stated in conformity with the complaint, together witli costs and expenses. Oode, § 231. And several warrants may be issued at the same time to the sheriffs of different counties. Ih. The warrant was formerly held to be process, and like the subpoena, execution, and the like, was required to issue in the name of the people, and have the clerk's and attorneys' names signed to it, &c. 1 Code B., N. S. 16 ; IBarh. 656, s. c. '2i Code E. 91, 121. But this has been overruled, and now it is held to be simply the written order of the judge, issued upon and as a judi- cial determination from the facts presented to him, that the case is one in which an attachment should be granted. The warrant of the judge is alone sufficient ; and a formal teste, signature of the clerk, and seal, are not required. Nor need a return day be in- serted in the warrant. The signature of the attorney for the plaintiff to the warrant should, however, be required. 1 2 Barb. 265; IQEow. 17, s. o. 8 AU. 89, note, 1 How. 364; 13 Id. 353; 16 /<^. 124; 5/£?. 389. The waiTant may be amended, § 173 of the Code having been held applicable to it. Thus, in a case in the Superior Court of the city of New York, an attachment was issued and property taken. The amount of the plaintiff's claim was not stated in the warrant; and on the succeeding day the amount was inserted by the same judge who issued it. The demand in the summons was for $2,000, and that amount was also specified in the affidavit. One of the defendants, member of a firm, was served with the summons on the day the attachment was issued. It was held that the omission could be corrected by amendment. Hoff. Pro. Rem. 425. It is indispensable to the validity of the warrant, that the judge place his signature to it ; though not necessary that the copy served shall have a copy of such signature. 19 All. 469 ; s. G. 30 How. 30. For form of warrant, see Appendix, No. 61. Duty of sheriff vn executing warrant.] The sheriff to whom the warrant of attachment is directed and delivered, shall pro- ceed thereon in all respects in the manner required of him by law in case of attachments against absent debtors ; shall make Vol. I.— 9 110 ATTACHMENTS UNDEB THE CODE, [CH. IV. and return an inventory ; and shall keep the property seized ty him, or the proceeds of such as shall have been sold, to answei- any judgment which may be obtained in such action ; and shall, subject to the direction of the court or judge, collect and receive into his possession all debts, credits, and effects of the defendant. Code, § 232. The sheriff may also take such legal proceedings, either in his own name, or in the name of the defendant, as may be neces- sary for that purpose, and discontinue the same at such times and on such terms as the court or judge may direct. Ih. The sheriff is required to proceed with the warrant of attach- ment in all respects in the manner required of him by law in case of attachments against absent debtors. The "manner required of him by law " is that prescribed by the Revised Stat- utes (2 Rm. 8tat. 4b, sec. 1 et seq.) in cases of attachments against absconding, concealed, and non-resident debtors ; in respect to which, see post, Chapter XIV. of this work, where the statute is given at large. There is no return day prescribed for an attachment, and therefore, the rules as to executions, that the lien upon goods not levied upon expires with the return, and that tlie sheriff can- not levy after the return day, are inapplicable. But in general, the rules as to executions, and the duties of sheriffs on executions, are the same in cases of attachments. Thus, on attachments, as well as on executions, the sheriff is bound to keep possession of property levied upon, if indemnified, although the jury may have found the title to be in a third per- son. 5 Ba/rb. 166. So, if the goods are not in the debtor's pos- session, but are in the possession of a third person claiming them as his own, the sheriff may lawfully require a bond of indemnity before executing the attachment. 18 New York, 115. So, there is no restriction as to the amount of property he shall take, nor is he required to levy upon the property at the same time. 42 Ba/rb. 513 ; and see 22 Id. 522 ; 28 Id. 476 ; 2 Corns. 451 ; Haff. Pro. Rem. 427. The amount of property which the sheriff may seize is within the exercise of a sound discretion by him. The plaintiff has no right to dictate the extent of the levy, any more than the defendant has to limit it. The plaintiff can only point out the property to the sheriff, and require a levy upon so much as will be sufficient. Id. ibid. But where the sheriff neglects to CH. IV.] ATTACHMENTS UNDER THE CODE. HI levy sufficient property to satisfy the debt, the defendant having sufficient property within reach, he will be liable for the defi- ciency. 18 Bairb. 56, s. c. 9 How. 119. What property may he attached.^ In respect to the property which may be seized under an attachment, it may be said gene- rally, that whatever may be taken on execution may be taken on an attachment. 10 Ahb. 83. By the statute the sheriff is required to attach the " property " of the defendant. Code, % 231. And " property," within the definition of the statute, means both real and personal property — the terms " real property " being co-extensive with lands, tene- ments and hereditaments ; and the terms " personal property " meaning money, goods, chattels, things in action, and evidences of debt. Ih. §§ 462 to 464. Thus, growing hops are held to be chattels. 36 Barb. 415. So, a right of action on contract to re cover damages the subject of computation, only, is property. 2 Abb. 234. So, also, negotiable paper is property. 9 /ost) ; Ih.; and see 10 Ahh. %2. How property, capable of manual deli/very, to be attacJied.] Where real estate is seized under attachment, to make such seiz- ure valid as against subsequent purchasers or incumbrancers, it is necessary to file a notice of lis pendens under § 132 of the Code. That section provides, that whenever a warrant of attachment shall be issued, or at any time afterwards, if the same be intended to affect real estate, the plaintiff may file, with the clerk of each county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, the object of the action and the description of the property in that county affected thereby. From the time of filing only will the pendency of the action be constructive notice to a purchaser or incumbrancer of the property affected thereby ; and every person whose conveyance or incumbrance is subsequently execu- ted or subsequently recorded, will be deemed a subsequent pur- chaser or incumbrancer, and be bound by aU proceedings taken after the filing of such notice to the same extent as if he were made a party to the action. For the purposes of the section, an action is deemed to be pending from the time of filing the notice ; provided, however, that such notice will be of no avail unless it is followed by the first publication of the summons on an order therefor, or by the personal service thereof on a defendant with- in sixty days after such filing. And the court, in which the action was commenced, may, in its discretion, at any time after the action shall be settled, discontinued, or abated, as is provided in § 121, on application of any person aggrieved, and on good cause shown, and on such notice as shall be directed or approved by the court, order the notice authorized by this section to be canceled of record by the clerk of any county in whose office the same may have been filed or recorded ; and such cancella- 114 ATTACHMENTS UNDER THE CODE. [CH. IV. tion may be made by an indorsement to tbat effect on the margin of the record, whieb shall refer to the order, and tbr which the clerk may charge twenty-five cents. Oode, § 132, as amended, Zawsqfl866, oh. 824. In making a levy upon real estate; it is not necessary that the sheriff should enter upon the land. But, for the purpose of se- curing a lien, it is necessary only that the land should be included in the inventory returned by the sheriff. And a mere return that he has attached the land is enough to secure a Hen for the credi- tor, to be enforced when he shall have obtained judgment. 7 How. 381 {of. 8 Jd. 17), per Harris, J., and see 15 Abb. 243, note ; 12 Id. 379, s. 0. 20 How. 430. The notice of lis pendens affects only those lands which the sheriff has attached, and is inoper- ative as to all other lands included therein. 42 Barb. 513. The levy of the attachment upon personal property is different. To render the levy, in such case, effectual, the sheriff must take possession of the property. 7 How. 381 ; 8 Id. 77 ; 20 Id. 430, s. c. 12 Abb. 379 ; 43 Barb. 187. And he must retain it ia his possession until the determination of the action in which the at- tachment was issued ; and, if the plaintiff recovers judgment, until the property is sold, under an execution issued thereon ; im- less the judgment is otherwise satisfied, or unless, in ease of per- ishable goods, &c., he is ordered by the officer, who issued the attachment, to sell the same. Id. ibid, y 27 Barb. 463. And the sheriff, in the absence of proof that he and his sureties are irre- Bponsible, will not be required to part with the property ; as, to deposit the proceeds with a trust company, subject to the order of the court, pending the litigation. 8 Bosw. 696, s. o. l^Abb. 253. Attalihment, how executed on- property not capable of manual delivery.] The execution of the attachment upon any rights or shares which the defendant may have in the stock of any associa- tion or corporation, or any debts or other property incapable of manual delivery to the sheriff, shall be made by leaving a certified copy of the warrant of attachment with the president or other head of the association or corporation, or the secretary, cashier or managing agent thereof, or with the debtor or individual hold- ing such property, with a notice showing the property levied on. Code, % 235. For form of notice, &c., see Appendix, No. 64. And the attachment, in order to reach a debt due to the de- CH. IV.] ATTACHMENTS UNDER THE CODE. 115 fendant, or other property held by a third party, must be executed by delivering ^ersowaMy to ^^^ debtor, or other party, a certified copy of the warrant, with a notice showing the property levied on. Leaving them at the place of business of the debtor, with a third person found there, is not sufficient. 11 ITow. 520, s. c. 4 E. D. Smith, 443. If the property is a promissory note, the . attachment may be executed upon it, by leaving with the holder a certified copy of the warrant, with a notice showing the property levied on. 3 E. D. Smith, 419. In this case the note was in the possession of the attorney for the defendant for collection, and the notice and cer- tified copy of warrant were served upon him. The notice should describe particularly the property levied on, 60 as to enable the holder to identify it and deliver it to the sher- iff, when his own claims are satisfied. 5 Du&r, 243. And a notice, referring, in general terms, to the property as belonging to the debtor, is insufficient, Ih. ; but see contra, 30 How. 30, s. c. 19 Abb. 469. Nor is a notice sufficient which assumes to levy upon all the defendant's property. 11 Abb. 3, 6 ; and see 4 K D. Smith, 444, s. c. 11 How. 522 ; but see 30 How. 30, s. c. 19 Abb. 469. Z,ien of the attaGhmenf] The attachment first delivered to the officer has priority ; although a seizure of the property may be first made under an attachment subsequently delivered. 12 Abb. 379, s. c. 20 How. 430 ; 19 Abb. 469, s. c. 30 How. 30. And if the action is brought upon a money bond, payable in installments, where there is only one installment due, and the plaintiff obtains an attachment against the defendant's property, his lien by the attachment, as against creditors acquiring intermediate liens upon the same property, is only to the extent of the amount actually due upon the bond at the time of the service of the attachment, although another installment has become due at the time his judg- ment is entered. 19 How. 385. Inventory.'] The sheriff, immediately on making the seizure, is required, with the assistance of two disinterested freeholders, to make a just and true inventory of all the property seized, and of the books, vouchers and papers taken into his custody, stating therein the estimated value of the several articles of personal property, and enumerating such of them as are perishable ; which 11,6 ATTACHMENTS UNDER THE CODE, [CH. IV. inventory, after being signed by tlie sheriff and the appraisers, ia required, within ten days after such seizure, to be returned to the offi(!er who issued the warrant. 2 Rev. Stat, i, as ammided Laws of 1840, p. 296. It is not necessary the inventory should be made on the same day or immediately after the attachment is served. 19 Ahh. 470, s. c. 30 Eow. 30. For form of inventory, see Appen- dix, No. 62. Proceedings in case of perishable property or vessels ; claims of thi/rd persons, c&c] If any property seized under the attach- ment is perishable, or if any part of it be claimed by any other person than such defendant, or if any part of it consist of a vessel, or of any share or interest therein, the same proceedings shall be had in aU respects as are provided by law npon attachments against absent debtors. Code, § 233 ; in respect to which see post, Chapter XIV. of this work. "Where the property attached was a vessel belonging to the defendant, and it had been in the sheriff's hands for more than a year, and no bond had been given by the defendant, or by any one, as owner, and there was a probability that the expenses of keeping it would eat up its value ; the court directed an order that it be sold by the sheriff. 1 Code B., N. S. 300. And so, where part of the property attached consisted of po- tatoes, and the appraisers had certified that they were perishable, the court ordered them to be sold. 14 How. 346. If the property is directed to be sold as perishable, the sheriff will be authorized to sell at public auction, and to retain the pro- ceeds, to be disposed of in the same manner as the property, if it had remained unsold. Ji. When certificate of defendants interest to he furnished.'] Whenever the sheriff shall, with a warrant of attachment, or exe- cution, against the defendant, apply to such officer, debtor or individual, for the purpose of attaching, or levying upon such property, such officer, debtor or individual, is required to furnish him with a certificate under his hand, designating the number ot rights or shares of the defendant in the stock of such association or corporation, with any dividend or any incumbrance thereon, or the amount and description of the property held by such asso- CH. rv.] ATTACHMENTS UNDER THE CODE. 117 ciation, corporation or individual, for the benefit of or debt owing to the defendant. Code, % 236. If such officer, debtor or individual refuse to furnish such cer- tificate, he may be required by the court or judge to attend before him, and be examined on oath concerning the same, and obe- dience to such orders may be enforced by attachment. Ih. Before the sheriff will be entitled to demand a certificate under the above section, he must disclose the fact that he has such attachment or execution. 13 Ahh. 469, s. c. 22 How. 278. Where the parties served with the notice and certified copy of the warrant of attachment furnish to the sheriff a certificate or statement under their respective hands, denying that they have any property belonging to the defendant, the plaintiff has no right to call upon them to be examiaed, until he impeaches the verity of the certificate. The examination can be had only in case of a refusal to give the certificate. But where the plaintiff establishes to the satisfaction of the judge, by the former admis- sions of the party, that such persons have property of the defend- ant, and that the certificate, stating that they have none, is untrue, such conduct may be regarded as a refusal to give the required certificate, and they may be examined. 26 Ba/rb. 61, overruling 4 All. 368 ; 1 Code R. N. S. 210. In case any cashier, secretary, clerk, or individual upon whom any sheriff shall serve an attachment or execution, shall refuse to furnish him with the certificate required in and by the third sec- tion of the act passed April 11, 1842, entitled "An Act to amend the law in relation to suits against foreign corporations," chapter 197, then the plaintiff therein may require the examination of such cashier, secretary, clerk, or individual, before any officer of the court out of which the attachment or execution issued. I^aws of 184:8, p. 69. The provisions of sections 12, 13, 14, 15 and 16 of article eight of title first, chapter fifth, part second, of the Revised Stat- utes (2 Hev. Stat. 4:3,post, Chapter XIY. of this work) in relation to the mode of examining non-resident debtors, or persons in- debted to them, or having property of theirs in his or their pos- session, shall apply to and govern the examination authorized to be had in and by this act, so far as the same may be applicable. n. E'either the privilege of examination under the above section 118 ATTACHMENTS UNDER THE CODE. [CH. IT. of the Code, nor the authority of the sheriff under § 232, deprives creditors of their right to enforce a lien acquired by attachment by a suit in equity, the remedies given in the name of the sheriff being merely cumulative. 13 Ahb. 443. See, however, this same case on appeal. 24 How. 489 ; 15 Abb. 391 ; 39 £arb 206. Motion to vacate attaokment for irregulwrity, c&c] By the Code, the defendant, in all cases, may move to discharge the at- tachment, as in the case of other provisional remedies. Code, § 241. {a) Thus, an attachment wiU be vacated where it is granted on an insufficient affidavit, 1 Codi E., W. 8. 12 ; lb. 49 ; 19 How. 410 ; 13 Abb. T6 ; 10 Id. 390 ; or where, from the facts and cii'cumstances, as explained by the defendant's affidavits, it ought not to have been issued. 20 How. 343 ; s. g. 12 Abb. 158 ; 4 Id. 396 ; or where it is issued for the mere purpose of delaying ot defeating an attachment previously issued in another case, 4 Id. 393 ; or where a defendant, residing in Canada, is inveigled into this State by a trick, for the purpose of effecting service of the summons, and an attachment is issued in the action. 41 Barb. 45 ; and the like, 15 Abb. 189. The defendant is the proper person to move to vacate an at- tachment ; though if he has no interest, or disclaims any interest in the property attached, he cannot move to discharge it. 13 How. 359 ; but see 14 Abb. 64, 67. The fact, however, that the defendant has made an assignment of all his property in trust for creditors, either before or after the issuing of the attachment, will not preclude him from moving to vacate it. 13 Abb. Y6 ; and see 14 Id. 64, 10 Id. 390, s. c. 19 How. 410, aff. 12 Abb. 158 ; 20 How. 343. So, a party, having a prior attachment which has been levied upon the defendant's property, may move to vacate an attach- ment subsequently issued against the same property, where it has been issued for the mere purpose of delaying or defeating the prior attachment. 4 Abb. 393. As iu the case of other provisional remedies, the defendant may move at any time before judgment to vacate the attachment. Code, §§ 204, 241. And he may so move also, it seems, after judgment entered in the action. 15 Abb. 97, s. c. 38 Barb. 442 ; 24 How. 286, note ; but compare 22 Id. 278, s. v. 13 Abb. 469. (*) This motion must be decided within 20 days. Laws of ]867, p. 1926. CH. IV.] ATTACHMENTS UNDEE THE CODE. 119 The motion to vacate an attachment may be foimded upon the original papers on which it was granted, or upon those papers, and additional papers on the part of the defendant. 16 How. TY, s. c. 8 Abh. 89, note; 11 How. 221; 13 Id. 350. If founded upon affidavits on the part of the defendant, the plaintiff may read counter affidavits in opposition. But if the motion is founded Bolely upon the affidavits on which the attachment was issued, no additional affidavits in support of the original application will be allowed. In such case the attachment must stand or fall upon the facts originally presented to the judge issuing the warrant. Id. ibid. ; 22 How. 2T2 ; and see 14 All. 64, 1 Code E., I^. S. 12 ; lb. 104, s. G. 3 Sand. S. 0. R. 703. But, although, where a motion to vacate an attachment is made solely upon the insufficiency of the original papers, addi- tional affidavits to support the attachment are inadmissible — yet such additional affidavits may be received, so far as they relate to facts which have taken place since the original application was made, and are intended to show, not additional circum- stances of fraud in support of the application, but a change in the relation and condition of the parties since the attachment was issued. 12 All. 158, s. c. 20 How. 343, affirming IQAlb. 390. Where the motion to vacate the attachment is founded on the original affidavits on which it was issued, and the defendant made affidavit to procure an order to show cause instead of giv- ing the ordinary notice of motion, it was held that this did not entitle the plaintiff to introduce new affidavits. 13 All. 76. Unreasonable delay in moving is a sufficient answer to a mo- tion to vacate an attachment on the ground of irregularity ; e. g., on the ground that the defendant is a resident, the attachment having been issued on an affidavit showing non-residence. 15 All. 110. The giving of an undertaking under § 241 {pest) will not preclude the defendant from subsequently moving to set aside the attachment. II. 189. If the attachment is set aside for irregularity, it will afford no justification afterwards for acts previously done under it, to the party in whose favor it was issued ; otherwise, however, to the officer who executed it, if the attachment was issued by compe- tent authority and is regular on its face. 28 N'ew York, 659. And the court therefore, will sometimes, in setting an attach- 120 ATTACHMEKTS UNDER THE CODE. [CH.- IV. ment aside, require the defendant to stipulate, as a condition of doing so, that he will not bring any action on account of issuing the attachment, and be limited to such redress as he may be en- titled to for actual damages on the undertaking filed when the attachment was granted. 17 Eow. 558 ; and see 1 Barb. Ch. B. 274; 5 Duer, 603 ; 16 JSfew York, 446. Application to the court, or the judge issuing the attachment, to discharge the same.] "Whenever the defendant shall have ap- peared in the action, he may apply to the officer who issued the attachment, or to the court, for an order to discharge the same; and if the same be granted, all the proceeds of sales and moneys collected by him, and aU the property attached remaining in his hands, shall be delivered or paid by him to the defendant or his agent, and released from the attachment. Code, § 240. And where there is more than one defendant and several property of either of the defendants has been seized by virtue of the order of attachment, the defendant whose several property has been seized may apply to the officer who issued the attach- ment for relief under this section. Jb. Upon such application, the defendant is required to deliver to the court or officer an undertaking executed by at least two sure- ties, who are residents and freeholders or housesholders in this State, approved by such court or officer, to the eflfect that the sureties will, on demand, pay to the plaintiff the amount of judgment that may be recovered against the defendant in the , action, not exceeding the sum specified in the undertaking, which shall be at least double the amount claimed by the plaintiff in his complaint. If it shall appear by affidavit that the property attached be less than the amount claimed by the plaintiff, the court or officer issuing the attachment may order the same to be appraised, and the amount of the undertaking shall then be double the amount so appraised. Code, § 241. (a) In all cases the defendant may move to discharge the at- tachment, as in the case of other provisional remedies. lb. And when there is more than one defendant, and several property of either of the defendants has been seized by virtue of the order of attachment, the defendant whose several property (a) Under a recent ameudment of this section the plaintiff may except to the sufficieuoy of the sureties, and thereupon they are required to justify, etc. Laws of 1869, ch. 883, in Appendix of Notes at the end of vol. II. CH. rv.] ATTACHMENTS UNDER THE CODE. 121 tas been seized may deliver to the court or oflBcer an undertak- ing, in accordance with the provisions of this section, to the eifect that he will, on demand, pay to the plaintiff the amount of judgment that may be recovered against such defendant. And all the provisions of this section appHcabVe to such undertaking shall be applied thereto. Ih. The application by a defendant under the above sections of the Code is "purely ex parte;" though the court may, in its discretion, direct notice of the application to be given to the plaintiif. And if notice has been given, in pursuance of such direction, and the defendant fails to appear at the time specified, the application will be dismissed, though without costs. 13 Abb. 432, s. c. 22 How. 106. The defendant must exercise his right to have the attachment discharged, before the plaintiff has recovered judgment in the action ; and this, too, though the judgment has been suspended by an appeal which is still undetermined. 13 Abb. 180. The sureties are not discharged by an order on the principal to furnish further security, that order not having been complied with, and judgment having been entered against him for want of an answer. Id. 97, s. c. 35 Barb. 208. And a motion to compel a defendant to furnish further sureties, on the ground that one of them is an infant, is not an exception to the sufficiency of the sureties. Id. The court has no power to order additional sureties, on the ground that one of them is insolvent. 16 Sow. 189, s. c. 1 Abb. 26 ; and see 4 Id. 460 ; 15 How. 310. Sheriff may proceed to collect debts, c&c] The sheriff, pend- ing the action, is required, subject to the direction of the court or judge, to collect and receive into his possession all debts, credits and effects of the defendant. He may also take such legal pro- ceedings, either in his own name or in the name of the defend- ant, as may be necessary for that purpose, and discontinue the same at such times and on such terms as the court or judge may direct. Code, § 232. The above section does not authorize the plaintiff to com- mence any action or proceeding in reference to the property attached. The authority of the plaintiff, in such case, to sue, is given by § 238, post; and the plaintiff cannot bring an action .under that section without first executing to the sheriff the un- 122 ATTACHMENTS TJITDER THE CODE. [CH. IV dertaMng therein mentioned. 39 Barb. 206, s. c. 15 Ahi. 391 ; 24 How. 490 ; rev. s. c. 13 All. 443. After an assignment, made in trust for creditors, has been declared void as to such creditors, the sheriff holding an attach- ment against the property of the assignors is entitled to bring an action to recover moneys deposited in bank to the credit of the assignees. 42 Barb. 594. Where the sheriff levies on a promissory note upon which ai action has been brought, he may continue the action in the name of the plaintiff, or may be substituted as plaintiff, at his election. 8 E. D. Smith, 419. The sheriff, in his complaint, is not required to set forth the time, manner and circumstances of his election or appointment, or the detail or regularity of the proceedings by which he was in- ducted into office. 33 Barl. 123, affirming 32 Id. 601. The sheriff may employ necessary attorneys and counsel • and he is entitled to be paid the necessary disbursements there for, whether actions prosecuted by him are successful or not, if he has acted in good faith. 31 Bml). 87. Though if he employs agents to assist him in collecting debts, which he could himself collect without resort to an action or the employment of counsel, he must himself compensate them for their services ; unless it is otherwise agreed with the parties interested in the pro- ceeds. II. See further on the subject of suits by sheriff, post, under the head of "Judgment and satisfaction thereof by sheriff" — and " A ction by plaintiff to collect debts, &c." The sheriff may seize any property which the defendants have disposed of, in any manner, with intent to defraud their creditors. As bailee of the plaintiff, he has a specific lien upon the property ; and, therefore, on a trial in an action against the sheriff for wrongfully taking the property, he may show, before judgment in the attachment suit, that the title of the purchaser from the debtors is fraudulent and void as against the attaching creditor. 26 Eow. 75 ; 27 New York, 596, reversing 29 Barh. 105 ; 9 All. 342; and see 5 Bosw. 344, s. c. 9 All. 325. So, a creditor of an assignor, when sued by the assignee for taking the assigned property on an attachment against the assignor, may show, in defense of the action, that the property was assigned with intent to defraud creditors; and the attorney who directed the CH. IV.] ATTACHMENTS UNDER THE CODE. 123 levy to be made may avail himself of the same defense. Id. iMd. ; 7 Bosw. 141. So, the sheriff may maintain an action in his own name as sheriff, to set aside as fraudulent and void an assignment of the debtor's property which the assignees have converted into money and deposited with a bank, and for the payment of the creditors' judgment out of the money on deposit. 42 Bwrb. 594, s. c. 28. Hmo. 128, hut see Id. 502. Action "by plaintiff to collect dd)ts, &ci\ The actions author- ized to be brought by the sheriff may be prosecuted by the plain- tiff, or under his direction, upon the delivery by him to the sher- iff of an undertaking executed by two sufficient sureties, to the effect that the plaintiff' will indemnify the sheriff from all dam- ages, costs and expenses on account thereof, not exceeding two hundred and fifty dollars in any one action. Such sureties shall, in all cases, when required by the sheriff, justify by making an affidavit that each is a householder, and worth doiible the amount of the penalty of the bond, over and above all demands and lia- bilities. Code, § 238. A strict compliance with the above section of the Code is necessary to entitle the plaintiff to maintain an action in his own name. He cannot do so, therefore, without first executing to the sheriff the undertaking therein mentioned. 39 JBarl. 206, s. c. 15 Abh. 391, rev. s. c. 13 Id. 443 ; 24 Sow. 489. Proceedings subsequent to judgment.'] In case judgment be entered for the plaintiff in the action, the sheriff 'is required to satisfy the same out of the property attached by him, if it shall be sufficient for that purpose, — 1. By paying over to such plaintiff the proceeds of all sales of perishable property, and of any vessel, or share or interest in any vessel, sold by him, or of any debts or credits collected by him ; or so much as shall be necessary to satisfy such judgment ; 2. If any balance remain due, and an execution shall have been issued on such judgment, he shall proceed to sell, under such execution, so much of the attached property, real or per- sonal, except as provided in subdivision four of this section, as may be necessary to satisfy the balance, if enough for that pur- pose shall remain in his hands ; and in case of the sale of any 124 ATTACHMENTS UNDER THE CODE. [CH. IV. rights or shares in the stock of a corporation or association, the sheriff shall execute to the purchaser a certificate of sale thereof, and the purchaser shall thereupon haye all the rights and privi- leges in respect thereto which were had by such defendant. 3. If any of the attached property belonging to the defendant shall have passed out of the hands of the sheriff, without having been sold or converted into money, such sheriff shall repossess himself of the same, and for that purpose shall have all the au- thority which he had to seize the same under the attachment, and any person, who shall willfally conceal or withhold such pro- perty from the sheriff, shall be liable to double damages at the suit of the party injured. 4. Until the' judgment against the defendant shall be paid, the sheriff may proceed to collect the notes and other evidences of debt, and the debts that may have been seized or attached under the warrant of attachment, and to prosecute any bond he may have taken in the course of such proceedings, and apply the proceeds thereof to the payment of the judgment. Code, §237. The sheriff is required to retain the property attached in his possession, until the determination of the action ; and, if the plaintiff recovers judgment, until the property is sold under an execution issued thereon ; unless the judgment is otherwise satis- fied, or unless, in case of perishable property, he is directed to sell the same. 2Y Barb. 463. If the sheriff who made the levy has gone out of office by expiration of his term of office, and judgment is afterwards obtained, the execution should neverthe- less be directed and delivered to him, and not to his successor. In such case, the execution should be a special one, directed to the former sheriff, as such, reciting the proceedings, and requir- ing him to sell the property attached ; and if that is not suffi- cient to satisfy the judgment, that he then sell the property of the defendant generally. /5,, and see 15 Abb. 250. For form of execution, see Appendix, !N"o. Y3. Until a proper execution has been placed in the sheriff's hands, directing a sale of the property seized, he cannot be placed in default in respect to such property. The former sheriff cannot be compelled to deliver the property to his successor in office, to be sold on execution directed to the latter ; and cannot, therefore, be made liable for a refusal to do so. 27 Barb. 463, supra. CH. IV.] ATTACHMENTS UNDER THE CODE. 125 The sheriff, in the absence of proof that he and his sureties are irresponsible, will not be required to part with the property ; as, to deposit the proceeds with a trust company, subject to the order of the court, pending the litigation. 13 Ahh. 253, s. c. 8 jBosw. 696. K, after the attachment is issued, and before judgment, the defendant dies, the right to direct execution to be issued is with the court in which the action was brought, and not with the surrogate. 15 Aii. 243, 250. The execution, in such case, should be limited in its operation to the property attached. Ih. The sheriff cannot sell, upon an execution issued on a judg- ment recovered here in an attachment suit, real estate belonging to a foreign corporation, and situated in another State. 29 £ari. 585. Order, <&o., in reference to uncoUeoted assets.] At the expi- ration of six months irom the docketing of the judgment, the court has power, upon the petition of the plaintiff, accompanied by an affidavit, setting forth fully all the proceedings which have been had by the sheriff since the service of the attachment, the property attached, and the disposition thereof, and also the affi- davit of the sheriff, that he has used dUigence, and endeavored to collect the evidences of debt in his hands so attached, and that there remains uncollected of the same any part or portion there- of, to order the sheriff to sell the same upon such terms, and in such manner as shall be deemed proper. Code, § 237. Notice of the application must be given to the defendant or his attorney, if the defendant has appeared in the action. But in case the summons has not been personally served on the de- fendant, the court is required to make such rule or order, as to the service of notice and the time of service, as shall be deemed just. lb. « Warrant of attachment to he retv/rned,'] When the warrant of attachment is fully executed or discharged, the sheriff is re- quired to return the same, with his proceedings thereon, to the court in which the action is brought. Code, § 242. Proceedings if defendant recovers jvdgment in the action.] If a foreign corporation, or absent or absconding or concealed Vol. I.— 10 126 ATTACHMENTS UNDEE THE CODE. [CH. IV. defendant, recover judgment against the plaintiff in the action, any bond taken by the sheriff, except such as are mentioned in § 238 of the Code {ante, p. 123), all the proceeds of sales and moneys collected by him, and all the property attached remaining in his hands, are required to be delivered by him to the defendant, or his agent, on request, and the warrant to be discharged, and the property released therefrom. Gode, § 239. But judgment for the defendant will not of itself discharge the attachment. And an appeal duly taken from the judgment suspends its effect in that respect. Lee vs. Selleck, N. York Trans. Dec. 23, 1859, ciUd in Til. & Shea/r. Pr. vol. l,p. 672. Sheriff's fees on attaGhment.'] The sheriff is entitled to the same fees and compensation for services, and the same disburse- ments, as are allowed by law for like services and disbursements under the provisions of chapter five (2 Hev. Stat. 3), title one, and part two of the Kevised Statutes. Provided, however, that no poundage or other compensation shall be allowed to the sheriff (except his fee of fifty cents for making the levy, and such compensation for his trouble and expense in taking posses- sion of and preserving the property as shall be fixed by the officer issuing the attachment), unless a settlement shall be had, or a judgment shall be recovered, and collected in whole or in part, in the action in which the attachment shall have issued. And where a judgment shall have been recovered and collected in part only, the amount of his poundage shall not be estimated upon any suxq greater than the sum collected upon such judg- ment. And where a settlement shall be had, the amount of his poundage shall not be estimated upon any sum greater than the amount at which the settlement is made. Code, § 243, as amended, 1865. The fee for serving the attachment is fifty cents, with such additional compensation for the trouble and expense of the sheriff, in taking possession of and preserving the property attached, as the officer issuing the warrant shall certify to be reasonable. 2 Bev. Stat. 646. The sheriff' is entitled, also, to nineteen cents for a copy of the attachment, and twelve and a half cents for returning it. Ih. 645 ; and see 21 How. 456 ; 29 Id. 1 ; 18 Abb. 449. For making and returning an inventory and appraisal, such OH. IV.] ATTACHMENTS UNDER THE CODE. 127 compensation is allowed to the appraisers, not exceeding one dol- lar to each per day, for each day actually employed, as the officer issuing the attachment shall allow ; and for drafting and copying the inventory, twenty-five cents for drafting, and twelve and a half cents for copying the same. 2 Eev. Stat. 646, 633. "Where the property attached is afterwards sold by the sheriff, he is entitled, for collecting the sum of two hundred and fifty dol- lars, or less, two and a half per cent., and for all over that sum one and a quarter per cent. Tb. The sheriff is not entitled to poundage in any case except where the property is actually sold, 11 Eoiu. 207; 21 Id. 456; or a settlement has been had, Code, § 243, sv^ra, and see 28 How. 87 ; 18 All. 448. The poundage is to be computed upon the sum collected by the sheriff", or received by the plaintiff upon the settlement. Id. ibid. But, after the levy, the sheriff is entitled ^ " a compensa- tion for his trouble and expenses in taking possession of and preserving the property," whether sold, or a settlement is had, or not ; which compensation must be determined by the officer issuing the attachment. See 11 How. 207, supra ; Code, § 243, supra. Where the property attached was a vessel, it was held that the charge for watching it ought not to be more than that allowed the United States Marshal for the same service ; which is two dollars and fifty cents per day. 18 Abb. 449. If the attachment proceedings between the defendant and his creditor are settled, the sheriff is entitled to his commissions on the sum paid by the defendant, although it does not come to the hands of the sheriff. 12 Alh. 136, s. c. 20 Sow. 405 ; 28 Id. 88, note ; and see Code, § 243, supra ; 18 Abl. 448. In respect to the sheriff's fees where the attachment is levied upon property not capable of manual delivery, and the shei'iff is required to perform, in respect thereto, services similar or equiva- lent to those rendered by trustees under the Revised Statutes, he is entitled to the same measure of compensation which the Eevised Statutes awarded to such trustees, for the like services, viz. : all necessary disbursements, and a com'mission of five per cent, on all moneys which come to his hands. 2 Rev. Stat. 46, § 29 ; n Barl.%1 \ s.c.lO AU.2.?,2; 18 Id. 4:50 ; Id. 4:52 ; butsee2QHno. 1. Though he will not be entitled to such commissions where he performs only the duties which usually devolve upon a sheriff; 128 ATTACHMENTS UNDEE THE CODE. [CH. IV. as, where the attachment is served upon the debtors of the defendant, and a settlement is afterwards had between the par- ties. In such case he is entitled to poundage upon the amount received at the rate above mentioned. 18 Aid. 4:50; Id. 452; Id. MS. In the prosecution of actions, the sheriff is entitled to be paid the necessary disbursements paid to attorneys and counsel ; and this, too, whether the actions are successful or not, if prosecuted in good faith. Though if he employs agents to aid him in col- lecting debts which he could himself collect without resort to an action, or the employment of attorney or counsel, he must himself compensate such agents, unless he is to be paid by agreement of the parties interested in the proceeds. 31 Ba/rb. 87, s. c. 10 Ahi. 289. And so, where property levied upon is taken out of the hands of the sheriff, he will be allowed a reasonable sum for regaining possession of the same, if he obtains possession in a lawful manner. 41 Barb. 471. The attorney for the plaintiff in the action in which the attachment is issued is liable to the sheriff for his fees on the attachment. And, in an action against him to recover the same, the certificate of the justice issuiug the attachment wiU be con- clusive evidence of the amount of the sheriff's compensation. 14 All. 285. The sheriff may be required to specify the nature of the dis- bursements, item by item; and the items should be verified by his own oath or that of his deputy who paid or received the same. 10 Id. 289, s. c. 31 Ba/rb. 87. Costs and allowances in the action.] The costs in the action in which the attachment is issued are the usual costs provided fot by § 307 of the Code. In addition to those allowances, though, there is allowed to the plaintiff, upon the recovery of judgment by him, the sum of ten per cent, on the recovery as pre- scribed in § 309, for any amount not exceeding two hundred dol- lars; an additional sum of five per cent, for any additional amount not exceeding four hundred dollars; and an additional sum of two per cent, for any additional amount not exceeding one thousand dollars. And if the action is settled before judgment therein, like allowances are allowed upon the amount paid or secured upon the settlement, at one half the rates above specified. CH, IV.] ATTACHMENTS OF PEOPEETY. 129 Code, § 308, In difficult and extraordinary cases, where a defense has been interposed or a trial has been had, the court may also, in its discretion, make a further allowance to any party, not exceeding five per cent., upon the amount of the recovery or claim ; Ih. y as amended, 1865. The rates are estimated upon the value of the property claim- ed or attached. Ih % 309. The percentage may be allowed on the entry of judgment, although no property has been attached. 15 Mow. 224. Disposition of surplus property.] Where the judgment and all costs of the proceedings have been paid, the sherifi", upon rea- sonable demand, is required to deliver over to the defendant the residue of the attached property or the proceeds thereof. Code, § 237. SUPPLEMENT TO CHAPTER lY. The former practice in proceedings to obtain a warrant of attachment, as a provisional remedy in a civil action, as ivell as in proceedings under the Revised Statutes, in respect to attachments against absconding, concealed, and non-resident debtors, has been superseded, and a new practice substituted for the same, by the Code of Civil Procedure. See Code of Givil Pro., §§ 635 to 730, post; Laws of 1877, ch. 417, p. 468. In consequence of those altera- tions in the practice, much of the law in the recent decisions of the courts on the subject, has become obsolete. The decisions, however, are important, as enabling us the better to understand the new statute ; and they are, accord- ingly, noted below ; and further on, are given in full, the sections of the new Code, as well as the more important of the Revisers' notes to them. DECISIONS tTNDEE THE FOEMER PRACTICE. Attachment in action a/rising on contract. An action against a common carrier to recover damages for the loss by negligence of goods entrusted to his care, is not an action arising on contract, so as to entitle a plaintiff to issue an attachment in the action. 48 Barb., 27. Neither can an attachment issue in an action to recover damages for a breach of promise to marry. 1 LamMng, 268. A claim for damages, however, arising upon a breach of a contract by the de- fendant to purchase sound com for the plaiptifE, the breach being that the com was not sound, but heated, sour and unmerchantable, arises on contract. 51 Barb., 30; 8. C, 34 How., 465. And where facts constituting a cause of action 130 ATTAOHMENTS OF PBOPEETT. [CH. IV. on contract are alleged in the complaint, an aJlegation therein of an incorrect legal conclusion, having the aspect of a tort, does not change the nature of the action. 61 If. Y., 583. An attachment cannot issue in an action, where the complaint sets forth several causes of action, some of which, are neither for the recovery of money arising on contract, or for the wrongful conversion of personal property. 9 Hun, 208. Action between partners. In an action between partners for a dissolution, aiid an accounting and judgment for an. alleged- badamce due, an attachment oannot issue, notwithstanding that the defendant is charged with a fraudulent disposition of the property of the firm. 1 Abb., JVl S., 157. Foreign corporations. An attachment lies against a National Bank, located in another State, as a foreign corporation. 3 Abb., N. 8., 359 ; 34 How., 409. Domestic corporations. An attachment cannot issue against a corporation created by or under the laws of this State. 3 Abb., N. 8., 419 ; 8. C, 34 Bow., 496. Contra, now, however, under the new Code, § 636, post. Attachments in actions of torts. A warrant of attachment may issue in an ac' ion for a wrongful conversion of personal property. 34 How. , 66. But not in other actions for torts. 32 Id. , 280 ; and see ante, p. 98. Non-resident and absconding defendant. It is good ground for vacating an attachment issued against an alleged non-resident and absconding defendant, that his absence from his place of abode was open and notorious ; that he made no efforts to conceal the same ; that his conduct was not designed to place any one on a false scent, or to evade service of process, and that he omitted nothing that he was legally bound to do, to enable the plaintiff to find him. 3 Abb. ,N. 8., 444. The only requisites for issuing an attachment against a non-resident, are, that the aiitiou should be for the recovery of money ; that the same should be on contract ; that the plaintiff should specify the amount of the claim, and the grounds of the demand; and that the defendant should.be a. non-resident. 51 Barb., 30; 8. C, 34 How., 465. It Is not necessary also to allege that thede- f endant has property In this State. lb. Where the defendant left the United States for a distant country, to take charge of three trading vessels, in which he was interested, which actually performed several voyages foom and to different distant foreign ports — such absence continuing for about two years and a half ; it was held he was a non-resident within the meaning of the Statute, notwith- standing he had continued to keep up his house in the city of New York as be- fore. 2 liobertson, 701. So, a person who maintains his family in another State, and frequently resorts to his home with them there, may be deemed a non- resident under the attachment laws, notwithstanding his place of business is in this State, and although he lodges and takes his meals in this State. 11 Abb. , N. 8. , 407. It is not necessary that the affidavit should state in positive terms that the defendant is a non-resident ; it is sufScient, if from the facts set forth in the affidavit, that conclusion must necessarily follow. 4 Sun, 487. The Code does not authorize an attachment in an action against a non-resident, for the taking and conversion of personal property in another State. 3 liobertson, "681. In an action in the District Court of the City of New York, where the affi- davit stated the amount and nature of the debt ; that defendant had said, she could not pay ; that she had disposed of her property and was about to leave for Canada to reside ; and also aUegiug that defendant was about to secrete and dis- pose of her property to defraud her creditors ; it was held, that the affidavit was sufficient to confer jurisdiction, and authorize the issuing of an attachment. 61 iV. T. , 22. The allegations in an affidavit, in relation to the departure of the defendant from the jurisdiction of the court, must be sworn to positively and not upon information and belief. 5 Hun, 569. Fraudulent disposition of property. Where a debtor refuses to pay his note on demand, and on being told by the holder that he will be sued, threatened that if he Is sued he will turn over all his properfy, and that the holder " wiU not get a cent," the property of the debtor is liable, on such threat, to attachment. 3 liobertson, 626. Attachment against partners, one of them a resident. Where the attachment issued against three persons, partnem, on the ground of their being non-residents on which the sheriff levied upon some of the partnership property, and the attach- CH. IV.] ATTACHMEIfTS OP PEOPEETT. 130-1 ment was subsequently vacated as to one of the partners, on the ground that at the time it was issued he was a resident of this State ; it was held that the mere levy of the attachment did not operate per se as an appropriation of the entire property in the goods to the payment of the plaintiff's debt, and that the sheriff under an execution issued in such suit, could not sell the interest of the resident debtor, but only the right, title, and interest of the non-resident defendants. 4 lioberUon, 106 ; and see 59 Barb., 519. If the sheriff, in such case, sells the en- tire property, he will be a trespasser ab initio as much as if he should sell the entire property of a partnership on execution issued upon a judgment against one partner for his individual debt. 4 Robertson, 106. The authority of a county judge to issue attachments, is not restricted to ac- tions in the Supreme Court to be tried in his county. 54 N. Y. , 164. _ An attachment issued by the District Court of the City of New York will be void unless a bond be given in the form prescribed by the Revised Statutes (3 Eev. Stat., 230, § 29). 61 iV; 7!. 22. i'orm of the attachment. The attachment is not void because it omits to state " that it was issued in an action then pending." 34 How., 465 ; S. C, 51 Barb., 30. The undertaking and affidavit. The affidavit, among other things, must sho* the grounds of the cause of action, and the omission constitutes a defect of juris- diction which cannot be remedied by amendment. 33 How., 129. The afBdavit must state the facts out of which the cause of action arose : a mere recital of the facts without a direct statement of their existence is not sufficient. 4 Hun, 638. An affidavit which states that a cause of action exists, and refers to a sworn copy of the complaint aimexed thereto, in which the cause of action is particularly set forth, is sufficient. 6 Hun, 48.8. It is not necessary that the affidavit should show the issuing of the summons, but it is sufficient if both are delivered to the sheriff together. 51 Barb., 30, 32; S. C, 34 Row., 465., After an attachment, issued under the Code, has been vacated on the ground that it was not author- ized by the facts of the case as presented by the affidavits of the parties to the action, an undertaking given to procure the discharge of property levied under the attachment, is not invalidated. 12 Abb., IST. 8., 324, reversing 10 Id., 163. It would be different, it seems, if the attachment had been vacated upon the in- sufficiency of the original affidavit. 12 Abb., N. S., 324. The affidavit as well as the undertaking, given on procuring the attachment, are required to be forth- with filed with the clerk of the court, Sup. Court Rules, 1871, No. 5 ; though the omission to do so, it sfeems, will not affect the validity of the warrant of attachment or the proceedings under it. 36 How., 253, and see 10 Abb., N. 8., 393. Attachment and service of summons by publication. Where the summons is issued and an attachment levied upon the defendant's property, more than thirty days before the service of the summons and complaint upon the defendant out of the State (no publication of the summons having been made), the attachment becomes whoUy void under § 237 of the Code, as amended 1866, and will be set aside on motion. 35 How. , 356, and see 1 Hun, 710. But does net invalidate the proceedings under the attachment as to third persons. 4 Hun, 315. Discharging attachment as to part of property. The attachment cannot be dissolved as to a part of the property, merely upon giving security as to such part under §§ 240, 241 (ante, p. 120) ; but such application must relate to the whole of the property levied upon. 5 Abb., N. 8., 54. An attachment against a non-resident debtor, may, if a cause of action is shown to exist, be issued at the time of issuing the summons, or any time after- wards, and may be levied upon the property of the debtor before the service of the summons. 54 N. Y, 164 ; and see 10 Abb., N. 8., 395, and 15 Id., 193. Attachment how and wlien levied. To attach a debt due to the defendant, the notice served should specify the debt. And a notice referring in general terms to all debts and property of the defendant, is not enough to give the plaintiff priority over subsequent proceedings of other creditors. 2 Abb., N. 8., 272, and see 83 How., 316; 41 N. Y., 210, rmersing 54 Barb., 78; 61 i^. Y, 583; 15 Abb., N. 8., 222, reversing 14 Abb., N. 8., 314; but see contra, 56 iV. Y., 520. Property capable of manual delivery, can only be attached by the sheriff taking 130-2 ATTACHMENTS OF PEOPEBTT. [CH. IV, it into his custody. 4 Hun, 634 ; and see 42 JT. T., 132. In oases of non-resi- dents, the attachment, together with the inventory, must be served by leaving copies with the person in possessioQ of the property. 63 Bwrb., 430. Where the interest of a member of a partnership is attached, the sheriff may take posaes- gion of the partnership property, and sell the interest of the debtor in it, and deliver the property to the purchaser. 59 Barb., 519; and see 42 N. Y., 182. A levy under an attachment can only be made before judgment, upon the recovery of which the power to levy under the attachment ceases, and no new right or interest in the property of the defendant can be acquired under it. 52 N. r., 181. S. O., 14 Abb., Jf. S., 85. Attachment of equitable interests. Unless property is so situated as to be attachable according to the provisions of the Code (§§ 227 to 245) it cannot be attached. Thus, debts and choses in action are so situated that the attachment acts directly upon the legal title to them ; and where the exercise of the equita- ble powers of the court are required to place them in that situation, they cannot be attached. 50 N. T., 80, but see contra, 51 N- Y., 519, reversing 28 Sow., 502. Property incapable of manual delivery. The property of a principal in the proceeds of sales and collections, in the hands of his agent, is ' ' property incapa- ble of manual delivery," within the meaning of § 235 of the Code, and can only be attached in the manner prescribed by that section. 61 JT. Y., 583. Jjien of the attachment. No lien is acquired until the actual service of the attachment in the manner required by the statute. 52 If. Y., 181 ; and see 45 JT. Y., 379, Z Lansing, 180. Attaching creditors take precedence like creditors by execution, in the order in which the process comes to the sheriff's hands. 33 JBbto., 316. And so the party attaching property in the possession of his debtor, acquires a specific lien on his interest therein, and is entitled, like a judgment creditor, to impeach the title of a fraudulent mortgagee. 34 iV. Y. , 253 ; and Bee 51 Id. , 519, but see contra, 50 Id., 80. Where a judgment has been recovered and a levy made upon the same goods as attached by virtue of an execution issued in the action, the title of the officer levying under the attachment is de- termined, and the attachment and levy thereunder cease to bind the goods. 62 Barb., 430. An assignment to a duly appointed assignee in bankruptcy dissolves the lien of an attachment issued by a State court, and levied upon the property of the bankrupt within four months of the commencement of the bankruptcy proceedings. 58 N. Y. , 253. A creditor whose debt has been levied on, by vir- tue of an attachment, can convey no title to the debt until the levy has been removed. 11 Abb., N. 8., 20. A bank deposit which has been attached is not subject to an outstanding check made by the debtor, which had not, prior to the levy of the attachment, been presented and accepted by the bank. 60 N. Y., 151. Lis-pendent, ^eet of faUure to file. The failure to file a lis-pendens, where teal propertiy is attached, until after the docketing of a judgment in another action, does not give to such judgment priority over the lien created by the levy under the attachment ; a judgment lien is not an incumbrance within the mean- ing of § 132 of the Code. 45 JV. Y., 379, affirming 55 Ba/rb. , 9 ; and see 6 Lans- ing, 284, per MulUn, J. Betum of officer making levy. It must appear from the return of the officer making the levy by virtue of a warrant of attachment issued pursuant to the provisions of Uie non-imprisonment act, that the attachment was properly served, otherwise the justice will lose jurisdiction, and the proceedings under the attachment will be void. 62 Ba/rb., 430. The fiulnre of the sheriff to make and return an inventory, as required by the Code, wiU not, it seems, invalidate a levy under attachment. 11 Ajbb,, If. 8., 20. Title to property purchased at execution sale in attachment cases. A purchaser at an execution sale of real estate under a judgment, in an action where an attachment has been issued, acquires no greater title to the property than the debtor had at the time of the docketing of the judgment. 6 Laming, 234. Sheriff may proceed to coUeet debts, etc. The action brought to enforce the osUection of claims levied under an attachment must be brought in the name of IMe sheriff, or of the debtor in the attachment. Section 338 of the Code, only CH. IV.] ATTACHMENTS OF PEOPEETT. 130-3 enables the plaintiff to bring the action in the name of the sheriff, or to take control of and direct the action when commenced by the sherifi. 3 Hun, 1 : and see 14 Abb., N. 8., 314 ; 50 Jf. T., 80 ; lb., 128 ; 11 Abb., JV. 5., 78; 44 Jf. T., 181. But see contra, 51 N. T., 519, and the amendment to § 238 in Laws 1875, p. 487. The sheriff has no authority to institute actions to reach mere equita- ble assets, or to bring in other parties for the purpose of attaching a transfer of such property as fraudulent. 50 N. K, 80; but see contra, 51 Id., 519. Money paid by mistake pursuant to an attachment, cannot be" recovered back from the attaching creditors ; the party upon whom the attachment is served is chargeable with notice of its contents. 60 iV. n, 151, affirming 4 ulJ6., JV. A, 34, and reversing 11 Id., 116. Motion to vacate attachment. There is no express limitation of the time within which a motion must be made to vacate an attachment. Thus, the mo- tion of the defendant to open a default, and the order of the court granting it, but allowing the judgment to stand as security, does not preclude the defendant from moving to set aside an attachment issued in the action. 33 How., 129. So the pendency of an appeal by the plaintiff from a judgment entered in the action in which the attachment issued, does not affect the right of the defendant to move to set the attachment aside. 36 How. , 115. And a motion may be made to set an attachment aside for irregularity even after judgment obtained , and execution issued in the action. 34 How. , 409. A subsequent attachment creditor cannot move to discharge an attsichment issued in a prior suit, on the ground that it was irregularly issued. 1 Abb., iV. 8., 157, affirming 46 fiar J. , 43. It is not necessary for the defendant to put in a general appearance, to entitle him to move to set aside the attachment issued in the action. 1 Abb. , iT. 8., 255. When the motion to vacate the attachment is made upon the plaintiff's affidavit alone, no further affidavits are admissible on his part ; but where the motion is made upon affidavits made by the defendant or on his behalf, the plaintiff is entitled to oppose the motion by affidavit, either explaining or contra- dicting those made by the defendant. 61 Barb., 266. The motion to vacate oi set aside the attachment may be made in all cases, for the same causes as in case of other provisional remedies ; upon the merits of the motion ; irregularity ; or for any other cause, lb. An appeal lies to the Court of Appeals, from an order of the general term, re- fusing to vacate an attachment, where such vacation is asked for as a matter of law and of strict right, and not involving any question of discretion. 37 Jf. T. , 533, and see 44 /A, 271. Tlie power of the sheriff to discontinue proceedings under warrants of attach- ment, is limited to such times, and upori such terms, as the court or judge may direct ; and such discontinuance wiU not be allowed, where the rights of any person interested in the subject attached will be injured. 16 Abb., N. 8, 212. Sheriff'' s fees. These have recently been regulated by statute as to the fees of sheriffs in all the counties of the State, except the counties of New York, Kings, and Westchester, in proceedings by attachment under the Eevised Stat- utes (post, p. 474), and against ships and vessels (post. pp. 482, 484). The fees allowed in these proceedings are :— For serving an attachment against the prop- erty of the debtor, or against a ship or vessel, one dollar, with such additional compensation for his trouble and expenses in taking possession of and preserving the property attached, as the officer issuing the warrant shall certify to be rea- sonable ; and when the property so 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. For making and returning an inven- tory and appraisal, such compensation to the appraisers, not exceeding one dollar to each per day for each day actually employed, as the officer 'issuing the attach- ment shall allow, and twenty-five cents per folio for drafting, and twelve and a half cents per folio for copying the inventory. For selling any property so at- tached, and for advertising such sale, the same aUowanoe as for sales on exe- cution. Laws of 1871, p. 823. The provisions of the new Code of Civil Pro- cedure do not affect the above statutory regulations in respect to the fees of Where an action in which property has been seized by the sheriflE under an 130-4 ATTACHMENTS OF PEOPBETT. [OH. IV. attachment is settled, the sheriff is entitled to poundage upon the amount at which such settlement is effected. 9 Hun, 205. The fees of the sheriff in at- tachment cases may be settled by the officer issuing the attachment, while hold- ing special term at chambers, lb. THE IfEW PEACTICE UNDBE THE CODE OP CIVIL PEOCBDUEB. The following are the sections of the Code of Civil Procedure, on the subject of attachments of property as a provisional remedy. The sections are given in full, and appended to them are most of the notes of the Eevisers. See Laws, 1876, ml. 2, p. 307. § 635. iAm'd 1877.] In what actions a warrant of attaehment may be graMed. A warrant of attachment against the property of one or more defend- ants in an action, may be granted upon the application of the plaintiff, as speci- fied in the next section, where the action is to recover a sum of money only, as damages for one or more of the following causes : 1. Breach of contract, express or imphed, other than a contract to marry. 2. Wrongful conversion of personal property. 3. Any other injury to personal property, in consequence of negligence, fraud, or other wrongful act. [Code of Pro., § 227 (ante, p. 98). An " injury to property " in defined by sub. 9 of § 2, of the Temporary Act. See ante, p. 9B-4, note to § 549, and see the note to the next following section.] § 636. [Ani'd 1877.] What must be shown to procure the warrant. To en- title the plaintiff to such a warrant, he must show by affidavit, to the satisfac- tion of the judge granting the same, as follows ; 1. That one of the causes of action specified in the last section exists against the defendant. If the action is to recover damages for breach of a contract, the affidavit must show that the plaintiff is entitled to recover a sum stated therein, over and above all counter claims known to him. 2. That the defendant is either a foreign corporation, or not a resident of the State ; or if he is a natural person and a resident of the State, that he has de- parted therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent ; or, if the defendant is a natural person or a domestic corporation, that he or it has re- moved, or is about to remove, property from the State, with intent to defraud his or its creditors ; or has assigned, disposed of, or secreted, or is about to as- sign, dispose of or secrete property, with the like intent. [Code of Pro., §§ 227, 239 (ante, p. 98 to 105), excluding the last clauses of each, specifying in what actions, and upon what proof, a warrant of attachment may be granted, amended so as to set- tle questions of construction, as to which the authorities conflict ; co extend the remedy to all cases of tort, where the damages are capable of a money valuation ; to allow it against a domestic corpora- tion, in certain cases specified ; and to reconcile the inconsistencies between these two sections ol the Code. Sev. Notes, Laws, 1876, vol. 2, p. 307.] §687. [J.»i'(il877.] Warrant in action against public offleer, etc., for pecu- lation. A warrant of attachment against the property of one or more defend- ants in an action, may also be granted upon the application of the plaintiff, where the complaint demands judgment for a sum of money only : and it ap- pears by affidavit, that the action is brought to recover money, funds, credits or other property, held or owned by the State, or held or owned officially or otherwise, for or in behalf of a public or governmental interest, by a municipal or other public corporation, board, officer, custodian, agency, or agent, of the State, or of a city, county, town, village, or other division, sub-division, depart- ment, or portion of the State, which the defendant has, without right, obtained received, coriverted, or disposed of; or in the obtaining, receptidn, payment,' conversion, or disposition of which, without right,» he has aided or abetted ; or to recover damages for so obtaining, receiving, paying, converting, or disposing of the same ; or the aiding or abetting thereof. In order to entitle the plaintiff to a warrant of attachment in a case specified in this section, he must show, by affidavit, to the satisfaction of the judge granting it, that a sufficient cause of action exists against the defendant, for a sum stated in the affidavit. CH. IV."] ATTACHMENTS O* PROPERTY. 130-5 § 638. [Am'd 1877.] When and by whom the warrant may be granted. The warrant may be granted by a judge of the court, or by any county judge, to accompaiiy the summons, or at any time after the commencement of the ac- tion, and before final judgment therein. Personal service of the summons must be made upon the defendant, against whose property the warrant is granted, within thirty days after the granting thereof ; or else, before the expiration of the same time, service of the summons by publication must be commenced, or sei-vioe thereof must be made without the State, pursuant to an order obtained therefor, as prescribed in this act ; and if publication has been, or is thereafter commenced, the service must be made complete, by the continuance thereof. tCode of Pro., §§ 227, 228, anU, p. 98, 108.] § 639. [ArrC'd 1877]. Affidamt-i to be filed. The plaintiff procuring the war- rant must, within ten days after the granting thereof, cause the affidavits, upon which it was granted, to be filed in the office of the clerk. \A71te, p. 107.] § 640. Security/ on obtaining warrant. The judge, before granting the war- rant, must require a written undertaking, on the part of the plaintiff, with sufficient sureties, to the effect, that if the defendant recovers judgment, or if the warrant is vacated, the plaintiff wiU pay all costs which may be awarded to the defendant, and aU damages which he may sustain by reason of the attach- ment, not exceeding the sum specified in the undertaking, which must be at least two hundred and fifty dollars. But this section does not apply to a case where the action is brought for a cause specified in section 687 of this act, or where it is specially prescribed by law that security may be dispensed with, or where the security to be given is specially regulated bylaw. [Code of Pro., § 230, a7ite p. 107.] §641. Contents of warrant ; to whom directed. The warrant must be sub- scribed by the judge and the plaintiff's attorney, and must briefly recite the ground of the attachment. It may be directed, either to the sheriff of a particu- lar county, or, generally, to the sheriff of any county. It must require the sheriff to attach and safely keep so much of the property within his county which the defendant has, or which he may have, at any time before final judg- ment in the action, as will satisfy the plaintiff's demand, with costs and expenses. The amount of the plaintiffs demand must be specified in the warrant, as stated in the affidavit. Warrants may be issued at the same time to sheriffs of different counties. [Code of Pro. , § 231, ante, p. 108.] § 642. Validity of undertaking. It is not a defence to an action upon an undertaking given upon granting a warrant of attachment, that the warrant was grranted improperly for want of jurisdiction or for any other cause. [New provision to change the rule laid down in 7 Barb., 233, and 12 Abb. Pr., 324, under the ex- isting statute, that it is a defence to an action upon an undertjiking, given upon procurmg a war- rant of attachment, that the warrant was improperly granted. — Rev. Notea.'\ § 644. Sheriff must attach property of defendant. The sheriff must imme- diately execute the warrant, by levying upon so much of the personal and real property of the defendant, witiiin his county, not exempt f rbm levy and sale by virtue of an execution, as will satisfy the plaintiff's demand, with the costs and expenses. He must take into his custody all books of account, vouchers, and other papers, relating to the personal property attached, and all evidence of the defendant's title to the real property attached, which he must safely keep, to be disposed of as prescribed in ' this title. The sheriff, to whom a warrant of at- tachment is delivered, may levy from time to time, and as often as is necessary, until the amount for which it was issued has been secured, or final judgment has been rendered in the action, notwithstanding the expiration of his term of office. [Code of Pro., §§ 281, 232, ante, pp. 109, 110, 111.] § 645. What interest in real property may be attached. The real property, which may be levied upon by virtue of a warrant of attachment, includes any in- terest in real property, either vested or not vested, which is capable of being aliened by the defendant. [New provision, allowing a warrant of attachment to be levied upon a contingent interest in real property. — Kev. Notea.l § 646. Attachment of unpaid subscription to foreign corporation. Under a warrant of attachment against a foreign corporation, other than a corporatioa 130-6 ATTACHMENTS OF PEOPERTT. [cH. IV. created by or under the laws of the United States, the sherifE may levy upon the sum remaining unpaid upon a subscription to the capital stock of the corporation, made by a person within the county ; or upon one or more shares of stock therein, held by such a, person, or transferred by him for the purpose of avoiding pay- ment thereof. § 647. Attachment of aha/res in a corporation. The rights or shares which the defendant has in the stock of an association or corporation, together with the interest and profits thereon, may be levied upon ; and the sheriff's certificate of the sale thereof entitles the purchaser to the same rights and privileges with respect thereto which the defendant had, when they were so attached. §648. [ Am' d 1877.] Attachment of a cause of action, bond, note, etc. The attachment may also be levied upon a cause of action arising upon contract ; in- cluding a bond, promissory note, or other instrument for the payment of money only, negotiable or otherwise, whether past due or yet to become due, executed by a foreign or domestic government, State, county, public officer, association, mu- nicipal or other corporation, or by a private person, either within or without the State ; which belongs to the defendant and is found within the county. The levy of the attachment thereupon is deemed a levy upon, and a seizure and attach- ment of, the debt represented thereby. [New provisions, allowing a warrant of attacliment to be levied upon certain negotiable paper, and other securities of municipalities, or individuals. Ben. Notes, and see anie, pp. Ill, 113.] § 649. Mow property to be attached. A levy under a warrant of attachment must be made as follows : 1. tJpon real property, by filing with the clerk of the county where it is situ- ated a notice of the attachment, stating the names of the parties to the action, the amount of the plaintiff's claim as stated in the warrant, and a description of the particular property levied upon. The notice must be subscribed by the plaintiff's attorney, adding his office address ; and must be recorded and indexed by the clerk in the same book, in like manner and with like effect, as a notice of the pendency of an action. 2. Upon personal property, capable of manual delivery, including a bond, promissory note, or other instrument for the payment of money, by taking the same into the sheriff's actual custody. 3. Upon other personal property, by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same ; or, if it consists of a demand, other than as specified in the last subdivision, with the person against whom it exists ; or, if it consists of a right or share in the stock of an association or corporation, or interest or profits thereon, with the president, or other head of the association or corporation, or the secretary, cashier, or managing agent thereof. [Code of Pro., S§ 233, 236 ; ante, pp. 113, 114.] § 650. Certificate of defendant's interest to be furnished. Upon the applica- tion of a sheriff, holding a warrant of attachment, the president or other head of an association or corporation, or the secretary, cashier, or managing agent thereof, or a debtor of the defendant, or a person holding property, including a bond, promissory note, or other instrument for the payment of money, belonging to the defendant, must furnish to the sheriff a certificate under his hand, speci- fying the rights or number of shares of the defendant in the stock of the associa- tion or corporation, with all dividends declared, or incumberances thereon ; or the amount, nature, and description of the property held for the benefit of the defendant, or of the defendant's interest in property so held, or of the debt or deman(f owing to the defendant, as the case requires. [Code of Pro., S 236 ; ante, p. 116.] § 651. Person* refusing or giving false certificate may be examined. If a person to whom application is made, as prescribed in the last section, refuses to give such certificate ; or if it is made to appear by affidavit, to the satisfaction of the court or a judge thereof, or the county judge of the county to which the warrant is issued, that there is reason to suspect that a certificate given by him is untrue, or that it fails fully to set forth the facts required to be shown there- by ; the court or judge may make an order directing him to attend, at a speoi- CH. IV.] ATTACHMENTS OF PEOPEETT. 130-7 fied time, and at a place within the county to which the warrant is issued, and BQbmit to an examination under oath concerning the same. The order may, in the discretion of the court or judge, direct an appearajice before a referee named therein. [Code o( Pro., % 336, last sentence, requiring an officer ot a corporation, or a debtor, to give a certificate of the defendant's interest, for the purpose of a levy of a warrant of attachment, amended BO as to provide, not only for a refusal to certify, but for the giving of a false certiflcate. Sev. Notea.] § 653. RighU of owner or master of vessel on which goods haw been shipped. Except as otherwise prescribed ia the next section, the owner or master of a vessel, on board of which goods of a defendant, against whom a warrant of at- tachment is issued, have been shipped for transportation, without reshipment or transhipment, in the State, to a port or place without the State, may transport and deliver them according to their destination, notwithstanding the warrant, unless the plaintiff, his agent or attorney, executes to the owner or the master of the vessel a written undertaking, with sufficient sureties, in a sum specified therein, to pay him all expenses, damages, and charges which may be incurred by him, or to which he may be subjected, for unlading the goods from the vessel, and for all necessary detention of the vessel for that purpose. The undertaking must be approved with respect to its form, the sum specified therein, and the suffi- ciency of the sureties, by a judge of the Court, or the county judge of the county wherein the vessel is situated, or in the city and county of New York, by a judge of a Superior City Court within that city and county. § 653. Foregoing section not to a/pply in certain cases. The last section does not apply, where the owner or master, before the shipment of the goods, had actual information of the grantii^ of the warrant, or where he has, in any wise, connived at, or been privy to, the shipment thereof, for the purpose of screen- ing them from legal process, or of hindering, delaying, or defrauding creditors. § 654. Sheriff must make inventory. The sheriff must, immediately afrer levying under a warrant of attachment, make, vrith the assistance of two disin- terested freeholders, a description of the real property, and a just and true in- ventory of the personal property, upon which it was levied, and of the books, vouchers, and other papers taken into his custody, stating therein the estimated value of each parcel of real property attached, or of the interest of the defen- dant therein, and of each article of personal property, enumeratii^ such of the latter as are perishable. The inventory must be signed by the sheriff and the appraisers ; and must, within five days after the levy, be filed in the office of the clerk of the county where the property is attacked. [In these and other sections of the title, relating to the attachment of property, the provisions ot 2 R. S., 1-15. §§ 1-73 (.3 E. 8.. 5th ed., 78-90 ; 2 Bdm., 1-16), entitled "attachments against ab- sconding, concealed, and non-resident debtors " {ante, p. 129), have been retained, so far as they are applicable to a warrant of attachment, in an action under the Code. It is proposed to repeal the re- mainder, as the remedy under the R. S. has become practically obsolete, Beo. Notes^ § 655. Sheriff may maintain action. The sheriff must, subject to the direc- tion of the court or judge, collect and receive all debts, effects, and things in action, attached by him. He may maintain any action or special proceeding, iu his own name, or in the name of the defendant, which is necessary for that pur- pose, or to reduce to his actual possession an article of personal property, capable of manual delivery, but of which he has been unable to obtain possession. And he may discontinue such an action or special proceeding, at such time and on, such terms, as the court or judge directs. § 656. (Amd. 1877.) Perishable goods and anvmoHs to be sold. If property at- tached, other than a vessel, is perishable, the court or judge may, by an order made with or without notice, as the urgency of the case in its or his opinion requires, direct the sheriff to sell it at public auction, and thereupon the Kheriff must sell it accordingly. If it consists of live animals the same proceedings may be had, but such notice shall be given to the parties to the action, of the appli- cation for the order as the court or judge prescribes. The order directing the sale must prescribe the time and place of the sale, and notice thereof must be given in such manner, and for such time as is prescribed in the order. The sheriff must retain in his hands the proceeds of the sale, after deducting hia expenses as allowed by the court or judge. § 657. Claim of property, Turn tried. If goods or effects, other than a vessel, 1 1 ^ ^ ^ 130-8 ATTACHMENTS OF PROPERTY, [CH. IV. attached as the property of the defendant, are elaimed by or in behalf of another person, as his property, the sheriff may, in his discretion, impanel a jury to try the validity of the claim. §658. [Am' d 1817 .'] Proceedings if claimant succeeds. If by their inquisition the jury find the property of the goods or effects to have been in the claimant, at the time of the levy, the sheriff must forthwith deliver them to him or his agent ; unless the plaintiff gives an undertaking, with sufficient sureties, to in- demnify the sheriff for the detention thereof. If the undertaking is given, the sheriff must detain the goods or effects, as the property of the defendant. § 659. Finding, not to prejudice right of claimant. If the property is found to be in the defendant, the finding does not prejudice the right of the claimant to bring an action, to recover the goods or effects, or the value thereof. § 660. Proceedings on claim to domestic vessel. Where a vessel, belonging to a port or place in the United States, or a share or interest therein, is attached, the court or judge, on the application, within thirty days thereafter, of a person claiming title thereto, or of his agent, must appoint three indifferent persons to make a valuation thereof. [2 B. S., B, part 2, oh. 5, tit. 1, art 1, § 1.3, post, p. 482.1 § 661. [jlm'ti 1877.] Appraisers to be sworn; valuation to be returned. A valuation of a vessel, or of a share or interest therein, made as prescribed in this article, must be in writing, and subscribed by the appraisers ; each of whom must take and subscribe an affidavit, annexed thereto, to the effect, that the valua- tion is, in all respects, just and fair, and that the value of the vessel, share, or interest, is truly stated therein, according to the deponent's belief. The valua- tion must be immediately returned to the court or judge ; and after an under- taking is given, or after the expiration of the time to give an undertaking, as prescribed in the next section, it must be delivered to the sheriff. § 663. Undertaking to be given. Within two days after the valuation is re- turned, the claimant or his agent may execute an undertaking to the sheriff, with sufficient sureties, approved by the court or judge who must justify in twice the appraised value, to the effect, that, in an action to be brought on the under- taking, the claimant will establish that he was the owner of the vessel, share or interest, at the time of the levy thereupon ; and that in case of his failure to do so, he will pay the amount of the valuation, with interest from the date of the undertaking, to the sheriff ; or, if the warrant is vacated or annulled, to the de- fendant, or his personal representative. § 663. Vessel ; when to be. disclmrged. Upon such an undertaking being exe- cuted and delivered to the sheriff, the court or judge must make an order, di- recting the vessel or share to be discharged from the attachment. Thereupon the sheriff must discharge the same accordingly. § 664. yfhen undertaMng to be sued. The court or judge may, upon the application of either party, at any time before the warrant is vacated or annulled, direct the sheriff to comfaence an action upon the undertaking, upon such terms and. conditions, and under such regulations, between him and the applicant, as it or he deems just. And if the warrant or attachment is vacated or annulled, the defendant in the attachment, his assignee or personal representative, may commence and maintain an action upon the undertaking, or may be substituted, in place of the sheriff, in an action pending thereupon. § 665. Defence in such an action ; plaintiff's recovery. In such an action, the claimant may show, in bar of >i recovery, that he was the owner of the ves- sel, share, or interest, at the time when it was attached. If judgment passes against him, the plaintiff is entitled to recover the amount of the venation, with interest from the date of the undertaking. § 666. Foreign vessel /um valued. Where a. foreign vessel, or a share or in- terest therein, is attached, it must be valued, as prescribed in sections 660 and 661 of this act, upon the application of a person, who makes affidavit, to the effect that he is the owner thereof, or that he is the agent of a person, naming him and his residence, whom he believes to be the owner of the vessel, share, or interest attached. § 667. .Notice thereof. Such notice of the application must be given to the plaintiff, as the court or judge deems reasonable. CH. IV.] ATTACHMENTS OF PROPERTY. 130-9 § 668. Plaintiff to give undertaking with sureties. Within three days after the valuation is returned, the plaintifE must give, to the person in whose behalf the claim is made, an undertaking, with sufficient sureties, approved by the court or judge, who must justify in twice the appraised value, to the eEEeot that they will pay such damages as may be recovered for seizing the vessel, share, or interest, in an action brought against the sheriff, or the plaintiff in the attach- ment, within three months from the approval of the undertaking, if it appears therein that the vessel, share, or interest belonged, at the time of attaching it, to the person in whose behalf the claim is made. § 609. Vessel ; when to be discharged. Unless such an undertaking is given, the court or judge must grant an order discharging the vessel, share, or interest so claimed, from the attachment ; whereupon the sheriff must discharge the same accordingly. § 670. Terms on which debtor may claim vessel. If after such an undertaking is given by the plaintiff, the warrant is vacated or annulled, or the attachment is discharged as to the vessel, share, or interest, the defendant or his agent is en- titled to claim the same, or the proceeds thereof, i£ it has been sold, only upon his showing, to the satisfaction of the court or judge, that the undertaking has been discharged ; or giving to the plaintiff an undertaking, with sufficient sure- ties, approved by the court or judge, who must justify in twice the appraised value, to the effect, that they will indemnify the plaintiff against all charges and expenses, in consequence of the undertaking. § 671. When vessel to be sold. If the undertaking of the plaintiff is not dis- charged, or he is not indemnified, as prescribed in this article, within one month after the defendant becomes entitled to claim the vessel, share, or interest, as so prescribed, it may be sold by the sheriff, in whose custody it is, upon an order of the court or judge ; and the proceeds of the sale must be paid to the persons who executed the undertaiing, for their indemnity. § 672. The game. If a claim is not made, by or in behalf of an owner of a domestic vessel, or of a share or interest therein, within thirty days after it is attached, or if the proper undertaking is not executed by the claimant ; or if a claim is not made, within that time, by or in behalf of the owner of a foreign vessel, or of a share or interest therein ; the vessel, share, or interest, may be sold by the sheriff, under an order of the court or judge upon the application of the plaintiff, if, in the opinion of the court or judge, a sale is necessary. § 673. The same. Where a share or interest in a vessel, foreign or domestic, is attached, if the proper claim to it is not made, by or in behalf of an owner thereof, within thirty days thereafter, it may be sold by the sheriff, under an order of the court or judge, upon the application of a joint owner, or his agent. § 674. \Am'd 1877.] Sheriff to keep property. The sheriff must keep the property attached by him, or the proceeds of property sold, or of a demand col- lected by him to answej any judgment that may be obtained against the defen- dant in the action. 8 675. Sheriff' may be directed to pay money into court. But the court upon the application of either party to the action, may direct the sheriff, either before or after the expiration of his term of office, to pay into court the proceeds of a demand ooUected, or property sold ; or to deposit them in a designated bank or trust company, to be drawn out only upon the order of the court. 8 676. iAm'd 1877.] When he ma/y be directed to release or ddiver property. Where the proceeds of the property sold, and of the demands collected by the sheriff, exceed the amount of the plaintiff's demand, with the costs and expen- ses and of all other warrants of attachment or executions m the sheriff's hands, chargeable upon the same ; the court, or the judge who granted the warrant, upon the application of the defendant, or of an assignee of, or purchaser from the defendant, and upon notice to the plaintiff, and the plaintiffs m the other warrants or executions, may, at any time during the pendency of tihe action make an order, directing the sheriff to pay over the surplus to the applicant, and to release from the attachment the remaining real and personal property 8 677 Plaintiff may bring action in name of himself and the sheriff. The plamtiff, by leave of the court or judge, procured as prescribed m the next sec- 130-10 ATTACHMENTS OF PEOPEETT. [CH. IV. tion, may bring and maintain, In the name of himself and the sheriff jointly, by his own attorney, and at his own expense, any action which, by the provisions of this title, may be brought by the sheriff to recover property attached, or the value thereof, or a demand Attached, or upon an undertaking given as prescribed in this title, by a person other than the plaintiff. The sheriff must receive the proceeds of such an action, but he is not liable for the costs or expenses thereof. Costs may be awarded, in such an action, against the plaintiff in the warrant, but not against the sheriff. [Code of Pro., S 238 (ante, pp. 133, ISl) : and see 3 Hun, 1 ; 50 N. T., 80 ; 51 Id., 519; ante, p. 130-8.] § 678. Hmo leave to bring such action procured. The court or judge must grant leave to bring such an action, where it appears that due notice of the ap- plication therefor has been given to the sheriff : but, before doing so, the court or judge may require that notice of the application be given to the plain- tiff in any other warrant against the same defendant. And such terms, condi- tions, and regulations may be imposed in the order granting leave, as the court or judge thinks proper for the due protection of the rights and interests of all persons interested in the disposition of the proceeds of the action. § 679. Plaintiff may be joined with sheriff, after action commenced. Leave may, in l&e manner and with like effect, be granted to the plaintiff in the warrant, to be joined with the sheriff, in an action brought by the sheriff, in a case where he might have procured leave to bring the action, as prescribed in the last two sec- tions. Upon an application therefor, the court or judge may, in a, proper case, require the plaintiff to provide for the expenses in the action already incurred by the sheriff. The application must be denied, in case of an unreasonable delay in making it ; or where an application was made before the action was brought, and the plaintiff neglected or refused, without a good cause therefor, to comply with the terms, conditions, or regulations then imposed. § 680. Judge to direct as to management of such an a-ction, etc. The court or judge may, upon the application of the sheriff, or of the defendant in the warrant, during the pendency of an action, brought as prescribed in the last three Bections,'direct as to the conduct, discontinuance, or settlement of the same, and as to the application or disposition of the money or property recovered therein, as justice requires. §681. Itetum of inventory ; how enforced. Upon the application of either party, and proof of the neglect of the sheriff, the court or judge may, by order, require the sheriff to return an inventory. Disobedience to such an order may be punished, as a contempt of the court. § 682. {Am'd 1877.] Motion to vacate or modify warrant, or increase security. The defendant, or a person who has acquired a Uen upon, or interest in, his property after it was attached, may, at any time before the actual appli- cation of the attached property, or the proceeds thereof, to the payment of a judgment recovered in the action, apply to vacate or modify the warrant, or to increase the security given by the plaintiff, or for one or more of those forms of relief, together, or in the alternative. § 683. How motion must be made ; opposing it by new proofs. An application, specified in the last section, may be founded only upon the papers upon which the warrant was granted, in which case it must be made to the court ; or, if the warrant was granted by a judge out of court, to fhe same judge, in court or out of court, and with or without notice, as he deems proper. Or, it may be founded upon proof, by affidavit, on the part o£ the defendant, in which case it must be made to the court ; or, if the warrant was granted by a judge out of court to any judge of the court, upon notice ; and it may be opposed by new proof, by aifi- davit on the part of the plaintiff tending to sustain any ground for the attach- ment recited in the warrant, and no other unless the defendant relies upon a discharge ia bankruptcy, or upon a discharge or exoneration, granted in insolvent proceedings, in which case the plaintiff may show any matter, in avoidance thereof, which he might show upon the trial. §686. [Am^dWTl.} When, prior motion not to pr^udice subsequent motion. The denial of such an application does not prejudice a subsequent application, seasonably made, founded upon the failure of a complaint which had not been CH, IV,] ATTACHMENTS OP PROPERTY. 130-11 filed or served at the time of the former application, to set forth any of the causes of action mentioned in section 635 and section 637 of this act. § 687. Defendant may a/pply for disclmrge of attachment. The defendant may, at any time after he has appeared in the action, and before final judgment, apply to the judge who granted the warrant, or to the court, for an order to dis- charge the attachment, as to the whole or a part of the property attached. § 688. Undertaking to be given. Upon such an application the defendant must give an undertaking, with at least two suflBcient sureties, to the effect that he wUl, on demand, pay to the plaintiff the amount of ajiy judgment which may be recovered in the action against him, not exceeding a sum specified in the undertaking, with interest. The sum so specified must be at least equal to the amount of the plaintiff's demand as specified in his aflEdavit ; or, at the option of the defendant, equal to the appraised value, according to the inventory, of the property attached ; or, if the application is to discharge the attachment, as to a part only of the property attached, to the appraised value of that portion. § 689. Application by one of several defendants. Where there are two or more defendants, and an application is made as prescribed in the last two sections, by one or more, but not by all of them, the undertaking must provide for the pay- ment of any judgment which may be recovered against any of the defendants in the action, unless the applicant makes proof, by affidavit, to the satisfaction of the court or judge, that the property, with respect to which the application ie made, belongs to him separately ; in which case the undertaking must provide for the payment of any judgment which may be recovered in the action against the applicant, either alone or jointly with any other defendant. Where an applica- tion is made, as prescribed in this section, at least two days' notice thereof, with a copy of the affidavit, must be served upon the plaintiff's attorney, who may oppose the application by proof, by affidavit, that one or more of the other defendants own or have an interest in the property. §690. [Am'd 1877.] Sureties to justify if reguired. An undertaking given as prescribed in the last two sections must be forthwith filed with the clerk. A copy thereof, with a notice of the filing, must be forthwith served upon the plaintiff's attorney, who may, within thxee days thereafter, give notice to the sheriff that he excepts to tlie sufficiency of the sureties. Thereupon the sure- ties must justify, upon the like notice, and in like manner, as baU upon an arrest or a new undertaking must be given, with new sureties, who must justify in like manner. If the plaintiff does not except, as prescribed in this section, he is deemed to have waived all objection to the sureties. §691. Sheriff may retain prt^ierty until justification. The sheriff is responsi- ble for the sufficiency of the sureties, and he may retain possession of the prop- erty attached, and the proceeds thereof, until the objection to them is waived, as prescribed in the last section, or they, or the new sureties justify. § 693. Foregoing provisions applicable to vessels. The last five sections are applicable where a vessel, or a share or interest therein, is attached. If it is necessary, to enable the defendant to discharge the attachment, the court or judge may, by order, stay any proceeding specified in article second of this title [ante, §§ 644 to 681], or extend the time to do any act therein specified. § 693. Partners may appl^ to discha/rge attachment. If a warrant of attach- ment is levied upon the interests of one or more partners, in goods or chattels of a partnership, the "other partners, who are not defendants in the action, or any of them, may, at any time before final judgment, apply to the judge who granted the warrant, or to the court, upon an affidavit' showing the facts, for an order to discharge the attachment as to that interest. g 694. [Am^d 1877.] Undertaking to be given. Upon such an application, the applicant must give an undertaking, with at least two sufficient sureties, to the effect that they wiU pay to the sheriff, on demand, the amount of any judgment _ which may be recovered against the partner who is defendant in the action ; or which may be recovered against him in any other action, wherein the other part- ners are not defendants, and wherein a warrant of attachment, or an execution, may come to the sheriff's hands at any time before the warrant of attachment, which was so levied, is vacated or annulled ; not exceeding a sum specified in the undertaking, which must not be less than the value of the interest of Vol. I.— 11 130-12 ATTACHMEIirTS OF PROPERTT. [CH. IV. the defendant; in the goods or chattels seized, by virtue of the attachment, as fixed by the court or judge. If the value, in the opinion of the court or judge, is uncertain, the sum shall be such as the court or j-udge determines. § 695. Court or judge may ascertain value. For the purpose of fixing the sum, or determining the sufficiency of the sureties, the court or judge may receive affidavits or oral testimony, or may direct a reference. § 696. When plMntiff entitled to notice of any appliea,ti.167; 15 Barb. 281 ; S2 Id. 131; iSeld.US; 2 Id. 312 ; 24 Mw York, 399 ; 30 Id. Y2. But a common law certiorari to review a summary conviction under a penal statute brings up, not only questions affecting the jurisdiction of the magistrate, and the regularity of the proceed- ings, but the question whether there was any evidence to warrant the conviction. And, in such cases, the evidence must appear on the face of the record, or the conviction will be quashed. 24 JVew YorTc, 399, s. c. 23 How. 289. And so, where the writ is authorized by the statute, the authority of the court is not limited to questions of jurisdiction and regularity ; but the court has power, also, to examine upon the merits every decision of the court or officer upon a ques- tion 6f law, and to look into the evidence, and affirm, reverse, or quash the proceedings, as justice shall require. 2 Seld. 309 ; 1 Id. 383 ; 3 Barb. S. C. B. 391 ; 25 Wend. 280. The writ of certiorari is a special proceeding, as defined by the Code of Procedure. Code, § 2 ; 19 Wew York, 532 ; and see IHow. 157 ; 14 Id. 627. I. When, and m what Case, the WErr issttes. 1. GeneralVy.] The writ of certiorari may be awarded or di- rected not only to inferior courts, but to persons invested by the legislature with power to decide on the property or rights of the citizen. And it may be awarded, notwithstanding that the court or officer to whom it is directed is authorized finally to hear and determine, unless the jurisdiction is taken away in express terms. 2 Cai. 179, 181; 20 Johns. 430. But the writ will not be granted where the party has another adequate remedy, e. g., by action, or appeal, 1 Hill, 195 ; Tb. 674 ; 2 /d 14 ; 5 Id. 264 ; 2 Wend. 287; 23 Id. 283 ; 6 How. 378 ; 17 Abb. 324 ; 37 Barb. 126 ; though it seems it will be otherwise if there has been a pal- pable usurpation of power by which the party has been injured. 5 Hill, 264, 269, per Cowen, J. And so, it has been held in several cases, that where special circumstances warrant it, the writ would CH. VI.] CEBTIOEAEI TO REVIEW PROCEEDINGS. 153 lie to review a judgment of a justice of the peace, notwithstand ing that the statute authorized the same writ to be issued from the Common Pleas. 5 Wend. 98 ; 5 Mil, 264 ; 3 Denio, 228, 229, note. But, although in general the certiorari will not issue where the party has another adequate remedy, yet the converse of the proposition does not hold true. And therefore, even though the party has no remedy except by certiorari, considerations of pub- lic interest may induce the court not to allow it to issue. 2 Mill, 10. Besides, the certiorari is not a writ of right, but in all cases will be granted or refused according to the discretion of the court. 15 We7id. 198 ; 23 Id. 2Y7 ; 2 Bill, 10 ; 3 Denio, 117 ; 5 £ari. 44 ; 21 Id. 636 ; 24 Id. 640 ; 26 Id. 437; 19 New Torh, 531 ; 17 Abb. 324. It is only acts of a jiididal nature that can be reviewed on certiorari ; and this, 'too, whether the act is that of a judicial officer or a municipal corporation, or otherwise. 4 Oowen, 297; 3 Wend. 464.; 17 Id. 16 ; 2 Hill, 9 ; /i. 14 ; 5 Barl. 43 ; 9 Id. 535; 12 J.55. 88, s. c. 20.5bw. 458; 33 ^tjr-S. 344 ; AZ Barb. 232. Before allowing, or acting upon the writ, it must be made satisfactorily to appear to the court, that wrong has been done ; that the error is of a nature which can be corrected, and that the object sought by the writ would not, if accomplished, be pro- ductive of great inconvenience or injustice. 5 Barb. 44 ; 24 Id. 641. The writ will seldom, if ever, be allowed to enable a party to take advantage of mere technical objections. 5 Ba/rb. 44, 49, per Strong, J. JSTor where the party whose proceedings are sought to be reviewed has a discretion to do the thing complained of, or not. 2 Caimes, 182 ; 20 Johns. 430. Nor, it seems, for the pur- pose of reviewing official proceedings of either a legislative, executive, or ministerial character ; e. g., the ordinances and pro- ceedings of corporations, as such, whether public or private. 2 Hill, 9; and see 12 Abb. 88, s. c. 20 How. 458 ; 33 Barb. 344. Formerly, the judgments of justices of the peace, in certain cases, were reviewed by certiorari issued from the Common Pleas (2 Bev. Stat. 255) ; but this mode has been abrogated, and an appeal under the Code of Procedure substituted for it. Code, §351. Vol. I.— 13 154 CERTIOEABI TO EEVIEW PROCEEDINGS. [CH. VI. 2. To viiferior courts and judicial officers^ The writ is fre- quently resorted to for the purpose of reviewing and correcting the judgments of inferior courts and judicial officers. Thus, a certiorari has been held to lie to the judges of the Common Pleas, to remove proceedings on an appeal to them from commissioners of highways, 2 Gaines, 1T9 ; 15 Johns. 537 ; 24 Wend. 249 ; loHffw. 175 ; and to referees in highway cases appointed to hear and deter- mine an appeal from the decision of commissioners of highways to remove the proceedings had before them, 1 Selden, 568 ; and to the recorder of !N^ew York to review his proceedings under the act relating to absconding debtors, 3 Johns. Oas. 141 ; and to a com- missioner to review proceedings under the act to abolish impris- onment and punish fraudulent debtors, 10 Wend. 608, and see 5 Denio, 554; and the act relating to insolvent debtors, 1 TTewc?. 90; and to the court of sessions of a county to review the pro- ceedings upon an appeal from an order of filiation made by jus- tices of the peace in a case of alleged bastardy, 15 Barb, 287; and see 3 Johns, 23 ; and to remove their proceedings on an order of settlement, 2 Cowen, 575 ; and to review the decision of the Court of Common Pleas of New York in reference to the assess- ment of damages sustaiued by owners of buildings destroyed, to prevent the spreading of a fire. 20 Wend. 139, aff. 25 Id. 157. And so, the writ of certiorari may be awarded to review the proceedings of a magistrate of this State, who, while professing to exercise a jurisdiction conferred by act of Congress, acts \a, the name of the people of this State by writs of the people, directed to State officers. 1 Ba/rh. 8. C. E. 187. And the writ, too, has been resorted to for the purpose of reviewing proceedings insti- tuted before a judge, to compel the delivery of books and papers by a pubhc officer to his successor. 26 Barb. 437 ; Id. 429, s. c. (?) 24 Id. 636; 5 Abb. 182, and 14 How. 348; 6 Abb. 228, s. c. 15 Mmo. 470. But the court or officer must act juditially to authorize the . proceedings to be reviewed on certiorari. Thus, where a justice of the peace acted ministerially ; as, under the act concerning the obstruction of highways and encroachments thereon ; it was held that a certiorari would not lie. 3 Wend. 468 ; 17 Id. 15. Nor wiU a certiorari lie to an inferior tribunal, except to re- move proceedings which remain before it. 30 New York, 72 • 1 mil, 195. OH. VI.] CERTIORARI TO REVIEW PROCEEDINGS. 155 The wnt of certiorari is also authorized to be issued by statute in certain cases ; as, to review proceedings under the act relating to forcible entries and detainers, 2 R'ev. Stat. 510, sec. 19, post. Chap. X.-; to review proceedings under the act regulating the writ of habeas corpus to inquire into the cause of detention, 2 Eev. Stat, biz, sec. 69, infra, Chapter xn. ; to review proceedings under the act for the summary removal of tenants, in certain cas'es, 2 Rev. Stat. 516, sec. 4:1, post, Chapter xxx. ; and to review proceedings under the act relating to insolvent debtors, 2 Bev. Stat. 49, sec. 47, post, Chapter xiv. 3. To municipal corporations.] The writ of certiorari, too, is the appropriate remedy to review the acts of officers of muni- cipal corporations. 2 Hill, 9 ; 11. 14; 21 Barh. 656 ; 4 Kern. 534. Thus, the court has reviewed on certiorari an assessment for opening a sewer in, one of the public streets of l!^ew York, 20 Johns. 430 ; and see 5 Barb. 43 ; and an assessment for regulating and paving a street in a village, 2 Wend. 395 ; and see 6 Id. 564; 23 Id. 27T ; and proceedings in reference to the imposition of a village tax, 7 Wend. 608, 665, note ; and proceedings con- firming an assessment for grading an avenue in the city of Brook- lyn, 9 Barb. 535 ; and proceedings of the common council of the city of Kochester upon a local assessment for the construction of a bridge across the Genesee river, 21 Id. 656 ; and an injunction is not proper in such cases, 15 Barb. 255; 15 How. 161 ; 16 Id. 228 ; 4 Kern. 534. But the certiorari will not be allowed for the purpose of re- viewing the proceedings of a corporation in appropriating lands for the opening or widening of streets, 2 Hill, 14; but see this case disapproved in 2 Butcher N. J. R. 49. ISTor will the court, in general, allow the writ where assessments of taxes, or awards of damages, are in question, which affect any considerable num- ber of persons. 2 Hill, 15. And if there is a want of jurisdic- tion, even in the judicial act sought to be reviewed, or, in other words, if there be an excess of legal power, by which any person's rights may be injuriously affected, an action lies ; and " it is much better that he should be put to this remedy, than that the whole proceeding should be arrested, and perhaps finally reversed, for such a cause." lb. \4t,per Cowen, J. ; am,d see 3 Alb. 232. Nor will the writ be allowed where it will operate a public inconve- 156 CERTIOBAEI TO EEVIEW PEOCEEDINGS. [CH. VI. nience, Id. ibid., 2 Mil, 15 ; 3 JDenio, 117 ; nor to review an assessment after great delay, where the work had been prosecuted and the tax partially collected. 25 Wend. 693; cmd see 17 Abh. 324, note. And so, in order to warrant interference with the proceedings of ta municipal corporation, by certiorari, the act complained of must have been plainly a judicial one. And therefore, it seems, the certiorari will in no case be sustained for the purpose of re- viewing official proceedings of a corporation, of either a legisla- tive, executive, or ministerial character. 2 Sill, 9 ; li. 14 ; and see 5 Barb. 43 ; 9 Id. 535 ; 3 Wend. 468; 17 Id. 15. 4. Other cases.] The writ of certiorari, also, has been awarded for the purpose of reviewing the decision of a jury of appraisers, ia the appraisal of the value of land taken for a rail- road, 5 Denio, 206 ; and to review the proceedings of courts martial, 15 Wend. 451 ; and the proceedings of the Metropolitan Board of Police in removing a policeman, 7 Ahh. 87; 26 Barb. 481, s. c. 6 Abb. 162 ; and the proceedings of canal appraisers who had appraised the damages of an individual without giving him an opportunity to be heard, or to produce testimony, 1 Wend. 288 ; and the proceedings of three justices of the peace appointing a town officer, 16 Johns. 49. And so, a certiorari may be allowed to review and correct on the merits, in certain cases, any decision or action of the commis- sioners of taxes and assessments for the city and county of New York, Laws of 1859, p. 684, sec. 20 ; but not after the assess- ment roll has been deliveredby the commissioners to the Board of Supervisors, and the tax has been collected. 43 Barb. 494. And so, a certiorari may be allowed to review an assessment made by town assessors. 3 Denio, 117, 119, per Beardsley, J., ' citing 15 Wend. 198; 1 Hill, 195 ; 2 Id. 9); Id. 14. But the writ will not be allowed to review the proceedings of the trustees of a school district, where a remedy is given by appeal to the superintendent of common schools, 5 How. 378 • 2 Wend. 287 ; 11 Id. 90, 94 ; nor to review the proceedings of commissioners of highways in the laying out of a highway; an appeal to the county judge being the proper remedy. 1 Hill, 674. Though in the cases stated, after the appellate tribunal has heard the appeal, a certiorari may be issued to review the proceedings CH. VI.] CERTIOEARI TO REVIEW PROCEEDINGS. 157 upon tlie appeal. 2 Wend. 287, per Marcy, J. ; 15 Johns. 538 ; 6 Sow. 176 ; 1 Selden, 568. Nor will a certiorari be aUowed to review the proceedings of the county board of canvassers, their duties being ministerial only. 4 Cowen, 297. Nor, for, the same reason, for the purpose of examining the right of a collector of taxes to proceed upon the process under which he is acting. 1 HiU, 195; and see 2 Id. 9, 14. Nor to review and correct the proceedings of a board of supervisors in assessing town and county taxes. Ih. 196, 200 ; 15 Wend. 198. Nor, to enable a party, by procuring a reversal of the proceedings of the com- missioners of taxes of the city of New York, to recover back, by action, money paid by him for taxes. 43 Barb. 494. II. How THE CeETIORAEI IS OBTAINED, AITO PeOOEEDINGS THEEEON Having stated the object of the writ of certiorari, and all, or nearly all, of the cases in this State where the writ has been allowed, as well as the cases where it has been refused, I shall now consider the practice in obtaining the writ, and the proceed- ings thereon. Who may have the writ.'] The party applying for, or prose- cuting, the writ must have an interest in the proceedings sought to be reviewed, or in the subject matter thereof And, there- fore, where a certiorari was issued to remove proceedings under the statute authorizing summary proceedings to obtain pos- session of lands in certain cases, and the party who applied for the writ had no interest in the real estate in question, on the return of the writ, the court, for that reason, quashed it. 12 Wend. 234. And so, a party who is not one of the debtor's creditors, and has no interest which has been, or can be, affected by his discharge under the insolvent laws, will not be permitted to sue out a certiorari for the purpose of having the discharge vacated. 24 Bari. 650, 654. But where the inferior court, or officer, is acting without jurisdiction, it is competent for any parties to join as relators in a certiorari. 26 Eow. 90. Where the writ was sought for the purpose of reviewing pro- ceedings authorizing the levying of a tax or assessment, affecting a considerable number of persons, and the application was made 158 CEETIOEAEI TO EEVIEW PEOOEEDINGS. [CH. VI. by only one of the persons assessed, the writ was refused. 3 Abb. 232 ; and see 2 Hill, 16. Either party to the proceeding complained of is entitled to the certiOTari. So held, where commissioners of highways ob- tained a certiorari to review thie determination of the judges of the Common Pleas of Columbia county, reversing the decision of the commissioners, in relation to the regulating and altering of a highway ; the court holding that the' right to bring a certio- rari was reciprocal, and belonged as well to the commissioners as to the appellants. 15 Johns. 53Y. When, and within what time, to be applied for.'] There are no statutory provisions regulating the time within which the writ must be obtained. In general, however, the writ will not be allowed to issue after the expiration of two years from the final determination of the proceeding sought to be reviewed.' 2 Hill, 10. And a case will rarely happen where it would be proper to allow a certiorari after the lapse of a longer period. Ih. 13, per Bronson J. ; 25 Wend. 693, 697. If the object of the writ is to review a proceeding before an inferior magistrate who has jurisdiction by statute, a judgment or final determination must be made in such proceeding, before the writ will be allowed. 20 Johns. 80 ; 26 £a/rb. 437, s. c. 5 Abb. 194; 20 Bow. 167, s. c. 11 Abb. 398. Affidavit to be made. ] The application for the writ is foimd- ed upon affidavit, which should set forth facts showing a proba- bility that wrong has been done, that the error is of a nature which can be corrected on certiorari, and that the writ will not operate oppressively, or be productive of great inconvenience or injustice. 6 Barb. 44; 21 Jd. 656; 2i Jd. 641; s. o. 6 Abb. 189. And where the writ was allowed without any cause being shown, upon affidavit, or otherwise, except by suggestion of counsel, the court, for that reason, on motion, quashed it. 7 Cowen, 158 ; and see Id. 537 ; 6 Id. 396 ; 5 Wend. 98 ; 15 Id. 19S. Fiir form of affidavit, see Appendix, JVo. 92. Sbw^ and where, applied for.] The necessary affidavit hav- OH. VI.] CEETIORARI TO REVIEW PEOCEEDrN'GS. ' 159 ing been prepared, the next step will be to apply for an order allowing the certiorari to issue. The application, if the common-law writ is desired, must be made to the Supreine Court / and it cannot be made to a justice of that court, or other officer, at Chambers. 10 How. 181 ; 6 Wend. 565 ; 7 Id. 508 ; 9 Id. 433. And it should be made to the special term of the court. Sup. Court Bules, No. 40 ; and see 12 Barl. 219. Where, however, the certiorari is authorized by statute, the allowance may also be made by any judge of the Court of Appeals, justice of the Supreme Court, county judge or local officer elected to perform the duties of county judge and sur- . rogate. Laws of 1847, _p. 324, seo. 17; 10 How. 181 ; 35 Barb. 444. Notice of the application need not ia general be given. 10 How. 181; 1 Barb. S. C. B. 196, 197, 198, 201; 17 AU. 112. Though it is otherwise where the writ is sought for the purpose of reviewing assessments made by municipal corporations. In such cases, notice must be given to the attorney of the corpora- tion ; and the court will make no order for the allowance of the writ, without a full opportunity to the respondents to show cause against it. 21 Barb. 656 ; 12 Wend. 392 ; 23 Id. 284. Several writs may issue in one case, where it is necessary, in order to bring up the entire record. 17 Abb. 112. Application for the writ.l The certiorari, not beiug a writ of right, but issuing in all cases in the discretion of the court, it should always be, and generally is, allowed for good cause, and granted with great care and circumspection. 5 Barb. 44; 21 Id. 656. And on the application for the vn-it, opposing affidavits may be read, and will be considered by the court in determining whether the writ ought to be allowed, or not. 1 Hill, 197 ; 2 Id. 398 ; 5 How. 378. The court may, in its discretion, either aUow the writ to issue in the first instance, or grant an order to show cause. 1 Barb. S. G. 5. ,187, 197, 201. And the court may also, it seems, order a reference where there is doubt as to the regularity of the proceedings sought to bp reviewed. So held on an application for a certiorari to re- move into the Supreme Court the proceedings of the Metropoli- 160 CERTIORAEI TO BEVIEW PEOCEEDINGS. [CH. VI. tan Board of Police, in relation to the trial and dismissal of members of the police force. 6 Abb. 151, 159. The writ ; its form, cfec.J The certiorari is a judicial writ, and issues at the suit and in the name of the people ; and cannot be prosecuted in the name of an individual. 16 Johns. 49, 50 ; 24 Wend. 249, 253. It should recite the name of the parties aggrieved, and set forth the cause of complaint, with the proceed- ings, and the people's desire to be certified (certiorari) of them ; and commanding the judge or oflBcer to certify, and return the record and proceedings to the Supreme Court, on a specified day [the return day], so that the court may cause to be done in the case what of right ought to be done, &c. 23 Id. 27Y ; 2 How. 187, 188 (195) ; 2 Burr. Pr. 195. The writ should be directed to the parties whose proceedings are sought to be reviewed. Thus, " The People of the State of l!Tew Y ork, to A. B., C. D., &c.. Board of Police for the Metro- politan Police District." 6 Abb. 151, 161. And where the acts of corporation officers are the proper subjects of review, the cer- tiorari should be directed to them, and not to the corporation. 2 Hill, 14. If the proceeding is had before a judge as an officer, and not as a court, the writ is properly directed to him. 35 Barb. 444. K the object of the certiorari is the review of a record, and the person who ought to certify it, as, a justice of the peace who has taken a recognizance, or a judge of nisi prius, who has taken a verdict, or a coroner who has taken an inquest, die with the record in his custody, the certiorari may be directed to his execu- tor. Bac. Ab. title Certiorari, F. And the writ, also, may prop- erly issue to one formerly in office, notwithstanding his term of office expired before the time of making application for the writ. 6 Abb. 228 ; and see 6 How. 175 ; but see contra, 4 Id. 425. The writ should be made returnable at the general term, Swp. Court Rules, If as. 40, 47; 35 Barb. 444; 16 Abb. 337; and at the general term of the district in which the proceedings sought to be reviewed were had. 35 Barb. 444. It should be tested, signed, and sealed in the iisual manner. 2 Burr. Pr. 195. An indorsement, also, should be made upon the writ,, signed by the clerk, showing that the writ had issued by order of the court. See 19 Wend. 640-, per Bronson, J. For forms of writ, see Ajypendix, .Nos. 94, 95 , CH. VI.] CERTIORAEI TO REVIEW .PROCEEDINGS. 161 Effect of the writ', staying proceedings^ After the service of tlie certiorari, all subsequent proceedings on the record are erro- neous, the proceedings of the court, or officer, or party to whom it is addressed, being stayed by virtue of the writ. £ac. Air. Certiorari, " {?.," 13 Wend. 664. And therefore, a common law certiorari, to review proceedings instituted by a party to get possession of books and papers appertaining to an office, stays the warrant, if served before the warrant is issued. 26 Barh. 429 ; s. c. 24 Id. 636 ; 5 Aib. 182. The certiorari, in such case, will not stay the proceedings in the midst of a trial ; but at the end of it its operation is to suspend them at once. And an order of the court allowing the writ, directing that it shall not be deemed to operate as a stay, does not alter or modify the operation of it in that respect ; especially if made after the writ is allowed and served. And it is doubtful, indeed, whether a conditional or I partial allowance, that the writ shall not stay proceedings, can be made in any case. Id. ibid.,' and see 13 Wend. 665 to 616. But the writ will not operate to supersede or stay an execu- tion issued by an inferior court where the writ is served after levy made ; so held where a levy had been made by a constable in virtue of an execution issued on a judgment of the municipal court of Brooklyn ; and a certiorari was afterwards sued out and served, removing the judgment into the Supreme Court. 3 jSill, 239 ; and see 5 Sand. S. C. E. 254 ; JBac. Ah. title Certiorari, G. In respect to the effect of the certiorari in staying proceed- ings before a magistrate under the statute relating to the removal of tenants in certain cases, see post, chapter xxx. Supersedeas of the writ.] If the writ of certiorari has improp- erly issued, a motion may be made to supersede it. Thus, the court will direct a supersedeas of the writ to be entered, if it is made to appear that the writ was granted before the proceedings removed by it were completely terminated. 5 Abb. 194; s. c. 26 Bari.iSi; amdsee 20 Sow. 167, s. c. 11 Abb. 398 ; or, if it appears that the writ was improperly issued, 5 How. 378; or was misdirected, or otherwise bad in point of law. 1 Tidd, 335 ; 16 How. 381. The motion to supersede the writ may be made either before or after the writ is returnable; and in the latter case, even though the writ has not in fact been returned. 5 How. 378; 12 Wend. 241. 162 CEETIOKAEI TO REVIEW PROCEEDINGS. [CH. VI. The writ may he quashed.'] After the writ is returned, if it is misdirected, or is otherwise bad in point of law, or was irregu- larly or improperly allowed, the court will order it to be quashed Thus, the writ was quashed where it was issued before inquisi- tion found in proceedings on a complaint for a forcible entry or detainer, 4 Wend. 213; and in other cases where it was prema- turely issued, 20 Johns. 80 ; and see 26 Barb. 437, s. o. 5 Abb. 194, 20 How. 167, s. c. 11 Abb. 398 ; and so, also, where it was allowed by an officer having no jurisdiction to all'ow it, 7 Wend. 665 ; 9 Id. 433 ; and where it was issued on the application of a party having no interest in the subject matter of the proceed- ings, 12 Id. 234 ; 24 Barb. 650 ; and so where, for any reason, the writ has been improperly allowed. 15 Wend. 198 ; 2 Mill, 9; Id.U; IMoio. 141. And if the writ has been awarded in an improper case, the court will quash it, even after a return and hearing on the merits. 2 mil, 9 ; 19 JVew York. 531 ; 21 Barb. 656. But the writ must be returned, or at least returnable, before a motion to quash would be proper. 12 Wend. 241 ; 5 JIow. 378. Thongh where a party asked to quash a writ not yet returnable, and his notice was of a motion to quash the writ or for such other order as the court should think proper to make ; it was held that the defendant in the writ was entitled to an order to svr- persede the same ; and such an order was accordingly granted. Id. ibid. Betnirn to writ?^ The court or officer is required to obey the writ of certiorari, by returning and certifying the record of the proceedings of the inferior tribunal, or the entries made by it in the nature of a record. But no more of the testimony or facts of the case should be returned than are necessary to determine upon the point of jurisdiction, or other question of law arising in the course of the .proceedings. 15 Wend. 451 ; 1 Seld. 568 ; 16 Abb. 337 ; 43 Barb. 239. The writ cannot bring up for re- view the evidence, and the decisions and rulings of the inferior tribunal thereon ; but only the record. Id. ibid. ; 2 Rill, 9. But the question of jurisdiction is open to review, and so are the facts bearing upon that question. And therefore, the evi- dence touching those facts must be returned upon certiorari • tc the end that the court may examine the same, and determiue CH. VI.] CERTIORAEI TO EEVIEW PROCEEDINGS. 163 whether the inferior tribunal rightfully assumed jurisdijtion, and whether it came to a right conclusion upon the facts, which gave it the power to act. 32 Barh. 132. Where there is technically no record, the written proceedings and orders, or a history of tlie proceedings and the written orders which are in the nature of records, are to be certified. 25 ^Yend. 168, per Paige, J. And enough of the proceedings should be returned to show that the inferior court or officer had jurisdiction, not only of the subject matter of the inquiry, and of the person proceeded against, but also that some proof was made which had at least a tendency to establish the material allegations in issue. 15 Barh. 287; 6 Wend. 564. In cases, how- ever, where the writ is issued to review proceedings under the statute authorizing the removal of tenants in certain cases {post, chap. XXX.), the return should contain the evidence in fall, and the decisions of the court or officer upon the trial, and every other fact necessary to enable the court to examine and decide the question upon its merits. 23 Wend. 616 ; 25 Id. 280 ; 1 Seld, 883; 2 Id. 309 ; 3 Barb. 8. G. E. 391. Wbere the certiorari was issued to remove proceedings under the act respecting disorderly persons (1 Rev. Stat. 638) ; it was held that the magistrate should, in his return, set out, in heo verba, aU the proceedings before him. 4 Barb. 164. If the return contains matter inserted by way of explana- tion or otherwise, besides what is ordered to be returned, such matter is irrelevant, and is not to be regarded. 25 Wend. 168 ; Bac. Abr. title Certiorari, " S." And so, of matter returned without being required, and not asserted as a fact, but merely upon information and belief 2 Caines, 179. The return must be made by the court or officer to whom it is directed. And where it is directed to a board of commission- ers, or. other officers, e. g., the Board of Police of the Metropoli tan Police District, the return must be made by a majority of the persons composing such board. 6 Abb. 161, per Davies, J. The officer to whom the certiorari is directed is not incapaci- tated from making a return by reason of the expiration of his term of office. And this, too, notwithstanding the writ is not served upon the officer until after such expiration. 6 Abb. 228 : 6 ITow. 175 ; contra, 4 Id. 425. The return is conclusive as to the facts alleged in it ; and 164 CERTIOEARI TO EEVIEW PBOCEKBINGS. [CH. VI. must he acted upon as true. If false, tlie remedy of the party aggrieved is by action. 20 Wend. 625, per Cowen, J., citing 17 Johns. 131 ; 6 Mod. 90. Proceedings on the retwrn.\ The certiorari may be brought to a hearing by either party, upon the usual notice of argument ; and is entitled to preference on the morning of any day during the first week of the term. Swp. Court Rules, No. 4T. And where the certiorari is brought to review proceedings of the com- missioners of assessments in the city of New York, it is directed to be heard and decided forthwith by the court in preference to all other actions or proceedings. Laws of 1859 p. 684 § 20. On the return of the writ the court will only look at the facts returned. And it wiU not assume that there was other evidence before the inferior tribunal to sustain its acts. ZSelden, 428. And in respect to facts returned, the court will examine the return no further than to ascertain if the inferior tribunal has kept within the limits of its jurisdiction 2 Hill, 9 ; and to see that some evidence, at least, was given to justify the decision sought to be reviewed. 15 Barh. 287 ; 6 Wend. 564; and see 6 How. 25 ; 7 Id. 154 ; 16 Id. 43 ; 6 All. 285 ; 7 H(m. 166 ; 1 All. 17, noU ; 24 New Yorh, 399, s. c. 23 How. 289 ; 30 New York, 399; 15 All. 167. "Where, however, the certiorari is issued to review proceedings for the removal of tenants for non- payment of rent and in other cases, the authority of the court is not limited to questions of jurisdiction and regularity ; but the court will examine upon the merits every decision of the judge a quo upon a question of law, and look into the evidence, and affirm, reverse or quash the proceedings, as justice shall require. 23 Wend. 616 ; 25 Id. 280 ; 1 Selden, 383 ; 2 Id. 309 ; 3 Barl. 8. C. B. 391 ; and see post, chap. xxx. If, upon the return of the certiorari, it appears there was a want of jurisdiction, or that the proceedings were irregular, or that the certiorari was improperly or irregularly issued, the writ will be quashed on motion. See supra. But the return cannot be contradicted by an assignment of errors ; and an assignment of a fact, even, showing a want of jurisdiction, does not constitute an exception to the rule. 20 Wend. 625 ; 1 Cowen, 28, note. CH. VI.] CEETIOEAEI TO REVIEW PEOCEEDINGS. 165 Proceedings to compel a return.^ If the court, or inferior tri- bunal, or officer refuse or neglect to make return to tlie certio- rari, tlie court will compel them to do so by rule. 2 Cowen, 575 And if the certiorari is directed to a corporation, and they neg- lect to appear and make return thereto, the court will issue a distringas to compel them to do so. 5 Row. 314. And a writ of sequestration, in such case, will not be issued until the dis- tringas has failed to accomplish that object. Ih. AmendTnents.'] If the certiorari is defective in any respect, leave may be had from the court to correct it by amendment. Thus, a certiorari was allowed to be amended by correcting the statement of the form of the action below from "trespass" to " debt," Col. and G. Gas., 302 ; and by correcting a mistake in the name of a party to the judgment sought to be reviewed, 1 Gowen, 582 ; and by inserting a test day in a certiorari, which had been omitted by mistake, Ih. 41 ; and by affixing to the writ the seal of the court out of which it issued, where the seal of another court had been improperly affixed to it, 5 Wend., 103; and by changing the return day of the writ, where, by the certiorari, as issued, a term intervened between the teste and return, 1 Gowen, 38 ; 2 Wend. 259 ; and by indorsing upon the writ an allowance by the court, or otherwise, showing it had been allowed by the court. 19 Id. 640, per Bronson, J. And so, the writ has been allowed to be amended by changing the title of the officers to whom it was addressed. 6 Abb. 152, 161. If the relator dies pending the proceedings, his personal re presentative, or other party having the legal title to the subject matter of the proceeding, may be substituted as relator. 29 Barb. .77. Judgment.'] Judgment is entered according to the decision of the court, and is perfected, as in ordinary cases. See 2 jBurr. Pr. 197. ' Cbsfo.] At the common law, costs were not allowed upon cer- tiorari. 6 H(m. 25, 28 ; lb. 178, 182 ; 7 Id. 157 ; 16 Id. 43, 46. But this rule, it seems, has been changed or modified by statute. Thus, by § 318 of the Code of Procedure, it is provided that, 166 CERTIOEAEI TO BEVIEW PBOCEEDINGS. [CH. VI, " when the decision of a court of inferior jurisdiction in a special proceeding, including appeals from surrogates' courts, shall be brought before the Supreme Court for review, such proceedings shall, for air purposes of costs, be deemed an action at issue, on a question of law, from the time the same shall be brought into the Supreme Court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case." The writ of certiorari, it has been held, is a special proceeding within the above section. 7 Row. 15Y, swpra; 14 Id. 527; and see 19 N. York R. 532. And accordingly costs were allowed imder that section upon a certiorari to review the decision of a court of sessions, directing a party to support an indigent relative, 7 How. 157, supra ; and also upon a certiorari removing into the Supreme Court the decision of referees appointed to hear and determine an appeal from an order made by commissioners of highways. 14 How. 527, 530 ; and see 27 Id. 158. In the case supra (14 How. 527, 530) the court directed that the costs of the , relator, as of an action at issue, on an issue of law, be awarded against and collected of the town represented by the defendants ; and that the amount be collected by a tax, as part of the town charges, in the next levy of taxes. But see contra, 20 How. 304 ; 13 AhK 405. So, it has been held, that, under the laws of 1840 {p. 327), and 1844 {p. 402), costs may be allowed on certiorari. 26 How. 450, s. c. 17 Abb. 324, note. The costs upon appeal to the Court oi Appeals are regulated by the Code of Procedure ; and are the same, substantially, as on appeals from judgments in civil actions. Code, §§ 8, 11, 333 ; 9 How. 304, s. c. 3 Duer, 616 ; 2 Sand. S. C. R. 740 ; and see amte, p. 14, note b. Appeals.'] From the decision of the Supreme Court, upon the certiorari, an appeal may be taken, by the party aggrieved, to the Court of Appeals. Code, § 11; 19 New York, 531, 532. B.ut the allowance or refusal of the writ by the Supreme Court, being matter of discretion, its decision quashing the writ will not be reviewed in the Court of Appeals, notwithstanding that the Supreme Court declared an opinion that the proceedings brought before it were regular. lb. CH. VI.] CERTIORAEI TO EEVIEW PEOCEEDINGS. 167 The proceedings upon the appeal are regulated by the Code of Procedure, and are the same, substantially, as on appeals from judgments in civil actions. Code of Pro. §§ 8, 11, 333, 343, as amended 1866, ch. 824 ; 9 How. 304, per Duer, J. ; s. c. 3 Duer 616 ; 2 Sand. S. C. R. 740; and see ante, p. 14, noU h. The remedy to review the proceedings upon the merits was formerly had by writ of error ; and, if necessary, the aggrieved party might move the court for leave to make up and file a jugd- ment record for that purpose. But in a case where the writ had been quashed for error appearing upon the face of it, and not upon the merits, and no return had been made to the writ, the motion was not allowed. 1 How. 90. SUPPLEMENT TO CHAPTER YI. The new Code of Oi-oil Procedure. Formerly, except in special cases, the only remedy to obtain a review of the order of a judge made in a special proceeding, instituted out of court, was by certiorari ; but under the Code of Civil Procedure, just enacted {ante, p. 20), an appeal, in such case, is allowed ; the effect of which will be, substantially, to supersede the review of such orders, by certiorari. See Bev. Notes, Laws 1876, vol. 2, p. 32'^. The statutory writ, brings up for review any question of law arising either in the proceedings or upon the trial ; also any question of law arising upon the rulings of the court in respect to the admissibihty of evidence, or as to the chal- lenge of jurors, or the charge to the jury. 39 JT. Y. 107 ; 40 Id. 105. The judgment of the general term of the Supreme Court, is reviewable in the Court of Appeals. 39 Id. , 81. On a common law certio^'ari, the court may go beyond the question whether the inferior tribunal has jurisdiction of the person and subject matter, and whether its proceedings and judgment were within that jurisdiction ; and may examine the case upon the whole evidence, to ascertain whether any error had been committed in the proceedings before such inferior tribunal. 39 N. 7. , 50G ; lb., 81 ; 40 Id., 154 ; 6 Hun., 229; 59 Barb., 401; 57 Id., 177 ; 54 Id., 145 ; but see Id. 589. The writ is proper where a board rejects, as not just or legal, a claim which the legislature has declared by statute to be just and legal, and has directed the board to audit and allow. In such case, although the court cannot by certiorari compel a performance of this duty, it can reverse the erroneous decision. 51 ^. T., 443; and see 49 Id., 655. But the common law- writ is proper only to review the proceedings of inferior courts or tribunals, in cases where there is no other available remedy ; and where otherwise injustice will be done ; in all other cases, it will be confined to its original and appropriate office, namely, the bringing up of the record of the inferior court or tribunal to enable the court of review to determine whether the former has proceeded within its j'lrisdiction. 55 if. 7., 600 ; and see ante,' p. 153. It does not issue to inferior tribunals, exercising judicial functions, until the proceedings are completed, and a final determination is had upon such proceedings. 3 Hun, 549. The writ is allowed, and the remedy sought by it granted, in the discretion of the court. 168 CEETIOEABI TO EEVTEW PEOCEEDINGS. [CH. TL 65 Bwri., 9; lb., 435 ; 2 Hun, 584 ; and the fact that the relator has no other remedy does not deprive the oourt of this discretionary power. 53 N. T., 547. Who may have the vmt. To entitle a party to the common law writ, he must have an interest in the proceedings intended to be brought up by it. 65 Barb., 478. Thus, a tax-payer is entitled to a certiorari to review an assessment or tax, and to have the same set aside, if illegal. lb., and see 57 Id., S77. So, a petitioner for bonding a town for railroad purposes, may bring a certiorari to review the proceedings where they have been iUegally conducted. 7 Lansing, 467. And the town, in such case, may also bring the certiorari. lb. ; but see 65 Barb., 473. But it seems, a mere inhabitant, -tax-payer, or officer of the town, whose lands are not interfered with, is not entitled to a certiorari to review the action of highway commissioners of the town in laying out a highway. 5 Lans- ing, 353. Nor should the writ be granted upon the application of two or three out of a laxge number of persons, interested in like manner in assessments for local improvements, especially where adequate relief may be afforded in an action. 4 Hun, 187. Within what time the writ to be a/pplied for. In the absence of special cir- cumstances, two years has been the usual time of limitation within which the writ should be applied for. 2 Hun, 386. Unreasonable delay in applying for the writ, is a good ground for refusing it. 53 J^ K , 547. Thus, the writ was not allowed, where it was sought to review the proceedings upon an assessment, and it appeared that the roU had been delivered to the board of supervisors, and the power of the assessors over it had ceased. 49 Id., 655 ; and see 65 Barb., 9 ; lb. , 435. In respect, however, to inferior courts, tribunals, or officers, exercis- ing judicial functions, the writ does not issue tUl the proceedings before them are completed, and a final decision rendered. 3 Hun, 549. Where a/pplied for. The application for the writ must be made to the special or general term in open court; and cannot be made to a justice at chambers 2 Hun, 70. The writ, to whom directed. The writ is properly directed to the officers or body having the legal custody of the record of the proceedings sought to be reviewed, 49 Barb., 136 ; and should be directed to all persons and bodies whose return is necessary to enable the court to determine the regularity or validity of the proceedings. 65 Id., 170. It may issue to one whose term of office has ex- pired, and to the representative of one who has died, who is in possession of the record made by the deceased officer, lb., 171. Errors in the direction or return must be corrected by motion ; and will be waived by submitting to a hearing on the merits. 49 5a?-*., 136. Quashing the writ. Allowing a motion to be made for an amended return, is not a waiver of the right afterwards to move to quash the writ. 2 Hun, 70. It is no reason for qtiashing the writ, that the persons to whom it is directed, are out of office. 65 Barb., 171. The return to the writ. Upon a common law certiorari, the return will be held conclusive, as to the facts alleged in it ; and, therefore, the court cannot con- sider affidavits impeaching it, nor refer it to a referee to ascertain the truth of the matters stated in it. 6 Hun, 635 ; Id., 652. If the return is not sufficiently fuU in respect to matters sought to be reviewed, the relator should apply for a further and more specific return. 65 Barb., 474. The court will compel a return of the action of a ministerial officer, where the only relief to a party is a certiorari, and relief cannot be granted without such return. 65 Barb., 171. Proceedings upon the return. If, after a return is made to the writ, the court is satisfied, upon a hearing, that the \vrit improvidently issued, or that justice and equity, or a regard to considerations of public policy, or public in- convenience, require such a decision in respect to it, it will dismiss the writ without passing upon the merits, or upon the particular question raised, or designed to be raised, by it, for review. 65 Barb., 9. On a common lam certiorari, costs will not be awarded. 39 N. T., 107. The certiorari to be plated on preferred calendar. By rule 53 (as' amended 1871), every case on certiorari to subordinate courts, tribunals or magistrates' may be brought to ahearmg by eithe;: party, upon the usual notice of argnmentl and will be placed upon the preferred calendar on filing a proper note of issue. CHAPTEE VII. PEOOEEDINGS AS FOE CONTEMPTS, TO ENFOECE CIYIL EEMEDIES. The contempts provided for, by tlie statutory provisions here considered (2 Rev. Stat. 634:) are those which have been treated as such, merely for the purpose of enforcing some civil remedy. Bev. Wotes, 3 Bev. Stat. 2d ed. 772, and Id. 695. The " contempts," strictly so called, punishable by courts of record, are enumerated in title 2, of cha^p. 3, ofpan-t 3, of the Ee- vised Statutes 2 Bev. Stat. 278 ; {a) and the like contempts, punishable by justices of the peace, are enumerated in title i, of chap. 2, of part 3, of the same statutes. 2 Bev. Stat. 273. In respect to the contempts last mentioned (the consideration of which is not included in this work), reference must be had to the provisions of the Eevised Statutes, above mentioned. I. In what Cases a Partt is in Contempt. 1. Statutory Provisions.'] The statute undertakes to declare the cases in which the remedy by proceedings for contempt may be adopted. It does not, however, assume to include them all, it being expressly provided by sub-division eight {post), that that remedy may be pursued in all cases where attachments and pro- ceedings, as for contempts, have been usually adopted and prac- ticed in courts of record, to enforce the civil remedies of any party to a suit in such court, or to protect the rights of any such party The statute provides that every court of record shall have (o) Applicable, also, to the Marine Court of the city of New York. Lcms of 1852, p. 648, sec. 1. And by § 2Y2 of the Code of Procedure, the same power is given to referees on the trial of causes before them, to preserve order, and punish all viola- tions thereof; upon such trials, as is possessed by the court. Vol. I.— 14 170 CONTEMPTS. [CH. VII. power to punish, by fine and imprisonment, or either, any neglect or violation of duty, or any misconduct by which the rights or remedies of a party in a cause or matter depending in such court may be defeated, impaired, impeded, or prejudiced, in the fol- lowing cases : 1. All attorneys, counselors, solicitors, clerks, registers, sher- iffs, coroners, and all other persons in any manner duly selected or appointed to perform any judicial or ministerial services, for any misbehavior in such oflice or trust, or for any wiUful neglect or violation of duty therein ; for disobedience of any process of such court, or of any lawful order thereof, or of any lawful order of a judge of such court, or of any officer authorized to perform the duties of such judge ; 2. Parties to suits, for putting in fictitious bail as sureties, or for any deceit, or abuse of the process or proceedings of the court ; 3. Parties to suits, attorneys, counselors, solicitors, and all other persons, for the non-payment of any sum of money ordered by such court to be paid, in cases where by law execution cannot be awarded for the collection of such sum (2 Paige, 578 ; 1 Dvsr, 696) ; and for any other disobedience to any lawful order, decree, or process of such court ; 4. All persons for assuming to be officers, attorneys, solicit- ors, or counselors of any court, and acting as such, without au- thority, for rescuing any property (2 Wend. 262), or persons which shall be in the custody of any officer, by virtue of pro- cess issued from such court ; for unlawfully detaining any wit- ness or party to a suit, while going to, remaining at, or returning from, the court where such suit shall be noticed for trial ; and for any other unlawful interference with the process or proceedings in any action ; 5. All persons summoned as witnesses, for refnsmg oi neg- lecting to obey such summons, or to attend or be sworn, or answer, as such witness ; {a) (a) See the statutory provisioua on the subject of compelling the attendance of witnesses, in 2 Rev. Stat. 400 ; lb. 540, sees. 34, 35, 36. By the Code of Procedure, also {sec. 272, as a/mended hy act o/lSST), referees upon the trial of causes have "the same power to preserve order, and punish all violations thereof upon such trial, and to compel the attendance of witnesses before them by attachment, and to punish them as for contempt for non-attendance, or refusal to be sworn or testify, as is possessed by the court." The court also may punish for such contempt before a referee. 6 Abb. 21t, note. CH. VII.] ' CONTEMPTS. 171 6. Persons summoned as jurors in any court, for improperly conversing with any party to a suit to be tried at such court, or with any other person, in relation to the merits of such suit, for receiving communications from any such party, or from any other person, in relation to the merits of any such suit, without imme- diately disclosing the same to the court ; 7. All inferior magistrates, officers, and tribunals, for disobe- dience of any lawful order or process of a superior court, or for proceeding in any cause or matter contrary to law, after such cause or matter has been removed from their jurisdiction ; and, 8. All other cases where attachments and proceedings, as for contempts, have been usually adopted and practiced in courts of record, to enforce the civil remedies of any party to a suit in such court, or to protect the rights of any such party. 2 Eev. Stat. 634, sec. 1. {a) The authority conferred by the above statutory provisions is given for the protection of the rights of parties litigating in court, as well as to enable the court to protect itself, and to preserve its own dignity. To authorize a person to be proceeded against under the statute, it must appear that his misconduct has tended to defeat, impair, &c., the rights or remedies of a party in a cause then depending in the court. 1 Duer, 512. And when such misconduct is shown, the authority of the court is not limited to the imposition of a fine sufficient to indem- nify the party aggrieved, or to an imprisonment of the accused, for the sole purpose of enforcing the payment of the fine ; but it extends to the punishment of the accused, when the misconduct is, in its nature, a " criminal contempt." Ih. 2. Contempts in not paying money ordered to he paid.~\ The statute, as we have seen, authorizes a party to be proceeded against for a contempt, for the non-payment of any sum of money, (a) "In this section," say the Eevisers, " an enumeration of the general cases has been made, as well to define as to limit a power, which, while it is absolutely necessary in many cases, is yet perhaps more liable to abuse, and in England has been abused more than any other possessed by the courts. The preceding section includes all oases which a diligent examination of all the writers on the subject has discovered, and which, it is supposed, ought to be included. The cases will be foimd in 4 OhiUy's Blachstone, 221; American edition of Gomyris Dig. 1, 719, Attach- ment, 2 Sawk. 142." 172 CONTKMPTS. L^H. VH. ordered by tlie court to be paid, in cases where, by law, execution cannot be awarded for its collection. 2 Rev. Stat. 534, sec. 1, suh. 3, supra; 2 Paige, 578 ; 1 Bv^r, 696, 698. And it furtber provides, that when any nile or order of a . court shall have been made for the payment of costs, or any other sum of money, and proof, by affidavit, shall be made of the person- al demand of such sum of money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison, until such sum, and the costs and expenses of the proceed- ing, are paid. 2 Rev Stat. 535, sec. 4 ; am.d see 1 Hill, 168. In respect, however, to the power of the court to commit for the non-payment of costs, it is now provided by the act of 1847, that no person shall be imprisoned for the non-payment of inter- locutory costs, or for contempt of court in not paying costs, except attorneys, solicitors, and counselors, and officers of court, when ordered to pay costs for misconduct as such, and witnesses when ordered to pay costs on attachment for non-attendance. Zaw o/ 1847, i?. 491. But the act of 1847 does not apply to those cases of contempt for which a fine may be imposed upon a party for any miscon- duct which may be productive of an actual loss or injury to the other party. And, therefore, where the defendant was ordered to appear before a referee, and make an assignment to a receiver, and to pay the costs growing out of a previous default, and failed to do so, a fine was imposed upon him, and an attachment awarded, 2 Barb. S. C. R. 396. And so, that act does not apply to costs allowed in certain cases under the Code of Procedure. Thus, when costs are adjudged against an infant plaintiff", in an action, the guardian by whom he appeared is responsible for them, and payinent thereof may be enforced by attachment. Code, § 316. And so, in actions in which the cause of action, shajl, by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person is liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attachment. Ih §321. In respect to the remedy for the collection of costs for the non-payment of which a party cannot now be imprisoned, the act of 1847 further provides, that process, in the nature of & fieri CH- Vn.] CONTEMPTS. 173 facias, against personal property may be issued for the collection of sncli costs founded on the order of court. Laws of 1847, j-^. 491, sec. 3, supra. But an execution cannot be awarded to collect costs allowed by a judge in an order made in supplementary proceedings. Such an order is not an order of the court. 11 How. 446. The remedy for the collection of costs made by a judge out of court, it seems, is by precept to commit the party as for a contempt. lb. 450, 451 ; 13 Abb. 459, s. c. 22 Bow. 309 ; 13 Abb. 304, note. A demand of the costs ordered on a motion is not necessary before issuing an execution for their collection. Laws of 1 840, p. 333, see. 15 ; 1 Code E., IST. S. 301, s. a. 6 How. 121. Nor, if' the costs are not paid within the time required, is an application to the court for leave to issue an execution for their collection necessary. lb. 265, 311, note; 3 Abb. 468 ; s. c. 13 Row. 191. In cases, however, where a party may be committed for tbe non- payment of costs, or other sum of money, before the precept to commit the party can be issued, a personal demand of the pay- ment of such sum is necessary ; and it is not enough that such demand is made of the solicitor of the party. 9 Paige, 609 ; 2 Rev. Stat. 535, sec. 4, supra ; 24 How. 432. The order or precept to commit for the non-payment of money, issues directly. For forms, see Appendix, ISTos. 103, 104. The process to appear and answer is for contempts other than those for the non-payment of a sum of money. 9 LIow. 97 ; 3 Paige, 43 ; 2 Rev. Stat. 535, sees. 3, 4, 5. The order for the payment of money should specify the time within which the money is to be paid. 2 Barb. Ch. Pr. 272. If the person demanding the money under the order of the court, is not the party to whom the order directs the money to be paid, such person should be authorized to receive the money. Ih.; 19 Ves. 117. And where, in proceedings supplementary to execution, an order was made directing the defendant to pay a sum of money in satisfaction of the judgment, it was held that the defendant was not in contempt for not paying the money to the receiver, on demand of the latter, for the reason that the order was not to pay the money into court, or to the receiver, but in effect to pay to the plaintiff directly, in satisfaction of the judgment. 9 How. 97. And so, where an order directs prop- erty to be delivered to a receiver, the latter must demand it per- 174 CONTEMPTS. [CH. VIL sonally to entitle Tn'm to an attaclunent for not delivering it ; and it is not sufficient, in sueli case, that a demand of the property has been made by the plaintiff or his attorney, or even by the referee appointed to see that the delivery is made. 19 Id. 394. it is not necessary that the sum, for the non-payment of which a commitment is ordered, should be named in the order. It may be ascertained by a reference for that purpose ; and the referee's report, when perfected, though made after the order, is to be regarded as a part of it. 1 Hill, 154. And see this case for forms of orders of reference and referee's report. Where the defendant, in an action upon an ordinary civil contract, admits part of the plaintiff's claim to be due, the court will not, under the last clause of § 244, of the Code of Procedure, enforce the payment of it by proceeding against the defendant as for a contempt. 11 Hoiu. 360, s. c. 2 Abb. 129. Otherwise, however, where the money is admitted to be due in a fiduciarv capacity, so that, under § 179, the defendant might be arrested at any time in the action. 1 Id. 448. And the practice in this respect is the same as before the Code ; and an interlocutory order for the payment of money admitted to be due in an answer, and which will be enforced by attachment, wUl, in general, be granted only to enforce payment of moneys received or withheld in violation of a trust, and not of an ordinary debt. Ih. But see contra, in the New York Common Pleas, where it had been decided, substantially, that a party may, in all cases, be com- pelled, by attachment, to pay a sum of money admitted by his pleading to be due. 1 All. 220; Id. 399, s. o. 3 E. B. Smith, 607 ; and see Id. 599, 614. Though since the decision of the cases cited, the last clause of § 244 of the Code has been amended, and now provides, that when the answer of the defendant, expressly or by not denying, admits part of the plain- tiff's claim to be just, the court, on motion, may order such defendant to satisfy that part of the claim, and may enforce the order, as it enforces a judgment or provisional remedy. Laws of 1857, chap. 723. Under the section, as amended, the court may make an order in the nature of a judgment, and enforce it by execution, or, in a proper case, may enforce obedience to the order by attachment , though the latter remedy is only appropriate where the defend- ant, upon a iinal judgment in the same action, would be liable to CH. VII.] CONTEMPTS. 175 imprisomnent. 16 Eow. 193 ; and see 26 Ba/rl. 199 ; Z E. D. Smith, 600, s. c. 1 Abb. 223 ; 10 How. 428. If moneys are collected hj an attorney for his client, which he refuses to pay over, the court will enforce the payment of the money by a commitment for a contempt. 5 Paige, 311. And so, also, if the moneys were received by the attorney in his pro- fessional capacity, although they were not received, or the attor- ney was not employed, in any legal proceeding. 8 Abh. 357. But an attachment, in such case, will not be issued after the remedy by action is barred by the statute of limitations. 36 Barb. 662^ A guardian may be proceeded against in a surrogate's court, by attachment against his person, as for a contempt, where he neg- lects or refuses to comply with a decree made on a final ac- counting by which he is required to pay the balance in his hands to another guardian appointed in his stead, or to the ward, if he has attained his majority. 10 Barb. 524, aff. 1 Kern. 324. But this remedy will not be resorted tp imtil other remedies have been exhausted. And the fact that the sureties on a guardian's bond have not been prosecuted, has been held to be an answer to a motion for an attachment agaiust the guardian. 15 Abb. 350. And so, an executor may, in like manner, be proceeded against where a decree has been made against him by the surro- gate directing the payment of moneys to a legatee under the tes- tator's will ; and this, too, notwithstanding an execution may be issued for the collection of the same moneys. 10 Barb. 524, aff. 1 Kern. 324 ; 1 Brad. 490 ; but see contra, 1 Duer, 696. An attachment, however, will not be allowed where an execution has been issued for the collection of the moneys, which has been re- turned unsatisfied, and the executor, on the return of an order to show cause, sets up his inability to pay — unless it is made to appear that the debt was fraudulently contracted, or that the executor willfully retains possession of funds or assets, still in his hands, or refuses to pay when he has the means of doing so. 1 Brad. 490, 493. But the executor, in such case, should be re- quired to submit to an examination as to his property, and to consent to the application of his choses in action to the payment of the sum decreed, as conditions or terms of relief. lb. Nor will an attachment be granted against an administrator, for not making a payment out of the assets in his hands, pursuant to a 176 CONTEMPTS. [CH. Vll. former decree, where the assets have been attached in his hands, under the laws of another State, and by proceedings which con- stitute a lien on the funds. 3 Id. 419; and see 15 Abb. 351, note. If the defendant is committed for the- non-payment of costs, or other sum of money, he is entitled to the jail liberties, 4 Faige, 282 ; Id. 397 ; 2 Jiev. Stat. 433, § 40 ; otherwise, how- ever, where the party is committed for the non-payment of a fine ' imposed upon him by the court for the breach of an injimction, or other contempt. In such case he must be confined within the walls of the prison. Id. ibid. / 10 Pa/ige, 606. And so, a de- fendant committed for the non-payment of costs or other sum of money, may be discharged from imprisonment, under the statute, upon presenting a petition and making an assignment of his J)roperty. 2 Rev. Stat. 31, § 1. Loads of 1847, p. 491, § 1 ; 3 Paige, 38, 43 ; 4 Id. 282. Such discharge, however, is not au- thorized, where the party is in execution for a fine imposed for a contempt of court, or where he is committed for the non-perform- ance of some act or duty which it is in his power to perfonn. Id. ibid. 3. Violation of injunotion order.] It is also a contempt of court to violate an order of injunction granted in a case in which the court has jurisdiction. 2 Paige, 326 ; 4 Id. 444 ; 6 Abb. 244 ; 1 Diier, 512 ; 5 Seld. 263 ; 3 Sand. S. C. B. 676 ; 15 Barb. 194; 15 How. 81, And if the order of injunction is violated by a corporation, proceedings may be taken against it for the contempt. And al- though it cannot be attached, as in the case of natural per- sons, yet it may be punished by a fine, or the sequestration of its property. 12 Abb. 171, s. c. 20 How. 358. It is the duty of a party served with an injunction, not only to refrain from taking any further active part in the proceedings enjoined, but also to direct the officers of the court and others who act in the proceedings at his instance and under his con- trol, to delay further steps in the matter pending the injunc- tion. 5 Abb. 244 ; 15 How. 81. And therefore, if the party stands by and allows a process over which he has control to be executed, after he has himself been served with an injunction re- straining it, he is guilty of disobedience to the order, and may be CH. VII.] CONTEMPTS. 177 punislied as for a contempt. Id. ibid. And so, when an injunc- tion is directed to a corporation, it is operative and binding, not only upon the corporation itself", but upon every person whose personal action, as a member or officer of the corporate body, it seeks to restrain or control. 1 Duer, 451 ; Id. 512. And every such person is as fully bound to personal obedience, as if he were personally named ia the process; and is therefore just as liable for his disobedience. II.; and see 5 Selden, 263. If an injunction is violated, in a proceeding against a party for the contempt, the court will not look into the merits of the cause to see if the injunction was properly issued. 2 Paige, 326, sxvpra. " While the injunction remained in force," says Chan- cellor "Walworth, " it was the duty of the vice-chancellor to pun- ish every breach thereof; and in no case can a defendant be permitted to disobey an injunction regularly issued, whatever may be the final decision of the court upon the merits of the cause. If there is not sufficient equity upon the face of the bill to support the injunction, the proper course for the defendant is to apply at once for a dissolution." Ih. 329 ; and me 1 Duer, 452. A party, therefore, will be in contempt for breach of. an injunction, if the officer allowing it had jurisdiction, notwith- standing thdft it was erroneously granted, and for an insufficient cause. 4 Paige, 444. The point on this subject is stated in Wilcox V. Jackson (13 Peters, 511), thus : " Where a court has jurisdiction, it has a right to decide every question which occurs in the cause ; and whether its decision be correct or otherwise, its judgment, until reversed, is regarded as buiding in every other court. But if it acts without authority, its judgments and orders are regarded as nullities; they are not voidable, but simply void." And see also 1 Duer, 461 ; and 6 Selden, 263, 2Q&,per Johnson, J. ; 10 Aii. 62. But when the injunction which is violated has been erroneously issued, the court will take the fact into consideration in determining the extent of punishment to be imposed upon the party guilty of a breach of it. 4 Paige, 444, swpra. Nor is it any answer to the proceeding for a contempt, where the rights of the adverse party are involved, that the violation of the injunction was committed under the advice of counsel. 4 Paige, 163 ; Id. 450 ; 7 Id. 364. " The fact that the defendants acted imder the erroneous advice of counsel, to whom they ap- 178 CONTEMPTS. [CH. VII. plied for information how they could elude the justice of this court, and at the same time avoid punishment for a breach of the injunction, cannot protect them from a fine sufficient to com- pensate the adverse parties for the injuries they have sustained by the wrongful acts complained of; though it may furnish a ground to justify the court in refusing to inflict a further punish- ment upon the offenders for a violation of its order." Id. 367, per Walworth, Ch. ; and see 3 Sand. S. G. B. 662 ; 18 AVb. 420 ; 5 Bosw. 710. And to enable the court to regard such advice, the defendant should state the name of his counsel, the information, which was laid before him, and the exact im- port of the advice given ; and if the advice was written, the writing should be produced, or if not, it must be verified by the affidavit of the counsel who gave it. 1 Duer, 513. Nor is it any answer to the proceeding that the defendant believed the court .had no jurisdiction to make the order; and such be- lief, even, furnishes a very slight, if any, excuse for his disobe- dience. Id. In respect to the acts which will constitute a violation of an order of injunction, it has been held in a case where a party was restrained by injunction from interfering with the books and papers of a public office, that to assume the custody of the room appropriated to the office, and containing those books and papers, is a violation of the injunction, although the party does not touch the books and papers, nor allow others to do so. 5 Ahl. 244. And so, where an injunction was granted against the mayor, aldermen, and commonality of the city of New York, restraining them from granting the right to construct a certain railroad in that city — ^it was held that the passing of a resolution by the common council, granting that right, on con- dition that the grantees should accept the terms of the resolu- tion, was a violation of the injunction by those voting for it, whether the terms were accepted or not, the resolution itself doing all that could be done by the council to make the grant effectual. 5 Selden, 264 ; and see the case in the court below, 1 JDuer, 452; II. 512. {a). And so, also, where supplementary (a) See the eases here cited, ia respect to the liability of municipal corpora- tions, or the several members thereof, for contempt^ and the proceedings in such cases ; and see also, 15 Barl. 194. CH. Vn.] CONTEMPTS. 179 proceedings were instituted against a defendant, and lie was en- joined by an order of a justice of the court from disposing of, oi in any manner interfering with, his property, and the defendant delayed the proceedings, and protracted the appointment of a re- ceiver for a long period, and in the mean time confessed a judg- ment in another court to a third party, upon which an execution was issued and immediately returned, supplementary proceed- ings taken, a receiver appointed, and an assignment made to such receiver by the defendant under a judge's order, before a receiver in the first proceeding was appointed, and the latter was thereby prevented from receiving the fund which the party in that proceeding was seeking to reach — it appearing that the judgment was confessed for the purpose and with a view of en- abling the second judgment creditor to obtain a receiver and a transfer to him of the fund, and thereby to prevent the first credit- or from reaching it — it was held to be a plain and intentional violation of the injunction. 3 Sand. 8. O. R. 676 ; but see 4 Paige, 378. And so, under like circumstances, where the judg- ment debtor created a lien upon his real estate, situated in an- other State, by confessing a judgment to another, for a fictitious debt, this was held a contempt, for which he may be punished, by a fine to the amount of such judgment. 37 Barb. 610. But the mere confession of a judgment would not, of itself, be a vio- lation of such an injunction ; though it will be so deemed when accompanied by other acts showing an intent to change the dis- position of the debtor's property, to the prejudice of the party obtaining the injunction. 3 Sand. S. C. 676. If the. defendant has appealed from the judgjnent enjoining him, and has given security to stay the proceedings upon the judgment, the court will not, during the pendency of the appeal, allow an attachment against him for contempt in disregarding the injunction. 6 Bosw. 684, s. c. 11 Ahh. 28. But such appeal does not vacate the injunction. It operates only to suspend, for the time being, the power to punish the defendant for a violation of the injunction. And the defendant, therefore, after being duly notified of the judgment, proceeds at his peril, and if he violates its provisions he is in contempt, for which he will remain liable to punishment, and may be punished when the appeal is deter- mined, unless the judgment is reversed on the appeal. Jh. ; and see 6 Paige, 381. 180 CONTEMPTS. [CH. VII. In respect to tlie manner in which an order of injimction should be served to bring a party into contempt, see post, p. 184. 4. Breaking open sealed parts of hooks produced for inspeo- tion.} It is a contempt of court, also, to break open the sealed parts of books' produced for the inspection of an adverse party; so held, where the books, under the order of the court, were deposit- ed in a master's office, with liberty to the adverse party to inspect and take extracts from such parts as related to certain partner- ship transactions, with the parts thereof not relating to the part- nership transactions sealed up ; and the adverse party, during the absence of the master, broke open the sealed parts, which con- tained the private memoranda and remarks of the party deposit, ing the books, in relation to his private business. 2 Paige, 494. The chancellor, in that case, at first doubted the authority of the court to punish the improper conduct complained of; but on farther examination was satisfied that the case was provided for by the 2d and 8th sub-divisions of the first section of the statute. See ante, p. 170. " It was," he remarks, " an abuse of the proceed- ings of the court ; it was also a case in which the rights of the adverse party were materially involved. While the course of judicial investigation frequently requires a party to produce parts of his books in which the adverse party has an interest, for the inspection of the latter, it may frequently be of great import- ance to the former that his accounts and transactions with other persons should not be exposed to the examination of strangers, and particularly of an enraged adversary. "Where his books are subjected tO inspecti6n, it is the uniform practice of the court to permit a party to seal up those parts which do not relate to the subject of litigation. 1 Wils. CL R. 222 ; 1 Cox's Ca. 288. And it has been the practice of courts of record to protect suit- ors against any unwarrantable interference by the adverse party with rights of this description, by proceeding against the offend- er as for a contempt." Ih. 495. If the adverse party has reason to believe that the parts sealed contain matter material to him, his remedy is to apply to the court for an order directing them to be opened, 1 Barl. 8. C. E. 444 ; though if the books are produced before a referee, before making application to the court, the party should first apply for such order to the referee. Ih. CH. Vn.] CONTEMPTS. 181 5. Interfering with property in possession of receiver, commilr tee, (&c.] And bo, it is a contempt of coxirt to interfere witti prop- erty in the possession of an officer of the court; as, where property is rightfully in the hands of a receiver, it is in the custody of the conrt, and cannot be distrained upon for rent without permission of the court by whom the receiver was appointed ; and any per- son who takes the property out of the possession of the receiver, without such permission, after he has notice of the character in which such possession is holden, is guilty of a contempt. 7 Paige, 513. The proper course for the party claiming the prop- erty is to apply to the court appointing the receiver, for an order to pay or deliver it over to such party. 15 Abb. 388. So, it is a contempt of court to bring an action against a receiver, without leave of the court which appointed him ; and the proceediQgs in such an action wiU be stayed. 14 Id. 166. So, after a person is declared by inquisition to be a lunatic, it is a contempt of court for a creditor, or other person who is informed of the proceedings, to sue the lunatic, or to levy an exe- cution upon his property, or otherwise to interfere with it, without the permission of the court. 2 Id. 422 ; 3 Id. 199 ; 5 Id. 489. 6. Contempts in proceedings svpplementwry to execution.] If any person, party or witness, disobey an order of a judge, or referee, duly served, in proceedings supplementary to execution, such per- son, party, or witness may be punished by the judge as for a con- tempt. Code, § 302. And the court may also punish such diso- bedience. 13 Mow. 331, s. 0. 4 Aii. 93 ; 18 Id. 245 ; 13 Id. 459, s. c. 22 Mow. 309 ; but see 15 Abi. 308, 313, 7iote ; 2 E. B. Smith, 503; 2 Sand. 8. C. 726, s. c. 4 How. 369; 13 Id. 174, s. c. 3 Abb. 424. Thus, where a defendant is ordered to enter into an under- taking that he wUl attend, from time to time, before the judge as he shall direct, and that he will not, during the pendency of the proceedings, dispose of any portion of his property not exempt from execution, and omits to do so. Code, § 292 ; or where the party or witness is required to attend before the judge or referee, lb. § 296 ; or to apply any property of the judgment debtor to the satisfaction of the judgment, Ih. § 297; or is forbidden from transferring or disposing of the debtor's property, lb. § 298 ; in these cases, an omission or neglect to comply with the order of 182 CONTEMPTS. [CH. VII. the judge, will subject the person disobeying the order to pun- ishment as for a contempt. 3 Sand. S. C. 676; 37 Barb. 610 ; 2 Hilton, 94 ; 18 Abb. 245 ; 7 Id. 338, and cases supra. But, in all such cases of commitment, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be discharged from imprisonment by the judge or court committing him, or the court in which the judgment was rendered, on such terms as may be just. Code, § 302. In proceeding against a party for a contempt in refusing to be examined under sections 390, .393, of the Code, it need not appear that the misconduct was calculated to, or did, defeat, impair, impede, or prejudice the rights or remedies of any party, as required by the Revised Statutes. 16 Abb. 1. 7. Contempts in other cases.^ It is a contempt of the court, also, to bring an action in the name of another, without his privity or consent. 2 Johns. Gas. 291. The nominal plaintiff, in that case, being nonsuited, an attachment was allowed against the person who brought the action, for the costs. lb. / and see 2 Cowen, 589. And so, it is a contempt not to pay alimony directed by the court to be paid by the defendant in a suit commenced against him for a divorce. 15 JIow. 568 ; 2 Barb. Ch. R. 73. Though where alimony was fixed on a reference to a master, and the order of reference did not require the defendant to pay the sum which should be allowed ; and no order had been made requiring the de- fendant to pay the sum so allowed — it was held that the defendant was not liable for a contempt for not paying the same. lb. And so, it seems, a party may be punished as for a contempt for refusing compliance with an order of the court, made under the Code of Procedure, directing him to make discovery of books and papers in his possession. See Code of Pro. § 388 ; 1 Kernan 575, 682. It would be otherwise, however, in respect to an order of discovery made under the provisions of the Eevised Statutes. lb.; and 4 Wend. 196. And where the judgment of the general term, upon proceed- ings upon certiorari, ordered that the defendant deliver infant children to the relator who was adjudged to be entitled to their care and custody, and upon demand by the relator of the defend- ant for the delivery of the children in pursuance of the judgment CH. Vn.] CONTEMPTS. 183 and a refusal by the defendant to comply witli the demand, it was held on proceedings upon attachment against the defendant, by which it appeared that the defendant had removed the children to a foreign country pending the certiorari, that the defendant was in contempt, and must suffer the consequences. 21 How. 74. And so, a person who resides in the city of New York, and is taxed upon his personal property, may be punished as for a contempt, if he neglects to pay it. 19 Id. 475, s. c. 11 Ahh. 147. If a person to whom a writ of habeas corpus is directed, make an insuflScient or evasiye return, he may be proceeded against as for a contempt ; so held, where the return was, that the party, whose body was directed to be produced, was not in his custody ; it appearing from affidavits produced, that the party was, in fact, in the custody of a subordinate officer, acting under the order of the person to whom the writ was directed ; and that the command of the writ was intentionally eluded and disregarded. 10 Johns. R. 328 ; and see 2 Rev. Stat. 566, sec. 34. And it is a contempt, also, for a sheriff willfully to disobey the order of the court ; as, where a party committed for contempt was placed in the custody of the sheriff, who permitted him' to go at large in the sheriff's sitting-room ; it was held that this was an escape, and that the sheriff was guilty of a contempt. 10 Paige, 606. And so, in a creditor's suit in the late Court of Chancery, where the master directed the defendant to deliver to the receiver the possession of his property, the defendant, unless he applied to the court to review the decision, might be compelled, by pro- cess of contempt, to comply with the master's directions. 8 Paige, 388. The defendant, however, in such case, was not in contempt for neglecting to deliver over to the receiver property which was claimed to be in the possession of, and to be owned by, a third person ; unless the master decided that such property was owned by the defendant, and was under his control. Ih. 273. A party may also be proceeded against, as for a contempt, who refuses to attend and testify, when required to do so by an ad- verse party in an action under the Code of Procedure, Code, § 394 ; 6 Duer, 685, s. c. 14 How. 451 ; 1 Bosw. 655 ; or who re- fuses to attend before a judge to be examined on oath concerning property of the debtor in the possession of the party. Code, § 236, So, it is a contempt of court for a person, who knows of the ex- istence of an order for his arrest, in the hands of an officer, for the 184 CONTEMPTS. [CH, VIL purpose of being served upon tim, willfally to prevent, by open force, either made or directed, tbe service of such process. But in such case, the party should understand that the officer had such process, which he desired to serve. 6 Dv£fr, 682, *. c. 5 AU. 84. Mow order to ie served to iring party into contempt.'] It is not necessary that the order, for the violation of which the de- fendant is proceeded against for a contempt, should, in all cases, be served upon the party personally. In one case it was held to be sufficient if it is served upon the defendant's solicitor, where a knowledge of such service is brought home to him. 4 Paige, 405. So, if the defendant is informed of an order for an injunction, by a person who was present in court at the time it was granted, it is sufficient. 3 M. Ck. R. 236 ; 23 How. 1. So, if he has per- sonal notice of an order, by being himself in court when it is made, 2 Barb. Ch. Pr. 275 ; 2 Jac. & W. 264; 12 Ves. 202; 14 Id. 136 ; though it is not enough that he has heard in a gen- eral way, that the case has been decided in favor of the plaintiff, where he has no knowledge of the particulars ; or that the plain- tiff was entitled by the decision to enjoin the defendant. 5 Bom.o. 710. In the case of Coddington v. Webb (4 Sand. 8. C. 639), the court held that, for the purpose of founding a proceeding for a contempt of court, it is necessary to show the original order, with the signature of the judge, at the time of the delivery of the copy. To the same effect is the case of Watson v. Fuller (9 How. 425). In the former case, however, the injunction order was made ex parte ; and in the latter, the parties proceeded against were not parties to the action. The rule adopted in Coddington v. Webb, was referred to by Bosworth, J., in the case of The People v. Compton and others (1 Duer, 513, 553) ; and that judge, alluding to the manifest pro- priety of restricting the application of the rule there laid down, remarked : " The rule adopted in the case cited, if adhered to as a rule to be applied to all cases, would be productive of irrepara- ble injury to parties, as will be manifest from looking into the facts of some of the reported cas.es, which hold that a party may be punished as for a contempt, when he has knowingly and de- signedly done acts which he knew, at the time, the court had, by CH. VII.] CONTEMPTS. 185 an order, proMbited him from doing, although at the time no order had been served, or in fact entered — ^bnt had only been directed to be entered." The same learned justice also remarks, that " where a party is directed by an order of court to do some- thing, as, to pay money, deposit papers, &c., and his whole obli- gation to act at all depends not only on the existence of the order, but also upon its being served in a particular manner, it is a proper rule of practice not to hold him guilty of a disobedience of the order for not having done the thing required until he has been shown the order, and furnished with a copy of it." Ih. 554. And so, in The People v. Sturtevant (5 Selden, 263, 2Y8), the court, alluding to the practice in the late Court of Chancery, re- marked that that court " never lost sight of the principle that it was the disobedience to the order of the court which constituted the contempt, and, therefore, although it required of the party availing himself of its order, a substantial compliance with the rules and practice upon the subject, it would not usually allow the effect of its orders to be wholly lost, when the party sought to be bound by the order had actual knowledge or notice of its existence, although there might have occurred some slip in the formal method of bringing it home to him." And see 5 Alh. 251, per Ingraham F. J. ; 1 Craig & Phil. 98 ; 4 Myl. cfc C. 498. If the injunction order is granted by the court, and not by a judge out of court, it is properly served by delivering a certified copy ; and no exhibition of the original order is requisite. 5 Abb. 244, supra. And so, if the order is made at special term, and requires the payment of money, it is properly served on the per- son by delivering a copy of it to him, and at the same time showing him a certified copy of the original, and demanding pay- ment, by a person duly authorized, in writing, who exhibits his authority. 23 How. 134, a. c. 14 Ahh. 130. "Where it is sought to place a party in contempt for disobe- dience of a judgment requiring him to execute an instrument of a certain form, a certified copy of the judgment and a copy of the instrument proposed, should be served a reasonable time for him to examine, before making the peremptory demand for the execution of the instrument. 16 Abb. 399, note. The service of an injunction order upon a person who is not Vol. I.— 15 186 CONTEMPTS. [CH. VII. a party to the proceedings in whicli it was granted, and to whom the order is not directed, does not operate to bind him. Its ut- most effect upon him is as a notice. 19 Barb. 356. II. How Paeties Peocebded Against. Courts and offio&rs hamng jurisdiction..] The proceedings for contempts to enforce civil remedies, and to protect the rights of parties in civil actions, are confined by the statute here con- sidered to courts of record. 2 Bev. Stat. 534, sec. 1. Jurisdiction, however, in such proceedings, is conferred by other statutes upon surrogates' courts, though not courts of record, to the same ex- tent, substantially, as upon the latter courts {a). 10 Barl. 524, aff. 1 Kern. 324; 1 Brad. 490 ; 3 Id. 419; 1 Duer, 696 ; 15 AVb. 361, and note. By the Code of Procedure, also, if any person, party, or wit- ness, disobey an order of the judge or referee duly served, in proceedrQgs supplementary to execution, such person, party, or witness may be punished by the judge, as for a contempt, (5) Code, § 302; 3 Sand. S. C. E. 6T6 ; ante, p. 181. And the power to punish in such case is not confined to the judge, but the court, also, may punish the disobedience. 13 Sow. 331, s. c. 4 Abb. 93 ; 18 Id. 245 ; 13 Id. 459, s. c. 22 Row. 309 ; but see 15 Abb. 308, 313, oiote; 2 E. D. Smith, 503 ; 2 Sand. S. C. 726, s. c. 4 How. 369; 13 Id. 174, s. c. 3 Abb. 424. Who may aipply for am. order to punish a party for con- tempt.'] The person applying to punish a party for a contempt must show that he has some interest in the subject matter of the (a) By the Eevised Statutes (2 if. S. 221, sees. 6 and 9), the surrogate has power to punish witnesses for disobedience to subpoenas, or for refusing to testify ; to enforce all lawful orders, process, and decrees, by attacliment ; and to issue process to, and exact obedience from sheriffs, jailors, coroners, or other executive officers. And by the act of sec. 1631 (p. 535, sec. 6'7),the 10th, 12th, and 13th sections, and also sections 16 to 32, of the Eevised Statutes, here considered, are made to apply to attachments issued by surrogates' courts. (S) Although the Code of Procedure gives to the judge the power of punishing contempts to his orders, reference must be had to the statutory provisions here con- sidered, as to the mode in which that power is to be exercised. 2 Sand. S. 0. T24 ; s. c. 4 Bow. 369 ; amd see notes to % 302 of Voorhies' Code. If the party is proceeded against by attachment, it may properly, in such case, be made returnable before the judge at hia office. Id. ibid. ; and see 2 E. D. SmiOi, 503. CH. VII.] COlirTEMPTS. 187 injunction or other matter pending in court, or that he has a right to prosecute for the misconduct or other injury complained of. 4 Paige, 163. It is otherwise, however, in respect to infants, lunatics, &c., who are unable to protect their own rights. Fb. Within what time the attachment should le allied for.'\ There is no statutory limitation of the time within which the attachment should be issued in this State. But the writ will not be granted where the party has slept upon his rights. Thus, where it was sought to attach an attorney for the non- payment of money collected by him for a client, it was held that the attachment would not lie, after the remedy against the attorney by action was barred by the statute of limitations. 36 Barl). 663. " The proceeding by attachment to compel the pay- ment of money is a civil remedy, and, unless a legal right be established, the application for the attachment is without founda- tion. The court will not compel payment in any form of pro- ceeding when it is made to appear that there is nothing due according to the law of the land." Il>. 666,j)er Bockes, J.; and see 12 Barh. 446. Where application to he made.] The application to punish a party for a contempt must be made to the court in which the cause or matter prejudiced by the misconduct alleged, is depend- ing. 2 Ren. Stat. 534, sec. 1, supra. Where, however, the misconduct has occurred at any circuit court, or in reference to any process or proceedings pending in or returnable to such court, and which has not been punished by such court, the Supreme Court shall have the same jurisdiction and power to inquire into and punish the same, as if such mis- conduct had occurred in the Supreme Court, or in reference to any process or proceedings therein. Ih. 539, sec. 33. {a) And so, where the contempt charged consists in disobedience to an order made by a judge or referee in supplementary proceed- (a) The Eevisers, in their original note to this section, remark that "ques- tions may arise, how far the circuit courts are now distinct from and independent of the Supreme Court. To remove all room for doubt, and to provide for cases where it will be absolutely necessary such a power should be exercised by the Supreme Coiirt, this section is prepared." 3 Eev. Stat. 2d ed. Ili. 188 CONTEMPTS. [CH. VII. ings, the application should be made to the judge making the order, or appointing the referee. Code of Pro. § 302 ; and, see ante, p. 186, nets i. Though the court, also, may entertain the jurisdiction and punish the disobedience to the judge's order. 13 Bow. 331, s. c. 4 Abb. 93 ; 18 Id. 245 ; 13 Id. 459, s. c. 22 Bow. 309 ; but see 16 Abb. 308, 313, note ; 2 K D. Smith, 503 ; 2 Sand. S. O. 726, s. G. 4 Bow. 369 ; 13 Id. 174, «. c. 3 Abb. 424. If the proceedings are instituted before an officer, they do not abate upon his death, or the expiration of his term of office, but may be continued before his successor. 15 Abb. 307. The court or officer will not lose jurisdiction in proceedings supplementary to execution, where the examination has been sus- pended by his motion to vacate the proceedings for irregularity, and the proceedings are adjourned, and he fails to attend at the adjourned day, although the adjournment was made in the ab- sence of the party, and upon the consent of his attorney only. 15 Abb. 410, note ; Ih. 314, a7id note. "Where a rule shall be entered in any court requiring any offi- cer, or other person, to whom any process of such court has been directed and delivered, to return the same, an attachment will issue for disobedience to such rule, of course, and without special application to the court. 2 Hev. Stat. 536, sec. 6 ; Swp. Court Mules, No. 8 ; and Rules of 1847, No. 13, post. And an attach- ment will also issue against a sheriff, without special application to the court, where he fails to return an attachment issued for a contempt, by the return day therein specified, and without any previous rule or order for that purpose. 2 Rev. Stat. 537, sec. 17, post. In such case, the application must be made to a judge of the court, or some officer authorized to perform the duties of such judge. lb. sees. 1-1, 17. Methods of proceeding, and how application to be made.] The statute provides that when any misconduct punishable by fine and imprisonment is not committed in the immediate view and presence of the court, the court shall be satisfied by due proof, by affidavit, of the facts charged, and shall cause a copy of such affidavits to be served on the party accused, a reasonable time to enable him to make his defence; except in cases of disobedience to any rule or order requiring the payment of money, and of disobedience to any subpoena. 2 Re^o. Stat. 535, sec. 3. CH. VII.] CONTEMPTS. 189 And -when any rule or order of the court has been made foi: the payment of costs or any other sum of money, and proof, by affidavit, has been made of the personal demand of such sum of money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison until such sum, and the costs and expenses of the proceedings, are paid. Ih. sec. 4. In aU cases, other than that specified in the last section, the court is required either to grant an order on the accused party, to show cause, at some reasonable time to be therein specified, why he should not be punished for the alleged misconduct ; or to issue an attachment to arrest such party, and to bring him before the court to answer for such misconduct. Ih. sec. 5. But when a rule shall have been entered in any court, ac- cording to the practice thereof, requiring any officer or other per- son, to whom any process of such court may have been directed and delivered, to return the same, an attachment for disobedience of such rule may issue, according to the practice of the court, to arrest such officer or person, to answer for such disobedience, without special application to the court. Ih. sec. 6 ; cmd see Swp. Court Mules, !N'o. 8, cmd Rules qf 1847, No. 13, post. The statute thus allows two methods of proceeding against a party as for a contempt to enforce civil remedies {i. e., in all cases, except where the contempt is for the non-payment of money), viz. : by attachment to bring the party into court to answer for the alleged contempt, or by an order for the accused to show cause why he should not be punished for his alleged misconduct 9 Paige, 3Y2 ; 2 Sand. S. O. 724, 728, s. c. 4 Ho^. 369. In respect to attachments against a sheriff or other officer for not returning process, &c., in actions under the Code of Pro- cedure, it is provided by rule 8 of the Supreme Court, that at any time after the day when it is the duty of the sheriff or other officer to return, deliver, or file any process, undertaking, order, or other paper, by the provisions of the Code of Procedure, any party entitled to have such act done, may serve on the officer a notice to return, deliver, or file such process, undertaking, order, or other paper, as the case may be, within ten days ; or show cause at a special term, to be designated in said notice, why an attachment should not issue against him. For form of notice, see Appendix, No. 105, And in proceedings other than those relating to actions under 190 CONTEMPTS. [CH. YII. the Code, the party interested may serve a notice upon the offi- cer at any time before the return day of the vsrit, requiring him to return such writ within twenty days after service of such notice ; and, if not so returned, upon filing in the office of the clerk of the county in which the writ is returnable, an affidavit of the service of such notice, and of the delivery of the writ, the officer's default may be entered, and an attachment issued of course. See Sup. Court Rules, No. 13. "Where, however, the attachment is issued against an officer for neglect to return an attachment issued in proceedings for contempts, such attach- ment issues, of course, without any previous rule or order for that purpose, upon being allowed by a judge of the court, or by some officer authorized to perform the duties of such judge. 2 Rev. Stat. 53Y, sec. 17. The application for an attachment may be made ex-pa^te, or on notice of motion, accompanied by copies of the papers on which the same is founded. And whether it shall issue in the first instance, or on notice, is in the discretion of the court, or officer granting it. The usual and more advisable course, how- ever is — except in those cases where it may be important for the rights of the party prejudiced, that the defendant be brought into court in the first instance — to apply for the attachment on notice in the usual manner, or on an order to show cause. 9 Paige, 372, 2 Sand, S. G. 724, 728, s. c. 4:Row. 369 ; and see 1 Hill. 168 ; 10 Johns. 333. For forms in proceedings for attachment generally see Appendix, Nos. 102 to 127. The application is founded upon affidavits, setting forth the neglect or violation of duty, or the misconduct complained of; though where the misconduct is committed in the immediate view and presence of the court, it may be punished summarily. 2 Rev. Stat. 535, sees. 2, 3 1. Proceedings hy attoichment.'] In proceeding by attach- ment, the party complaining of the alleged misconduct must produce proof, by affidavit, or other legal evidence, showing that the party is in contempt. Sec. 3, supra. For form of affidavit, see Appendix, No. 110. Copies of the affidavit and other papers on which the application is founded, must be served upon the party accused, a reasonable time to enable him to make his defence ; except where the party is proceeded against for disobedience to CH. vil] contempts. 191 any order requiring the payment of money, and for disobedience to any subpoena. Tb. It is sufficient if copies of the papers are served simultaneously with the attachment. 2 Sand. S. C. 728 ; s. 0. 4 How. 369. The affidavits on which the attachment is founded, as well as the attachment and subsequent proceedings, where the attach- ment is issued against the parties to the writ, are properly entit- led ia the original cause. 4 Paige, 360 ; 7 Id. 325; 1 Barb. S. C. B. 227. Though where the proceeding is against persons who are not parties to the suit, the affidavit and papers previous to and including the order for the attachment, should be entitled in the original cause, and all the subsequent proceedings should be in the name of the people, on the relation of the party pros- ecuting the attachment. 4 Paige, supra; 5 Johns. 235; 9 Id. 160. Thus, " The People of the State of New Tork ex rel. A. B. (the plaintiff) against C. D., sheriff of the county of Washing- ton. Id. ibid. ; 1 Bur. Pr. 359. "Where both parties are heard on the application for an at- tachment, if the affidavits in relation to the alleged contempt are conflicting, an attachment will properly issue to bring the defendant into court, so that he may be examined on interroga- tories as to the contempt, and to enable the plaintiff to compel the attendance of witnesses to prove the facts. 4 Paige, 378. It is no answer to the application for an attachment against the defendant, that the order for the disobedience of which he is sought to be punished, was improperly issued, where such order was obtained on a motion which the defendant neglected to oppose. 3 Paige, 263 ; and see 2 Id. 326 ; 4 Id. 444. The order for the attachment should not contain an adjudication of the court that the defendant is guilty of the contempt ; but it should merely direct the issuing of the attachment, or declare only, that it appears to the court that there is propable cause foi the issuing of an attachment, to bring the defendant before the court to answer as to the alleged contempt. lb. At the time the attachment is directed to be issued, the court must, also, direct the penalty in which the defendant must give bond for his appearance to answer. 2 Bev. Stat. 536, sec 10. And the clerk should indorse upon the attachment a certificate to the effect that the same is issued by the special order of the court. lb. sec. 14. 192 . CONTEMPTS. [CH. VIL The attachment should be directed to the sheriff of the coun- ty ; though where the sheriff is the party proceeded agaiost, or is otherwise interested in the proceeding, it should be directed to the coroner. It should be made returnable at a special term ; and is tested, signed, and sealed like ordinary process. See 15 Row. 494; &wp. Cov/rt Bules, No. 40. If, however, the attach- ment is issued by a judge, it should be made returnable before him, and not before one of the judges of the Court at Chambers. 28 If&w York, 318. 2. Order to show ccmse.] The application for an order that the party show cause why he should not be proceeded against for a contempt, is, like the application for an attachment, founded upon affidavit showing the misconduct alleged. 2 Jiev. Stat. 536, sec. 3. It is brought on like other motions founded on orders to show cause. The order should require the party to show cause why he should not be punished for the alleged misconduct ; succinct- ly and plainly specifying the nature of the application. 37 £arh. 97. The order, with copies of the affidavit and other papers on which it is founded must be served upon the party accused, a reasonable time before the hearing ; and the time for the hear- ing must be specified in the order. 2 Hev. Stat. 536, sec. 5. For form of order, see Aj^enMx, No. 111. The order should be served upon the party personally. 2 Barb. Oh. Pr. 278 ; 12 Abb. 385, s. c. on appeal, 37 JBarb. 97 ; and see ante, p. 184. And it is not sufficient to serve upon the attorney for the party. If the party cannot be served with an order to show cause, an application should be made for an at- tachment against him, to compel his attendance before the court, and, if necessary, for alias or jlwries writs. 37 Barb. 97, mipra. But personal service cannot be dispensed with. lb. ; but see 2 Barb. Oh. Pr. 278; 9 Pa^ge, 374; 12 Abl. 386. If the defendant does not appear at the day appointed, or at Buch other day as may be afterwards designated for that pur- pose, or if he appears and does not deny the alleged misconduct, the court may at once proceed to make a final decision, that the accused has been guilty of the contempt charged, and to award the proper punishment, as directed by the statute. If the alleged CH. vil] contempts, 193 misconduct is denied, the court may discliarge the order to show cause ; or may allow interrogatories to be filed, and direct a reference to take the answers of the defendant to such inter- rogatories, and to take such proof as either party may wish to offer, and report the same to the court. 9 Paige, 3Y5 ; and see 4 Id. 378 ; 2 Sand. S. C. 724, s. c. 4 How. 369 ; 14 Aii. 166. And whenever a party appears on an order to show cause, or whenever he is brought before the court on an attachment, for a contempt, interrogatories must in aU cases be filed, before the party can be punished ; except where the misconduct has been committed in the presence of the court, or where the party has disobeyed a subpoena, or a rule or order for the payment of money. 37 Barb. 98, s. c. in court below, 12 Aib. 385. If a reference is ordered, the proofe themselves should be re- ported to the court, and not merely the referee's opinion thereon; and the court is to determine, upon the original affidavits, the answers of the defendant, and such subsequent proofs, whether the accused has been guilty of the alleged misconduct. 9 Paige, 375, per Walworth, Ch. ; and see 4 Id. 378 ; 2 iSamd. S. C. 724; s. c. 4 Row. 369. Habeas corpus may issue where party is in custody^ If the party charged with misconduct, is in the custody bf any officer, by virtue of an execution against his body, or by virtue of any process for other contempts or misconduct, the court is authorized to award a writ of habeas corpus, to bring up the body of such person, to answer for such misconduct. 2 Refo. Stat. 536, sec. 7 ; 22 Wend. 635. In cases where a party is entitled to an attachment against any person, without the special order of the court, and such per- son shall be in custody, as specified in the last section, a writ of habeas corpus, to bring up such person, may be allowed by any judge of the court, or by any officer authorized to perform the duties of such judge in vacation. 2 Rev. Stat. 536, sec. 8. Such writ shall authorize the sheriff in whose custody such person shall be, to remove and bring him before the court to which the same is returnable, and to detain him at the place where such court shall be sitting, until some order be made by the court for his disposition. Ih. sec. 9. 194 CONTEMPTS. [CH. VII. The court to direct the penalty of the iond, c&c.'] When the attachment is issued by the special order of the court, under the statute, the court must direct the penalty in which the defendant must give bond for his appearance to answer. 2 JSev. Stat. 536, sec. 10. In all other cases, when a party shall be entitled to an attach- ment, without the special order of the court, he shall make application to a judge of the court, or to some oflScer authorized to perform the duties of such judge, who, upon due proof of the facts and circumstances, shall direct the penalty in which the de- fendant shall give bond for his appearance, to answer to the mat- ters alleged against him ; and shall indorse such order on the attachment. li. sec. 11. And if, in such case, the order speci- fying the sum in which the defendant is to be held to bail, is not indorsed upon the attachment, the defendant may be discharged from arrest on executing a bond in the penalty of one hundred dollars, with sureties, as prescribed by the statute. Ih. sec. 15, post. ; 21 Wend. 51. Arrest of defendant and duty of sheriff.'] Upon arresting the defendant upon an attachment, to answer for any alleged misconduct, the sheriff is required to keep such defendant in his actual custody, and to bring him personally before the court issu- ing the attachment ; and to keep and detain him in his custody, untU the court shall make some order in the premises ; unless such defendant entitles himself to be discharged by giving the bond prescribed by the statute. 2 Eev. Stat. 536. sec. 12; 1 HUl, 154. But when the court has once acquired jurisdiction, by arrest, under an attachment for contempt, it continues, while the case is under consideration, whether the defendant remains in actual custody, or not. Ih. The inability of the defendant, from sickness, or otherwise, to attend the court, personally, will be a sufficient excuse for not bringing him before the court. Nor will the officer be required, in any case, to confine any person arrested upon an attachment to answer for misconduct, in any prison, or otherwise to restrain him of personal liberty, except so far as shall be necessary to secure his personal attendance. 2 Bev. Stat. 540, sec. 37. CH. VII.] CONTEMPTS. 195 When defendant to le discharged on gwing hond, c&c] In cases where a sum shall have been indorsed on any attachment issued by the special order of the court, and where any sum shall have been so indorsed by any judge or other officer, as prescribed by the statute, the defendant shall be discharged from arrest on such attachment, upon executing and delivering to the officer making the same, at any time before the return day in such writ, a bond, with two sufficient sureties, in the penalty indorsed on such attachment, to such officer, by his name of office, and his assigns, with a condition that the defendant will appear on the re- turn of such attachment, and abide the order and jiidgment of the court thereupon. 2 Bev. Stat. 537, sec. 13. For form, see Appen- dix, JSTo. 115. Where the sheriff took from the prisoner a bond with one sure- ty, instead of two, it was held to be irregular only, and not void. But a sheriff who lets his prisoner go at large, on executing such a bond, would be liable for an escape. 14 Abh. 410, s. g. 37 Barb. 179. Where the attachment is issued without the special order of the court, and an order specifying the sum in which the defend- ant is to be held to bail is not indorsed thereon, the defendant ia required to be discharged from the arrest thereon, on executing a bond in the penalty of one hundred dollars, with sureties, in the same manner, and with the like condition, as above required. 2 Bev. Stat. 537, sec. 15. And where the attachment was issued against an officer, without the special order of the court, and without any order fixing the amount of the bond, and the officer gave a bond to be discharged from arrest, with a penalty exceeding one hundred dollars — it was held that the bond was void. The penalty, in such case, cannot legally exceed one hundred dollars. 21 Wend. 57. Upon returning any attachment, the officer executing the same must return the bond, if any taken by him, of the defend- ant, which must be filed with the attachment. 2 Bev. Stat. 537, sec. 16. When defendant cannot he discharged except hy court.'] In cases where the attachment is issued by the special order of the court, and no sum is specified in which the defendant shall 196 CONTEMPTS. [CH. Vn. be held to bail, he shall not be entitled to be discharged from the arrest on the attachment upon executing any bond, or in any other manner, unless upon the special order of the court issuing the attachment. 2 B&o. Stat. 537, sec. 14. And so, when a sheriff or other ofiBcer is proceeded against for not returning an attachment, as required by the statute, and such officer is arrested, he is not to be discharged upon bail, or in any manner, except by the order of the court. Ih. sees. 17, 18, post. Sheriff'' s relm/rn, and attachment for defaMlt.'] The sheriff or officer to whom the attachment is delivered, is required by the statute to return the same by the return day specified therein, without any previous rule or order for that purpose; and in case of default, an attachment may be issued against him, of course, upon being allowed by a judge of the court, or by some officer authorized to perform the duties of such judge, upon proof of such default. 2 Rev. Stai. 537, sec. 17. And the court, in term time, may also allow such attachment. 23 Wend. 102. The court, or judge, in the allowance of the attachment against the sheriff or officer, must state the cause of issuing the same, and that the defendant is not to be discharged upon bail, or in any other manner, but by order of the court. 2 Bev. Stat. 537 sec. 17. The officer to whom the last-mentioned attachment is deliv- ered, is required to execute the same by arresting and keeping the defendant in his custody, bringing him personally before the court, and detaining him in his custody until the order of the court. Ih. see. 18. The sheriff or officer who serves the attachment must return the same to the court, at the place where the court is held, on the return day of the attachment, and during the actual sitting of the court on that day. 7 Paige, 435 ; and see 3 Id. 85. For form of sheriff's return, see Appendix, No. 114. But he has the whole time of the actual sitting of the court upon the return day to return the same, unless he is specially directed by the court to return it immediately. And where the party prose- cuting the attachment wishes to expedite the proceedings, he may, upon an affidavit of delivery of the process to the proper CH. VII.] CONTEMPTS. 197 officer, a sufficient time before tte return day, to have enabled him to serve and return it, and that it has not been returned, move the court, previous to its adjournment on the return day, for an order that such officer return the attachment during the sitting of the court on that day, or that an attachment issue against him, upon filing the clerk's certificate of his default. But it is irregular to take out an attachment against the officer during the actual sitting of the court on that day. 1 Paige, 435, mpra. If the attachment, which is returnable on a particular day, is not received by the sheriff in time to serve it, and to bring the defendant before the court at the place required, he should not arrest the defendant, but should return the attachment tarde. 4 Id. 360. Proceedings in case of defendomCs default^ If the attach- ment which has been issued against a defendant is returned served, and the defendant does not appear on the return day thereof, the court may either award another attachment, or may order the bond, taken on the arrest, to be prosecuted, or both. 2 Rev. Stat. 539, sec. 27. For form of order that attachment issue, see Appendix, I^o. 116. If the bond is ordered to be prose- cuted, the order should also specify the name of the aggrieved party, and should authorize him to prosecute the same. lb. sec. 28 ; and see 21 Wend. 57. For form, see Aj>pendix, No. 118. Bat if there is no party aggrieved by the misconduct of the de- fendant, the order should direct it to be prosecuted by the attor- ney-general, or by the district attorney of the county in which the bond was taken, in the name of the officer who took the same. 2 Pev. Stat. 539, see. 30, If a bond has been given, and the attachment is returnable before the Supreme Court, at special term, it is not absolutely necessary that the defendant should be called on the first, or re- turn day, especially if the attachment is not filed on that day. An appearance on the second day is sufficient for him, as well as for the relator. 15 Mow. 494. Formerly, the defendant was required at least to appear on the second non-enumerated day in term, Jh. ; 3 Wend. 423 ; and the court requires nothing more than that now, by requiring him to appear on the second day in a special term. 15 Mow. 494, supra. 198 CONTEMPTS. [CH. VII Proceedings on the return of the attachment ; filing of inter- rogatories, (&G.'] The statute provides that when the defendant is arrested npon the attachment, and brought into court, or has appeared therein, the court will cause interrogatories to be filed, specifying the facts and circumstances alleged against the de- fendant, and requiring his answer thereto ; to which the defend- ant shall make written answers, on oath, within such reasonable time as the court may aUow. And the court may receive any aflSidavits or other proofs, contradictory of the answers of the de- fendant, or in confirmation thereof; and upon the original affi- davits, such answers and such subsequent proof shall determine whether the defendant has been guilty of the misconduct alleged. 2 Hev. Stat. 53Y, sec. 19. {a) It seems to be necessary,, under the statute, where the party is brought into court, on attachment, that interrogatories should be filed, as above required, unless the defendant admits the alleged contempt, 4 Paige, 378 ; 2 Sand. S. G. R. 728 ; 5 Duer, 630 ; except where the misconduct has been committed in the presence of the court, or where the party has disobeyed a subpoena, or a rule or order for the payment of money. 37 Barb. 98. The interrogatories, under the former practice, were required to be filed within four days after the return of the attachment ; and the defendant either remained in custody or put in bail, or his recognizance was taken to appear, from day to day, until the court determined the case, 1 Johns. Cos. 31 ; 3 Cowen, 341 ; and if the interrogatories were not exhibited within that time the defendant might move to be discharged out of custody, or if (a) The following is the Revisers' original note to this section : " By the existing lav, if a defendant, brought up on attachment, purges himself by setting up new matter or otherwise, no contradictory evidence can be received, and he must be dis- charged. True, the remedy is, by indictment for perjury ; but this affords no relief to the party, and his civil remedy is thus merged in the pubUc offense. This doc- trine of merger is, in all other cases, abohshed in this State, and no reason whatever is perceived for retaining it in this case. But, on the contrary, as the proceeding treated of in this article is whoUy to enforce civil remedies, it would seem that the object and design would be entirely frustrated by stopping short, on the defendant's denial, or showing some new matter which the adverse party may have the means of disproving. The practice of examining on oath is borrowed from chancery, 4 Black. 223 ; but in that court, evidence is, and ever was received, to contradict the defendant." 3 Beni. Stat 2d ed. 11Z. , CH. Vn.] CONTEMPTS. 199 he was out on bail, for the discharge of his recognizance. 2 Wend, 617. The party prosecuting the attachment might, how- ever, exhibit his interrogatories at any time before the motion was actually made. 2 UawTi. c. 22, sec. 1 ; 1 Graham's Pr. M ed. 696. The same practice, no doubt, still prevails in the Supreme Court, except that now, when the attachment is returnable at a special term, the interrogatories must be filed within two days from the return of the attachment. See 15 How. 494. A copy of the interrogatories should be served upon the defendant. 2 Paige, 103. In the case cited, the court direct- ed an order requiring the prosecutor to file interrogatories in relation to the alleged contempt, and to serve a copy thereof upon the defendant; and that the defendant put in written answers thereto, upon oath, and file the same within twenty-four hours thereafter. After the interrogatories are filed, if the defendant refuses to make written answers thereto, on oath, within the time directed by the court, he may be recommitted ; or if out on bail, and he fails to attend to be examined, the court may either award an- other attachment, or may order the bond taken on the arrest to be prosecuted, or both. 2 Bev. Stat. 537, sec. 13 ; Id. 539, sec. 27; IDall.ZlQ. The interrogatories must be confined to the subject matter of the misconduct alleged, and not to any previous or other pro- ceeding. 1 Barb. S. C. R. 228 ; amd see 9 Paige, 376. And if the interrogatories are improper, the defendant may except or demur to them. 12 Mod. 499 ; 8tr. 444 ; 1 Barb. 228, supra. Thus he may demur where the interrogatories relate to other alleged contempts than that for which he is arrested, lb. If the interrogatories are defective, they may be amended, where an amendment is necessary for the purpose of explaining an ambiguity, or obtaining a full answer to matters already stated. 1 Johns. Gas. 31 ; 6 Gowen, 41. Thus, in a case where a sheriff, brought up on an attachment for not returning ^^fi.fa. in answer to the interrogatories filed, said, that \hefi. fa. had been received by his xmder-sheriff ; and that the money had been collected ; and that he had not returned the execution ; but did not say whether he had received notice of a rule to make the return — ^the court allowed an amendment, inserting an additional interrogatory, it appearing that the attorney for the plaintiff 200 CONTEMPTS. [CH. Vn. had inadvertently omitted an interrogatory to that point. Ih. An amendment, however, it seems, will not be allowed for the purpose of introducing any new matter. 1 Johns. Cos. 31, supra. All the interrogatories, material to show the misconduct alleged, must be answered by the defendant. And so, also, inter- rogatories which are designed to show, by the answers of the accused, the true nature and character of the misconduct, must be answered. 1 Duer, 512. Thus, whether the accused had voted for certain resolutions, the passage of which was relied on as evidence to show that his disobedience to an injunction was intentional and wUlfiil. Ih. The party must file his interrogatories, and obtain answers thereto, before the court can make a final order ; unless the ac- cused, upon being brought into court, upon the attachment, ad- mits the contempt, as charged. 9 Paige, 372. Upon the interrogatories being filed and answered, the court proceeds in a summary manner to decide whether the defendant has been guilty of the misconduct alleged. And in determining that question, the court, as we have seen, may receive, and take into consideration, the original affidavits, and, also, any other af- fidavits or other proofs contradictory of the answers of the defend- ant, or in confirmation thereof. 2 Rev. Stat. 537, sec. 19, supra. Where the defendant is proceeded against by an order to show cause, if he appears and denies the contempt, the subse- quent proceedings are the same, substantially, as upon the return of an attachment against him. 4 Paige, 378. But it is not essential to the validity of any final order that may be made, that interrogatories should be filed and answered. 5 Duer, 629. And, it seems, it is sufficient, in general, if the course pursued conforms to the practice of the court upon any order to show cause why relief should not be granted. Ih. Reference to examine party and report as to contempt.'] The court may, in its discretion, order a reference to some suitable and proper person, to take the answer of the defendant to the interrogatories, and to take and report such other evidence as either party may wish to produce before him, in respect to the alleged contempt. 7 Paige, 372; Id. 603; 2 Rarh. Ch. Pr. 277, and note; 3 Sand. S. 0. R. 677; 5 Duer, 629; 8 Row. 61, CH. Vn.] CONTEMPTS. 201 65 ; Laws of 1847, p. 344, see. T7. And where, on the retnm of an order to show canse, the opposing affidavits render it clear that the party had no intention to commit the contempt al- leged, the conrt will not direct a reference to enable the moving party to give proof of such intention. 5 Abb. 84, ». c. 6 Duer, 682. "Wiere interrogatories and defendant's answers thereto have been filed without any order of reference, the plaintiff may read affidavits in opposition to such answers. 23 How. 134 s. c. 14 Ahh. 130. Upon the hearing of the matter before the referee, he is not authorized to receive the ex-parte affidavits of witnesses ; unless the court, by the order of reference, specially directs him to receive such affidavits as proof. And the court will not, as a general rule, allow ex-parte affidavits to be used on such refer- ence ; but will compel the parties to produce and examine the witnesses before the referee, so that they may be cross-examined by the adverse party. 7 Paige, 603. K the answers of the defendant to the interrogatories are short and evasive, they may be excepted to ; and if they appear to be insufficient, the court wiU order them to be sent back to the referee, that they may be fiilly answered. 2 Barb. Ch. Pr. After the answers of the defendant, and the other proofs, have been taken, the referee must report the same to the court ; and it is not enough that he reports merely his opinion upon such proofs. 7 Paige, 372. Proceedings if defendant is fownd guilty.'] It is provided by the statute, that if the court shall adjudge the defendant to have been guilty of the misconduct alleged, and that such mis- conduct was calculated to, or actually did, defeat, impair, impede, or prejudice the rights or remedies of any party, in a cause or matter depending in such court, it shall proceed to impose a fine, or to imprison him, or both, as the nature of the case shall require. 2 Bev. Stat. 538, sec. 20, as amended by Laws of 1843; chap. 9. If the relator has sustained an actual loss, the amount of it may be ascertained by a reference for that purpose. It would be improper, however, to comprise the inquiry in respect to the Vol. L— 18 202 CONTEMPTS. [p^- "^^• Idamages sustained, with that in relation to the misconduct charged. 1 Hof. Pr. Ml ; 2 Barl. Ch. Pr. 2Y9. Punishment of defendant, and extent thereof:] The statute provides, that if an actual loss or injury shall have been produced to any party, by the misconduct alleged, a fine shall be imposed sufficient to indemnify such party, and to satisfy his costs and expenses, which shall be paid over to him, on the order of the court. 2 Bev. Stat. 538, sec. 21. In all other cases the fine shall not exceed two hundred and fifty dollars, over and above the costs and expenses of the proceedings. Ih. sec. 22. ^ When the misconduct complained of, consists in the omis- sion to perform some act or duty, which it is yet in the power of the defendant to perform, he shall be imprisoned only until he shall have performed such act or duty, and paid such fine as shall be imposed, and the costs and expenses of the proceedings. Ih. sec. 23. In all other cases, where no special provision is otherwise made by law, if imprisonment be ordered, it shall be for some reasonable time, not exceeding six months, and until the expenses of the proceeding are paid ; and, also, if a fine be imposed, until such a fine be paid ; and in the order and process of commitment, the duration of such imprisonment shall be expressed. Xh. sec. 25. If the misconduct consists in the refusal to pay costs, or any other sum of money ordered to be paid by the court, the party is to be imprisoned until such sum and the costs and expenses of the proceedings are paid, Tb. 535, sec. 4:. In respect to the punishment to be inflicted for misconduct, which has been productive of an actual injury to the relator, the court has no discretion, "but must impose a fine sufficient to in- demnify the party for the injury, and for his costs and expenses. 1 Paige, 364; 2 Id. 326; 1 Piter, 513. Thus, where the de- fendants were proceeded against for the violation of an injunction requiring them to deliver over their property to the receiver in a creditor's suit, and the defendants, in violation of the injunc- tion, procured the same to be delivered to the sheriff for the bene- fit of other creditors, the defendants were fined a sum equal to the value of the property delivered to the sheriff, and the costs of the proceedings upon the attachment. 7 Paige, sitpra. And CH. VII.] CONTEMPTS. 203 SO, in supplementary proceedings, where it appeared that the fund diverted by the defendant's violation of the injunctiou was sufficient to pay the plaintiff's debt and costs, the defendant was fined a sum equal to the amount of the judgment, with interest, and the plaintiff's costs of the supplementary proceedings, and of the application to punish the contempt ; and the defendant was committed imtil the fine was paid. 3 Sand. S. C. R. 676 ; and see 10 Paige, 607 ; 2 Denio, 570 ; 1 Kernan, 62 ; 37 Barb. 610. But the actual losses intended by the statute, are those which are pecuniary in their nature, and capable of being estimated as such, with reasonable certainty ; and where there is no evidence that an actual loss has been sustained, the relator is entitled only to his costs and expenses. 1 Duer, 512 ; and see 4 Paige, 1 64 ; Id. 456. Under the authority to inflict a fine sufficient to indemnify the party aggrieved, and to satisfy his costs and expenses, the court may allow reasonable counsel fees to such party. Such fees form a part of the expenses to which the party prosecuting the attach- men is justly entitled. 4 Duer, 148. If no actual loss has been produced to the relator, the next and necessary inquiry is ia respect to the nature of the miscon- duct alleged — ^in other words, was it the result of pardonable ignorance or inadvertence, or was it willful and intentional ? 1 Duer, 512, supra. After reviewing the authorities bearing upon the question of the punishment to be infficted for disobedience of an order of the court, Mr. Justice Eosworth, in the case cited, alluding to those authorities, remarks, " They seem to show a uniform understanding of the statute, that the disobedience of an order may not have been willful ; that it may have arisen from an honest misapprehension, by the offending party, of the nature of the act which he did ; and may have occurred in good faith, and in the belief that it was not disobedience. That, ia such a case, if actual loss results from the disobedience, the court has no discretion which wiU absolve it fi-om imposing a fine which will indemnify the injured party for the loss. That, in such a case, no fine should be imposed, pr imprisonment ordered, purely and solely as a punishment, beyond the punishment that may result from the imposition of a fine sufficient to indemnify against the actual loss, and to satisfy the expenses of the pro- 204 CONTEMPTS. [CH. VII. ceedings. That the disobedience may also hare been willful and designedly contemptuous ; and in such case the contempt is criminal ; and may be punished, according to the.aggravation of the case." Ih. 526. And it was held, therefore, in that case, that where the misconduct is shown to be willful, the court has the power, and is boimd, to punish it as a " criminal contempt." And in such case, although no actual loss to the relator is shown, the court may impose a fine not exceeding two hundred and fifty doUars, and imprison the accused for a term not exceeding six months, for no other purpose than that of punishment. Ih. Where it appears on the motion for an attachment that the plaintiff was not entitled to the injunction for want of equity in his complaint, the defendant having made a cross-motion to dis- solve it, the injunction will be dissolved ; and if it appears that the defendant is in contempt for disobedience of the injunction^ he wiU be required only to pay the expenses of the application for the attachment, as the plaintiff, not being entitled to the in- junction, can suffer no legal damages for its violation. 22 Hmo. 330, 8. c. 13 Abh. 320. The court cannot control the effect of a commitment ; as, by directing the defendant to be denied the jail liberties, where he is entitled to them by law. So held, where the relator moved for an attachment against an attorney for the non-payment of costs, and that the jail liberties be denied to him until the costs were paid. 2 Cowen, 589. The costs in that case, being the costs of an action which the attorney had commenced without being retained for that purpose, the commitment was in the usual form; but the court made an order that the attorney pay the costs within ten days after notice of the rule, or be suspended from all practice as an attorney until the costs were paid. Ih. A similar order was also made in a case where a solicitor collected money for his client, which he refused to pay over. 5 Paige, 311. The payment, and acceptance by the relator, of a fine imposed for an actual loss or injury produced to him, is made, by the statute, an absolute bar to any action by him to recover damages for such injury or loss. 2 Bev. Stat. 538, seo. 21 ; 4 Dtier, 148. To what extent the defendants misconduct may he exoiised.'] In determining the punishment to be inflicted upon a party, a statement, in general terms, that the party acted under the advice CH. VII.] CONTEMPTS. 205 of counsel, will not be accepted by the court in excuse or pallia- tion of the defendant's misconduct. But to enable the court to regard such advice, the defendant should state the name of hia counsel, the information which was laid before him, and the ex- act import of the advice given ; and if the advice was written, the writing should be produced, or if not, it should be verified by the affidavit of the counsel who gave it. 1 Duer, 513. And where the party enjoined has acted in good faith, under advice of coun- sel, the violation wiU be excused on terms. 18 All. 420 ; 5 Bosw. 710. Such advice, however, will not be regarded at all, so far as the rights of the relator are concerned. 4 Paige, 163 ; Id. 450 ; 7 Id. 364; and see 3 Sand. 8. C. B. 662. I^or is it any answer to the violation of an injunction order that the defendant believed the court had no jurisdiction to make the order ; and such belief, even, famishes a very slight, if any, excuse for his disobedience. 1 Diter, 513, swpra. Nor that it was erroneously and improperly allowed, 4 Paige, 444 ; and see 2 Id. 326 ; 3 Id. 253 ; 7 All. 204 ; though the court, in deter- mining the extent of the punishment to be inflicted, in such case, will take into consideration the fact that the injunction was im- properly granted, and was without sufficient equity to sustain it. Id. ibid. / 22 How. 330. But if the injunction or order which is disobeyed, was issued without jurisdiction, this is a defence to proceedings for a violation of it. 13 Peters, 511 ; 1 Duer, 451 ; 5 Seld. 263, 266 ; 10 All. 62. Nor is it any answer or defence to the violation of an injunc- tion issued upon a judgment creditor's biU, that the defendant was afterwards discharged from his debts under the bankrupt law ; so held, where the defendant had rendered himself liable to a conviction for a criminal contempt, for the violation of the injunction, and after his discharge under the bankrupt act, was prosecuted for the contempt. 2 Denio, 570 ; and see 10 Paige, 284. Nor is it any defence to the attachment that the injunction was violated under the direction of a third party, who, since the service of the injunction, has become entitled to do the act com- plained of 4 Row. 225. Where, in proceedings supplementary to execution, a judg ment debtor, upon being arrested under an attachment, at once submits himself to an examination, the court will ordinarily ac 206 COHTEMPTS. [CH. VII. cept his excuse, and discharge him from arrest ; though this will Dot be done where he puts the pursuing creditor to expense ia prosecuting the attachment, and raises all objections possible. 18 Ahb. 245. "Where the party proceeded against was a member of the Metropolitan Police of the city of Hiew York, and acted under the positive orders of one of the police commissioners, suppos- ing it was his duty to obey such orders ; it was held proper, under the circumstances, to relieve him from punishment. 16 Sow. 303. Order and process of commitment.'] The statute provides that when the misconduct of which the defendant is convicted, con- sists in the omission to perform some act or duty which it is yet in his power to perform, the order and process of commitment must specify the act or duty to be performed, and the amount of the fine and expenses to be paid. 2 Bev. Stat. 538, sees. 23, 24. In all other cases, if imprisonment is ordered, the order and process of commitment must express the duration of such impris- onment, li. sec. 25. The defendant may be committed either by a rule or order of commitment, or by process, at the election of the relator. 1 Bill, 164. The term " process," above mentioned, includes a rule or order of commitment. Ih. The rule for commitment should show the cause of commit- ment. It is enough, however, that the cause be substantially stated, and without technical precision. lb. And where the rule mentioned a previous order to pay money, which the defendant had not complied with, it was held that the rule sufficiently showed that the cause of commitment was for a contempt. Tb. Nor is it necessary that the sum for the non-payment of which a commitment is ordered, should be named in the order ; but it may be ascertained by a reference, and the referee's report, when perfected, though made after the order, is to be regarded as a part of it. lb. For form of commitment for the non-pay- ment of money, see Appendix, No. 104; and for form in pro- ceedings before a judge in proceedings supplementary to execu- tion, see Appendix, No. 117. And so, the process of commitment need not recite all the facts and proceedings necessary to confer jurisdiction ; but it is CH. VII.] CONTEMPTS. 207 sufficient, if, upon its face, it appears that the court had jurisdic- tion, states in substance the cause of commitment, and specifies the act or duty to be performed, and the expenses to be paid. So held, where an order was made in a surrogate's court, direct- ing a guardian to pay moneys in his possession to another guar- dian appointed in his place, and the guardian neglected to make such payment; and was thereupon proceeded against as for a contempt. 1 Kernan, 324 ; 10 Barb. 524 ; and see 13 Abb. 129 ; 19 How. 475. Where a witness is proceeded against for refusing to answer a question put to him, it was held necessary for the commitment to show on its face that the court or body propounding the ques- tion was properly organized ; and, also, that some action or matter was pending before such court or body in relation to which the witness was sworn ; and that the court or body had jurisdiction of the subject matter. 21 Mow. 103. For form, see A^endix, ISTo. 126. In a case where an attachment was issued against the defend- ants for interfering with personal property in the possession of a receiver, it was held by Chancellor "Walworth, before whom the proceedings were brought, by appeal, that the order of commit- ment, in cases of that description, should recite the substance of the alleged misconduct, the adjudication of the court that the defendants were guilty tliereof, and that such misconduct was calculated to and did impair, defeat, impede, and prejudice the rights or the remedies of the prosecutor, or the parties to the action ; and should direct the payment of a fine sufficient to indemnify the party injured, and to satisfy the costs and expenses of the proceeding. And that if anything remains to be done by the defendants, the order should also specify particularly what they are to do, and the manner in which it is to be done, to entitle them to be discharged upon the payment of the fine imposed. 9 Paige, 372 ; and see 2 Id. 103. The order of commitment should also direct to whom the fine is to be paid, or what is to be done with the money when paid. Id. ibid. ; and see 2 Denio, 670. The order should not direct the defendant to pay the costs of the proceedings to be taxed ; but the costs should be taxed, and inserted in the order as a part of the fine to be imposed. 9 Paige, 373 ; and see 2 Id. 104. And a reference to ascertain the 208 CONTEMPTa • [CH VII. costs and expenses of the proceedings may be ordered, in the dis- cretion of the court. /Sfee 1 Duer, 546, note. Where there are two or more defendants, the court may, in the imposition of the fines, charge an equal proportion of the whole costs and expenses upon each defendant. For forms of order or judgment of commitment, see Ajypendix, Nos. 124, 125. Where defendant to be confined.l^ If the defendant is com- mitted to prison upon a conviction for a contempt, it is the duty of the sheriff to keep the defendant in that part of the building appropriated for the purposes of a prison, and in the same man- ner as he is required by law to keep a person charged with a criminal offense. And it would be an escape to permit the defendant to go at large in the sitting-room occupied by the sheriff's family, although such room is a part of the building which contains the jail. 10 Paige, 606 ; 4 Id. 282. If the defendant is committed for the non-payment of costs, or other sum of money, he is entitled to the jail liberties, 2 Beo. Stat. 433, sec. 40; 4 Paige, 282; 3 Id. 39Y; otherwise, however, where he is committed for the non-payment of a fine, or of costs in the nature of a fine, imposed upon him. Id. ibid. ; 10 Paige, supra. And the court cannot deny the jail liberties to a party who is entitled to them by law. So held, where the relator moved for an attachment against an attorney for the non-payment of costs, and that the jail liberties be denied to him imtil the costs were paid. 2 Cowen, 589. Effect of contempt im, respect to applications for favors, y receiver. \ The receiver, as we have seen, is subject to the control of the Supreme Court, and may be com- pelled to account at any time. He may, also, be removed by the court, and any vacancy created by such removal, by death, or otherwise, may be supplied by the court. 2 Rev. Sat. 4Y2, sec. 85, supra. It is not necessary that the receiver should, before making his report, distribute all the moneys in his hands among the creditors. 6 Abh. 386 ; 8 Id. 192 ; 18 If. York, 200. The statute, as we have seen, requires the receiver within three months after the time required for making a second dividend, to render a full and accurate account of all his proceedings to the court, on oath. 2 Rev. Stat. 472, sec. 86, supra. Notice of the intention to present the same must be published as required by the statute. lb. sec. 87, supra. The account of the receiver, verified by his oath, will be pre- sented at the time and place specified, and an order of reference moved for thereon to a referee to hear and examine the proofs, vouchers, and documents offered for or against the account, and to report thereon faUy to the court. Ih. and 11. sec. 88, supra. The referee should make his report thereon, which will be Bimilar in point of form, to that made in ordinary cases of ac- 230 CORPORATIONS — PROCEEDINGS BY AND AGAINST. [CH. VIII. counting. The voucliers should be annexed to and form a part of the report. Notice for the usual time, &e., should be given to all the parties who have appeared on the accounting, of the confirmation of the report ; which report should be filed with the clerk of the county in which the proceedings are taken. Upon the coming in of the report the court is required to hear the allegations of all concerned therein, and shall allow or disallow such account, and decree the same to be final and con- clusive upon all the creditors of the corporation, upon all persons who have claims against it, upon any open or subsisting engage- ment, and upon all the stockholders of the corporation. 2 Rev. Stat. 472, seo. 89. The receiver is also required to account from time to time, in the same manner and with the like effect, for all moneys which shall come to his hands, after the rendering of such account, and for all moneys which shall have been retained by him for any of the purposes specified by the statute, and to pay into court aU unclaimed dividends. li. The order upon any such accounting may be appealed from, by either party, in the same manner as other orders of the court. Ih. seo. 90 ; Laws of 1854:,^. 592. Discharge of proceedings.] The court may, on payment of the petitioner's claim and the costs, order the proceedings to be discontinued, and- the receiver to be discharged ; provided that there is no evidence to show that any other creditor has sought to avail himself of the benefits of the proceeding. Although the petitioner by his proceedings obtains no priority over other cred- itors, yet if a voluntary payment is made, there is no ground for further proceedings against the company. The distribution among all the creditors is only to be upon a final decree in the action {sec. 37); and if no final decree is made in consequence of the discontinuance of the action, the provision is inoperative. 19 How. 48, 50, per Ingraham, J. Staying proceedings at law.] The statute provides that when- ever any action shall be commenced, or any application made against any corporation, its directors, or other superintending ofiicers, or its stockholders, according to the provisions of the CH. VIII.] COEPOBATIONS — PROCEEDINGS BY AND AGAINST. 231 statute, the court may by injunction, on the application of either party, and at any stage of liie proceedings, restrain all proceed- ings at law, by any creditor, against the defendants in such suit ; and whenever it shall appear necessary or proper, may order notice to be published, in such manner as the court shall direct, requiring all the creditors of such corporation to exhibit their claims and become parties to the suit within a reasonable time, not less than six months from the first publication of such order, and in default thereof to be precluded from all benefit of the de- cree which shall be made in such suit, and from any distribution which shall be made under such decree. 2 H&u. Stat. 466, sec. 56. SECTION n. PEOOBBDraGS ASAINST DIEEOTOBS OE MANA8BES OP A COEPOEATIOlf TO COMPEL TH3 EXECUTION, OE EBSTEADI TH* ABUSE OF THE COEPOEATE POWEBS. The remedy to compel the execution, or restrain the abuse of the corporate powers may be found in article second, title fourth, chapter eight, of part third of the Revised Statutes. 2 Rev. Stat. 462. Jurisdiction, of the court.^ The Supreme Court, by the stat- ute, has jurisdiction over directors, managers, and other trustees and officers of corporations : 1. To compel them to account for their official conduct in the management and disposition of the funds and property commit- ted to their charge ; 2. To decree and compel payment by them, to the corpora- tion whom they represent, and to its creditors, of all sums of money, and of the value of all property which they may have ac- quired to themselves or transferred to others, or may have lost or wasted by any violation of their duties as such trustees ; 3. To suspend any such trustee or officer from exercising his office, whenever it shall appear that he has abused his trust ; Vol. L— 18 232 CORPORATIONS — PROCEKDINGS BT AND AGAINST. [CH. VIIL i. To remove any sucli trustee or officer from his office, upon proof or conviction of gross misconduct ; 6. To direct new elections to be held by the body or board duly authorized for that purpose, to supply vacancies created by such removal ; 6. In case there be no such body or board, or all the mem- bers of such board be removed, then to report the same to the governor, who shall be authorized, with the consent of the Senate, to fill such vacancies ; 7. To set aside all alienations of property made by the tmstees or other officers of any corporation, contrary to the provisions of law, or for purposes foreign to the lawful business and objects of such corporation, in cases where the person receiving such alienation knew the purpose for which .the same was made ; and, 8. To restrain and prevent any such alienation in cases where it may be threatened, or there may be good reason to apprehend it wHl be made. 2- Hev. Stat. 462, sec. 33. The statute further provides, that when any of the visitorial powers enumerated in the last section, over any corporation, are or shall be vested by statute in any corporate body or public offi- cer, the provisions of that section shall not be construed to divest or impair the powers so vested. Ih. sec. 34. Sow, and hy whom py'oceeddngs instituted.'] The proceedings may be commenced by action under the Code, or by petition. The statute provides, that the jurisdiction conferred by the pre- ceding thirty-third section, shall be exercised as in ordinary cases on bill or petition, as the case may require, or the Supreme Court may direct, at the instance of the attorney-general prosecuting in behalf of the people of this State, or at the instance of any creditor of such corporation, or at the instance of any director, trustee, or other officer of such corporation, having a general superintendence of its concerns. 2 Eev. Stat. 463, see. 35 ;• 12 Barb. 341. The proceeding cannot be instituted by a stockholder, but the application must be made at the instance of the attorney-general, or of a creditor of the corporation, or of a director, trustee, or other officer having a general superintendence of its concerns. 43 Barb. 504; 2 Bev. Stat. 463, sec. 35, supra. OH. Vin.J CORPORATIONS— PROCEEDINGS BY AND AGAINST. 233 Petition and notice.] The petition Btould set forth the facts which give jurisdiction to the court ; and also, the circumstances showing the neglect or breach of duty complained of, bringing the case clearly within one of the eight subdivisions of the section above quoted ; and it should pray for the relief appropriate to the case, either by way of suspending or removing the delinquent trustee, or of setting aside his acts, or restraining them, &c., as the case may be. It should, also, be verified by the petitioner ; and, if not verified on personal knowledge, should have an affi- davit annexed, of one who can speak affirmatively, and from per- sonal knowledge of the facts. 2 Van Sant. Pr. 443. Notice of the presentation of the petition should be duly served, or an order to show cause obtained. Hearing and order.] Upon the hearing the court may pro- ceed in a summary way, and grant the appropriate order. But if the matters alleged in the petition and moving affida- vits are contradicted, or avoided, the court will order a reference as in other cases. And if the exigency of the case demands it, the court may grant a temporary injunction, reserving further directions imtil the coming in of the referee's report. Upon the coming in of the referee's report, the same should be filed, and a note of the day of the filing entered by the clerk in the proper book, under the title of the proceeding,' and the report will become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing the same. Swp. Court Rules., No. 32. If exceptions are filed and served within the time above mentioned, the same may be brought to a hearing at any special term thereafter, on the notice of any party interested therein. Ih. 234 COEPOEATIONS— PBOCEEDrNGS BY AND AGAINST. [CH. VIIL SECTIOIf m. PEOCEEBINGS AGAINST INSOLTENT BANKDia OB mSUBAlTOB COBPOEATIONS FOE AS INJUlfOTlON AND EEOEITEE, AKD TO OOMFBL THE DISSOLUTION THEEEOF. The remedy considered xmder this seetion is also a part of article second, title fourtli, chapter eighth, of part third of the Eevised Statutes; which article is entitled, "Of proceedings against corporations in equity." 2 Bev. Stat. 462. The court will not exercise any jurisdiction over corporate bodies for the purpose of restraining their operations, or of wind- ing up their concerns, except when the same is authorized by the statute, and the case is fairly brought within its scope and ob- ject. 1 Mw. Ch. i?. 84; 3 Id. 127. When corporation will ie restrained.'] The statute provides that whenever any corporation having banking powers, or having the power to make loans on pledges or deposits (a), or author- ized by law to make insurances, shall.become insolvent or un- able to pay its debts, or shall have violated any of the pro- visions of its act or acts of incorporation, or of any other act binding on such corporation, the Supreme Court may, by injunc- tion, restrain such corporation and its officers from exercising any of its corporate rights, privileges, or franchises, and from col- lecting or receiving any debts or demands, and from paying out, or in any way transferring or delivering to any person any of the moneys, property, or effects of such corporation, until the court shall otherwise order. 2 Hev. Stat. 463, sec. 39. This statutory provision was incorporated into the Eevised (a) The Revised Statutes are superseded, in part, it seems, by the act of April 5, 1849, {Laws o/1849, p. 340, amended Laws 1855, p. 101, Laws 1859, p. 880). That act is emitled, " An act to enforce the responsibility of stockholders in certain bank- ing corporations and associations, as prescribed by the Constitution, and to provide for the prompt payments of demands against such corporations and associations." In all cases in which the act of 1849 is applicable, it is supposed to have superseded the provisions of the Revised Statutes. Accordingly, it has been held that no cred- itor, or stockholder, of a bank, who may have relief under that act, can have it under the Revised Statutes. 26 Barb. 307, 309, per Roosevelt, J., s. c. 5 Abb. 338, and note on p. 343 ; and see 15 Sow. 448 to 451, per W. P. Allen, J. CH. Vin,] COEPOEATIOXS — PROCEEDINGS BY AND AGAINST. 235 Statutes from the act of 1825, {p. 450, sec. 17,) to prevent fraudu- lent bankruptcies, and was designed to provide a mode for the campulsory dissolution of a moneyed or insurance corporation, ■which has become insolvent, or has violated its act of incorpo- ration. 2 Van Sunt. Pr. 437. It is discretionary on the part of the court, it seems, to grant an injunction or not, under the above section. That discretion, however, is controlled by legal rules ; and the injunction should never be granted in the case of a bank, if it is clearly solvent, 5 Abb. 343, note; nor where a bank has suspended specie pay- ment, if the suspension is general. 75. and p. 338, a. c. 26 Barb. 304 ; and see 15 How. 446. Surrender of corporate rights.] The statute provides that whenever any incorporate company shall have remained insol- vent for one wliole year ; or for one year shall have neglected or refused to pay and discharge its notes or other evidences of debt ; or for one year shall have suspended the ordinary and lawful business of such corporation ; it shall be deemed to have surren- dered the rights, privileges, and franchises granted by any act of incorporation, or acquired under the laws of the State, and shall be adjudged to be dissolved. 2 Bev. Stat. 463, sec. 38 ; 4 How. 166 ; 7 Paige, 294. A corporation, by non-user and the suspension of its ordinary business, or by continued insolvency, or the non-payment of its notes, and other evidences of debt, for one whole year, does not become ipso facto dissolved. But the corporation continues to exist until it is judicially declared to be dissolved by the judgment of the Supreme Court. 11 Paige, 118. Until then, any of its creditors may proceed by suit against it or its property, to obtain satisfaction of their debts ; unless restrained by injunction. 11. This statutory provision applies to corporations which are not moneyed, as well as to those which are. lb. The provision is cumulative, and not a limitation upon the common law rule previously existing in this State. 17 iV". YorTc, 93. In order, however, to infer a surrender of corporate fran- chises from insolvency, suspension of business, &c., for less than a year, the cfrcumstances must be such as to show that the cor- poration has lost all power to continue or to resume its business. Accordingly, it was held that a manufacturing corporation. 236 COEPOfiATIONS — PEOCEEDESTGS BY AND AGAINST. [CH. VIII. which, having become actually insolvent, had suspended its busi- ness for less than a year under a resolution to wind up its affairs, was not thereby dissolved, the corporation having buildings, ma- chinery, stock, and assets, by which it might have carried on its business. Ih. But where a corporation, whose ordinary business it was to make fire and marine insurances, and to lend money on bottom- ry and respondentia, resolved to cease making insurances, to cancel outstanding policies, and to liquidate, as soon as possible, all liabilities ; and for more than a year, it had issued no new policy, made no loan on bottomry, or respondentia, taken no new risk, except to fulfill , stipulations to that effect in open pol- icies, outstanding when the resolution was adopted, and during the year' only six risks were outstanding ; it was held that the corporation had suspended its ordinary and lawful business for one year, and must be adjudged to be dissolved ; although its corporate organization had been regularly kept up until the time of the application. 4 Sand. Gh. B. 559; and see 7 Paige, 294. Under the provisions of the statute, a suspension of one year will be deemed insolvency in itself; and in the latter case, the creditor or stockholder, without showing anything "further, may proceed at once to have the dissolution judicially declared, and to wind up the affairs. 11 Paige, 438. Who may apply for injunction.] The statute provides that the injunction may be issued on the application of the attorney- general, in behalf of this State, or of any creditor or stockholder of the coi-poration, upon action commenced, or petition filed for that purpose, and upon due proof of any of the facts required by the 39th section, to authorize the issuing of the same. 2 Bev. Stat. 464, sec. 40. The makers of premium notes, given upon insurance in a mu- tual insurance company, are not stockholders of the company. Nor are they such creditors of the company, for any compensa- tion which ought to have been, but has not been, awarded to them, in respect of such notes, as to enable them to proceed as creditors under the statute. 4 Sand. Ch. B. 5TT. Petition, and what it must contain; affidavit^ cfec.j The pro- CH. Vni.] COEPOBATIONS— PROCEEDINGS BY AND AGAINST. 237 ceedings may be instituted either by bill, i. e., by action undei the Code, or by petition. 2 Rev. Stat. 464, sec. 40. The petition should show upon its face a state of facts, which, if not contradicted or avoided, will authorize the court to interfere by granting the relief asked for ; and in case of actual insolvency, to proceed to wind up the affairs of the company by decreeing a dissolution, and appointing a receiver. As the petition is the foundation of all the subsequent pro- ceedings, it should contain every fact necessary to give the court jurisdictiou. See 23 Barb. 591, 599. There should be annexed to the petition, so as to form a part of the papers upon which the injunction is asked, one or more affidavits showing that the corporation has bank^pg powers, or the power to make loans on pledges or deposits, or that it is authorized by law to make insurances, and that it has becoine insolvent, or unable to pay its debts ; or that it has violated any of the provisions of its act or acts of incorporation, or of any other act binding on the corporation. 2 Rev. Stat. 464, sees. 39, 40. And an affidavit " upon information and belief," that a bank is insolvent, is not evidence sufficient to authorize an injunction ; particularly when contradicted by regular official reports of the bank, made under oath. 26 Barb. 304, s. c. 5 Abh. 338. Notice and application to the court.'] A copy of the petition and affidavits, with a notice of the time and place of the presen- tation of the same, should be served upon the president or other proper officer of the corporation or an order to show cause may be obtained and served in the usual manner. And the court will not proceed under the statute, except to grant an order to show cause, without notice to the corporation. The proceedings upon the presentation of the petition will be similar to those taken upon the petition by a judgment creditor of a corporation, after execution returned unsatisfied. If there is no opposition, the relief prayed for in the petition will be granted as of course ; but if it is opposed, and the facts are controverted, a reference will be ordered, as in other cases ; and, in the mean- time, if necessary to protect the property and prevent its improp- er alienation, an injunction and receiver wiU be allowed, provi- sionally, reserving the final decision of the court until the coming 238 COEPORATIONS — PEOCEEDINGS BY AND AGAINST. [CH. VIIL in of the report of tlie referee, as in case of proceedings by judg- ment creditors. 2 Van Sant. Pr. 439. If a reference has been ordered upon the coming in of the ref- eree's report, the same should be filed, and a note of the day of the filing entered by the clerk inthe proper book under the title of the proceeding, and the report will become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing the same. And if exceptions are filed and served within that time, the same may be brought to a hearing at any special term there- after, on the notice of any party interested therein, ^wp. Court Bvles, No. 32. The application should be made to the Supreme Co art ; and the Superior Court of the city of New York has no jurisdiction in the proceeding. 2 Duer, 632. Seceiver, and his proceedings.] The statute provides that upon the application being made, and in any stage of the pro- ceedings thereupon, the court may appoint one or more receiv- ers to take charge of the property and efiects of the corporation, and to collect, sue for, and recover the debts and demands that may be due, and the property that may belong to the corpora- tion, who shall in all respects be subject to the control of the court. 2 E&o. Stat. 464, sec. 41. In respect to the powers and duties of receivers, the statute provides, that the receiver shall possess all the power and author- ity conferred, and be subject to all the obligations and duties im- posed in article three of title four, of chapter eight, of part third of the Eevised Statutes, upon receivers appointed in case of the voluntary dissolution of a corporation. Ih. sec. 42, as amended 1858, p. 592. The provisions of the article referred to are stated in fall in the first section of this chapter {ante, p. 222). In addition, it is the duty of the receiver to keep an account of all moneys received by him, and on the first days of January, April, July and October, in each and every year, to make and file a written statement, verified by his oath that such statement is correct and true, showing the amount of money received by the receiver, his agents, or attorneys, the amount he has a right to retain under the provisions of the statute, and the items for which he claims to retain the same, and the distributive share due CH. VIII.] COEPOBATIONS — PROCEEDINGS BY AND AGAINST. 239 each person interested therein. He is required, also, to pay sncli distributive share to the person or persons entitled thereto, on demand, at any time after such statement. Such account, state- ment, and all the books and papers of the corporation in the hands of the receiver, shall at all reasonable times be open for the inspection of all persons having an interest therein. And, in case of neglect or refusal to comply with either of the above requirements, or any duty imposed upon him by the statute, the Supreme Court, at either a general or special term, shall, on the application of the party aggrieved, unless such neglect or refusal shall be satisfactorily explained to the court, forthwith remove such receiver, and appoint some suitable person as receiver in his place. Such removal shall not vitiate or annul any legal pro- ceedings had by such receiver; but such proceedings shall be continued by such successor as if no removal had been made. Such receiver shall also be liable to pay to the party interested, interest at the rate often per cent, per annum on all moneys due to such party and retained by him more than one day after such demand made as aforesaid. 2 Rev. Stat. 464, sec. 42, as ame7ided, Laws of 1858, jp. 592. In case the corporation in regard to which the receiver is appointed, is a mutual insurance company, such receiver has full power under the authority and sanction of the court appointing him, to make all such assessments on the premium notes belong- ing to the corporation as may be necessary to pay the debts of the corporation, as by the charter thereof the directors of the corporation have authority to make; and the notice of such assessment may be given in the same manner as is provided in the charter of the company for the directors of the company to give; and the receiver shall have the like rights and remedies upon and in consequence of the non-payment of the assessment, as are given to the corporation or the directors thereof by the charter of the corporation. Lams of 1852, p. 67, sec. 2 ; 12 Barb. 671 ; 25 Ld. 110; 18 New York, 592. But no action can be sustained by the receiver upon a premium note, except for the purpose of paying for losses or expenses actually accrued while the note was in force, nor until after assessment has been made. 23 Barb. 656. The statute further provides that the receiver in mutual in- surance cases may receive a voluntary surrender of all policies 240 C0BP0RATI0N3 — PEOCEEDIlirGS BY AND AGAINST. [CH. VIH. issued by the corporation, or may cancel the policies issued by the corporation, in all cases where by the charter of the corpora- tion the directors thereof are authorized to receive the surrender of, or to cancel the policies issued by the corporation. La/ws of 1852, J?. 67, sec. 3. The court appointing the receiver is authorized, upon a proper action, instituted for that purpose by the receiver, to examine by a reference or otherwise, as it may deem proper, into the pro- ceedings and acts of the corporation ; and if it shall appear upon such examination, that the directors or oflBcers of the corporation, or either or any of them, have in any manner misapplied, or im- properly disposed of the funds, property, or effects of the corpo- ration, the court may decree that the directors or officers of the corporation, as shall have been guilty of the misapplication or improper disposition of such funds, property, and effects, to pay the same to such receiver, and to enforce such decree by such process as may be necessary to accomplish that object. Ih. sec. 4. In respect to mutual insurance companies, the statute fur- ther authorizes the receiver, in case of a controversy in the settle- ment of any demand or claim against any member or stockholder of the company, or other person, to consent to a reference of such controversy ; and special provisions are made in respect to the proceedings before the referee, and the costs of the proceedings. See Laws of 1862, p. 743 ; 24 How. 487. In respect to receivers of the property, &c., of banking corpo- rations, the statute provides that such receivers may, from time to time, make dividends of the moneys in their hands among the creditors of such corporations, until the payment of such cred- itors in full ; and no dividends shall be made to the stockholders ' of such corporations until after the final dividend to the cred- itors. Laws of 1844, p. 370. Such receivers are subject to the direction and control of the Supreme Court, as to the time of making dividends both to the creditors and stockholders of such corporations, and as to the time of closing up the concerns of such corporations, and rendering their final account. Tb. sec. 2. It is further provided in reference to receivers of savings banks, that the receiver or receivers of any savings bank or insti- tution for savings, now or hereafter appointed in pursuance of section forty-one of article two of title four of chapter eight of the third part of the Eevised Statutes, shall, after having complied CH. rni.] COEPORATIONS— PROCEEDINGS BY AND AGAINST. 241 with all the provisions of said title, froBd the section aforesaid to and including section seventy-eight of said title, distribute the residue of the moneys in their hands among all the creditors of said savings bank, or institution for savings, whose debts shall have been ascertained from an examination of the books of account which shall have been kept by such savings bank or institution for savings, or otherwise, in the order prescribed by section seventy-nine of said title, whether such creditors shall then have exhibited their claims or not. Lavis of 1855, jp. 612. Keceivers of moneyed institutions are entitled to the same commissions and compensation for their services as are now allowed by law to executors and administrators, and no greater or other commissions or compensation than is hereby allowed shall be received or retained by them. Laws of 1842, f. 4 ; and see 2 Rev. Stat. 4Y0 ; 6 Paige, 211; 12 Barb. 671. See further in reference to the powers and duties of receivers in proceedings under this section, ante, p. 222. Distribution of property of corporation?^ The statute pro- vides, that upon a final decree being made upon any such ap- plication to restrain a corporation, or upon any such action com- menced against directors or stockholders, the court shall cause a just and fair distribution of the property of the corporation, and of the proceeds thereof, to be made among its fair and honest creditors, in the order and in the proportions prescribed by the statute in the case of a voluntary dissolution of a corporation, in respect to which see in next following section. 2 Rev. Stat. 465, sec. 48. 242 OOErOBATIONS — PROCEEDINGS BY AND AGAINST. [CH. VIII. SECTION lY. PBOCEEDINGS ON BKHAIF OF THE DIEECTOES, AC, OP A OORPORATIOir, POE A TOLUMTABT DISSOLUTION OF THE COEPOKATION. The remedy authorizing proceedings on behalf of the direct- ors, &c., of a corporation for a voluntary dissolution of the cor- poration, may be found in article third, title fourth, chapter eight of part third of the Eevised Statutes, and is entitled " Of the voluntary dissolution of corporations." 2 Bev. Stat. 467. By the provisions of the statute, the article does not extend to any incorporated library society, or to any religious corporation, or to any select school or academy, incorporated by the regents of the university, or by the legislature. Ih. 472, sec. 91. In what cases proceedings may he commenced.'] The statute provides that whenever the directors, trustees, or other officers having the management of the concerns of any corporation, or the majority of them, shall discover that the stock, proJ)erty, and effects of the corporation have been so far reduced by losses or otherwise, that it will not be able to pay aU just demands to which it may be liable, or to afford a reasonable security to those who may deal with such corporation ; or whenever such direct- ors, trustees, or officers, or a majority of them, shall, for any rea- son, deem it beneficial to the interest of the stockholders, that the corporation should be dissolved, they may apply to the Supreme Court by petition for a decree dissolving such corporation, pursu- ant to the provisions of the statute. 2 Eev. Stat. 467, sec. 58. And a corporation cannot be dissolved by a mere resolution of its members or stockholders ; but only by a judicial sentence, or by a surrender of its charter accepted by the State. 4 Diier 362. The court will not decree a dissolution of the corporation simply because a majority of the directors and stockholders re- quest it to be done ; though where the owners of a large proportion of the stock find it for their interest to withdraw their capital, it wm be deemed presumptive evidence that the interest of the CH. Vni.] CORPOBATIONS — PEOCEEDDTGS BY AND AGAINST. 243 stockholders generally will be promoted by a dissolution of the corporation. 1 Paige, 258. Petition, affidavit, inventory, c§c.] The statute authorizes the proceedings to be instituted by petition, (2 Bev. Stat. 467, sec. 58,) though no doubt an action under the Code of Procedure would also be a proper form of remedy. 2 Van Sant. Pr. 431. In respect to the contents and form of the petition, the stat- ute provides that the application shall contain a statement of the reasons which induce the applicants to desire a dissolution of the corporation, and that there shall be annexed thereto : 1. A full, just, and true inventory of all the estate, both real and personal, in law and equity, of such corporation, and of all the books, vouchers, and securities relating thereto ; 2. A fiill, just, and true account of the capital stock of such corporation, specifying the names of the stockholders, their residence, when known, the number of shares belonging to each ; the amount paid in upon such shares respectively, and the amount still due thereon ; 3. A statement of all the incumbrances on the property of such corporation by judgment, mortgage, pledge, or otherwise ; 4. A full and true account of all the creditors of snch corpo- ration, and of all engagements entered into by such corporation, which may not have been fiilly satisfied or cancelled ; specifying the place of residence of each creditor, and of every person to whom such engagements were made, if known, and if not known, the fact to be so stated ; the sum owing to each creditor ; the nature of each debt or demand ; and the true cause and considera- tion of such indebtedness in eash case. 2 Rev. Stat. 467, see. 59. To every such petition, there shall also be annexed an affidavit of the applicants, that the facts stated in such application, and the accounts, inventories, and statements contained therein, or annexed thereto, are just and true, so far as such applicants re- spectively know, or have the means of knowing. lb. sec. 60. The petition, inventory, &c., should be carefuUy prepared ; and all the provisions of the statute fuUy complied with. 15 Eow. 7, s. c. 6 Abb. 386, note. Order to show cause.'] The statute provides that upon such petition, accounts, inventories, and affidavit being filed, an order 244 CORPOEATIONS — PEOCEEDINGS BY AJSID AGAINST. [CH. VIII. shall be entered, requiring all persons interested in the corpora- tion to show cause, if any they have, why such coi'poration sliould not be dissolved, before some referee to be named in such order, at some time and place therein to be specified, not less than three months from the date thereof. 2 Rev. -Stat. 468, sec. 61. The application for this order should be made at special term, and is ex-parte. Notice of order. '\ The statute requires notice of the contents of the order to be published, once in each week, for three weeks successively, in the State paper, and in a newspaper published in the county where the principal place of conducting the business of the corporation shall be situated. 2 Rev. Stat. 468, sec. 62 ; 16 Eow. 7, 8, s. c. 6 Abb. 386, note. Proceedings before referee^ On the day appointed in the order to show cause, the referee is required to proceed to hear the allegations and proofs of the parties, and to take testimony in relation thereto, and with all convenient speed to report the same to the court, with a statement of the property, eflfects, debts, credits, and engagements of the corporation, and of all other mat- ters and things pertaining to the affairs of the corporation. 2 Rev. Stat. 468, sec. 63. ' The party instituting the proceedings should furnish to the referee due proof of the publication of the notice of the contents of the order to show cause, for the length of time required by the statute, and in the proper papers. And the referee is entitled to the use of the original petition and schedules annexed thereto, if he require the same, by an order on the clerk or officer of the court with whom they may be deposited; which papers he' must return with his report. ' lb. sec. 64. Any party interested in the closing up of the affairs of the corporation is entitled to appear and be heard on the application, as well as on the hearing before the referee. Not only the direct- ors, tnistees, &e., but stockholders of insolvent corporations, who are personally liable, and creditors are parties in interest. 8 Paige, 387. The referee's report should show that due proof of publica- tion was furnished to the referee ; and the report should be filed with the clerk of the county where the proceedings are insti- CH. VIII.] CORPORATIONS — PROCEEDINGS BY AND AGAINST. 245 tuted. 8wp. Court Rules, JVo. 32. A note of the day of the filing of the report should be entered by the clerk in the proper book under the title of the proceeding ; and the report will be- come absolute, and stand as in all things confirmed, unless excep- tions thereto are filed and served within eight days after service of notice of the filing the same. And if exceptions are filed and served within that time, the same may be brought to a hearing at any special term thereafter on the notice of any party inter- ested therein. li. When corporation to ie dissolved.} The statute provides, that upon the coming in of the report of the referee, if it shall appear to the court that the corporation is insolvent, or that, for any reason, a dissolution thereof will be beneficial to the stockholders, and not injurious to the public interest, a decree shall be entered dissolving the corporation, and appointing one or more receivers of its estate and eft'ects ; and such corporation shall thereupon be dissolved, and shall cease. 2 Hev. Stat. 468, sec. 65. K neither of these facts be established by the referee's report, then, of course, the order will be simply that the petition and proceedings be dismissed ; although, no doubt, the court has the power in this, as in other cases, to refer the matter back to the referee, to take farther proof, or to supply any omissions or im- perfections in his report. 2 Van Sant. Pr. 434. And the court will not decree a dissolution of the corporation simply because a majority of the directors and stockholders re- ■ quest it to be done ; though where the owners of a large majority of the stock find it for their interest to withdraw their capital, it will be deemed presumptive evidence, that the interest of the stockholders generally will be promoted by a dissolution of the corporation. 1 Paige, 268. Who may he appointed receiver/ his security, cfec.J The stat- ute provides that any of the directors, trustees, or other officers of such corporation, or any of its stockholders, may be appointed receivers, who, before entering upon the duties of their appoint- ment, shall give such security to the people of this State, and in such penalty as the court shall direct, conditioned for the faith- ful discharge of the duties of their appointment, i d for the due 246 C0EP0EATI0N3 — ^PEOCEEDINGS BT AND AGAINST. [CH. VIIL accounting for all moneys received by them. 2 Hev. Stat. 468, sec. 66 ; 8 Paige, 385, affirming 3 l^dw. 385. Seceiver / his powers and duties, c&c] The general powers and duties of the receiver, and his proceedings in the collection and management of the corporate assets, and to wind up the affairs of the corporation, are the same in all respects as those stated in the preceding first section of this chapter. The statu- tory provisions in both cases are identical ; indeed, the provisions of the statute quoted at large in the first section, are those speci- ally applicable to the proceedings for the voluntary dissolution of corporations. 2 Bev. Stat. 469, sees. 67 to 89, ante, p. 222. The receiver is liable only to the extent of the property and effects that shall come into his hands. 42 Barb. 174. Appeals.'\ The statute provides, that any decree or order of the Sttpreme Court made upon any petition presented pursuant • to the provisions of the statute, or in the course of any proceed- ings thereon, shall be subject to an appeal in the same manner as other orders and decrees of the said court, if the same be made within six months after such order or decree made. 2 Eeo. Stat. 4Y2, sec. 90. OH. Vm.] COEPOKATIONS. 246-1 SUPPLEMENT TO CHAPTER VIII. The proceedings for the voluntary dissolution of a corporation aie special, and mnst conform to the statute, notwithstanding they are instituted in a court of general jurisdiction. 7 Hun, 557. The proxdiions of the Remised Statutes, entitled, "Of proceedings against cor- porationsin equity," are not repealed by the Act of 1849, " to enforce the respon- sibility of stockholders in certain banking qorporations," etc. 53 Ba/rb., H2, and see ante, p. 334, note. A stockholder cannot maintain an action against the corporation on account of a forfeiture of the charter for non-user, unless such non-user has continued for one year. 61 Barb. , 9. Notice to creditors to present their claims. To entitle a creditor to share in the assets he must exhibit his claim and become a party to the suit within six months from the first publication of notice requiring him to do so. 45 N. Y., 310. JReeeiver. A receiver cannot be appointed before the return of the order to show cause, 7 Hun., 557 ; nor will his title as receiver vest until the filing of his bond. lb. In an action brought by a stockholder to obtain a forfeiture of the charter for non-user, a receiver cannot be appointed until judgment in the action. 61 Barb. , 9. An application may be made by a stockholder without the inter- vention of the attorney -general to restrain an insolvent insurance company from the exercise of its corporate rights, and for the appointment of a receiver. 61 JV. ¥.. 524, affirming 61 Barb., 54. The receiver of an insolvent life insurance company in an action brought by a creditor and stockholder to procure its dissolution and the distribution of its assets, cannot require from the superintendent of the insurance department the securities deposited with him by said company pursuant to the requirements of the act providing for the incorporation of such companies. The Court in such a case has no power to compel the superintendent to transfer his trust. 59 N. T., 163, affirmmg 1 Hun, 334. Where creditors to apply for relief. Where proceedings have been instituted for the dissolution of an insolvent corporation and the distribution of its assets, and a receiver has been appointed therein, the rights of persons claiming to be creditors of the corporation to share in the distribution of the assets, is to be de- termined upon application to the Court in such proceedings, and in the district in which the receiver was appointed. 59 N. 1^,143. Dissolution where tmstees are equally divided: New statute. By a recent statute, where the trustees of a corporation organized under the general law for the forination of corporations for manufacturing, mining, mechanical or chemical purposes, shall consist of an even number of persons who shall be equally divided in respect to the management of the company, etc. , the Supreme Court is author- ized to dissolve the corporation and wind up its affairs. Laws of 1876, p. 474. And the Court may, in proper cases, under the provisions of the act, which authorizes the distribution of the surplus assets among the stockholders, direct such assets to be sold, and the proceeds divided among the stockholders. 8 Hun, 508. Vol. I.— 19 CHAPTER IX. PEOCEEDESTGS TO COMPEL THE DETERMmATION OF CLAIMS TO EEAX ESTATE. At the common law, there was no way in which titles to real estate conld be quieted, where an outstanding claim existed against them, unless the person having such claim commenced proceedings to enforce it. Much inconvenience necessarily re- sulted irom the uncertainty attending titles, in many instances, to obviate which the legislature created a new remedy, whereby a person in possession of land could himself institute a proceed- ing for the purpose of quieting his title. Ora. Pr. 849, Id ed. This remedy was first authorized by the Eevised Statutes of 1830 ; which, with the amendments and additions since made, now constitute the statutory law on the subject in this State. 2 Rev. Stat. 312 ; Zcms of 18^8, j>. 67; 1854,^. 276; 1855,^. 943; 1860, p. 295 ; 1864, p. 469 ; Code, §§ 308, 449. Who may proceed, and in what cases.] The statute provides, that where any person, singly, or he and those whose estate he has, shall have been for three years in the actual possession of any lands or tenements, claiming the same in fee or for life, or for a term of years not less than ten, he may compel a determin- ation upon any claim which any other person may make to any estate, in fee or for life, or for a term of years not less than ten, in possession, reversion, or remainder, to such lands, and tene- ments, in the manner and by the proceedings hereinafter speci- fied. 2 Hev. Stat. 312, sec. 1, as amended. Laws 1848, p. 67 ; Laws\8. 350 ; 3 All. 448. The court has the power to set aside a default, and will do so, on good cause shown, the same as in other actions. 3 Abh. 446 ; and see 18 Wend. 572; 6 Id. 519 ; 7 Eill, 166. An^swer of defendant^ The answer of the defendant, and the other pleadings in the cause in respect to their form are the same as in other actions, and are regulated by the Code of Pro- cedure. Code, § 449 ; 18 Barb. 332 ; 26 Row. 350. By the statute, (2 R. 8. 313, sec. 7, as amended Laws 0^1855 "p. 943,) the defendant may in his answer allege in bar of all, further proceedings, that neither the plaiatiff, nor he and those whose estate he has, have been in the actual possession of the premises claimed for three whole years before the commencement of the action. Ibid. Trial, and subsequent proceedings.] The issues joined be- tween the parties are to be tried in the same manner as issues in other personal actions ; and the successful party will be entitled to judgment for such relief as he shall be entitled to, with costs, as in other personal actions under the Code ; the person in whose behalf the proceeding is instituted shall be called the plaintiff, and the other party the defendant. 2 Bev. Stat. 313, sec. 7, as am.ended, Loajds of 1855, p. 943. If the defendant claims the premises in question, by virtue of ' any estate in remainder or reversion, he will not be required to establish an immediate right to the possession of such premises ; but if the issue be found in his favor, the time when he will be entitled to such possession shall be specified in the verdict or report and judgment entered thereon accordingly. lb. sec. 13, as amended. The defendant is bound to produce and prove his title on the trial. And the plaintiff is not required to show anything beyond the three years' possession, under a claim to one of the three estates named in the statute, if it is disputed and put in issue by the answer. 42 Barb. 304. On the trial of the action, it is not improper to charge the jury that in the event of their finding a verdict for the defendant, 252 DETERMESTATION OF CLAIMS TO BEAL ESTATE. [CH. IX. they may go further, and determine whether the defendant had title to the whole of the premiseB, or what portion thereof. 38 Barb. 96. " I see no objection " (says Hogeboom, J., in the case cited) " to such an instruction to the jury. In this peculiar proceeding, the defendant occupies substantially the position of a plaintiff in the action of ejectment, and must recover on the strength of his own title, which, aa to nature and territorial ex- tent, must, in the action of ejectment, be particularly stated in the verdict ; and I think it not improper to have it so stated in this form of proceeding, if indeed the statute does not perempto- rily require it ; for the verdict must specify whether the defend- ant is entitled to immediate possession, or only to an estate in reversion or remainder ; and a writ of possession issues or does not issue accordingly. (2 JRev. Stat. 314, sees. 13 to 16, as a/mended by Laws of 1855, p. 943.) It can be no less proper, especially with a view to the form and effect of the ultimate judg- ment to be pronounced in the case, that the verdict should specify the extent of the defendant's title, whether covering the whole or only Kpart of the premises; for if only the latter, then it would seem, in analogy to the practice in ejectment, the verdict must specify that the adverse party is entitled to the residue, or the judgment must declare that the defendant's recovery is to be limited to the portion thus ascertained to belong to him." Effeot of the judgment.l The judgment obtained by either party in the action, will determine all claim to any estate of in- heritance or freehold, or for a term of years not less than ten, in possession, reversion, or remainder, in the premises described in the complaint ; and will bar and be conclusive against the par- ties to the action, and those claiming under them by title ac- cruing subsequently to the commencement of such action. 2 Bev. Stat. 314, sec. 14, as amended Laws of 1855, j?. 943 ; Laws of 1860, p. 295. Either party, however, may appeal from the judgment, the same as in other actions, and with the same effect. Laws of 1855,^. 943, sec. 11 ; 12 Wend. 258 ; Code, sec. 449 ; 18 Barb. 332. Proceedings if defendant recovers.] If the defendant recov- ers, and is entitled to the immediate possession of the premises, he win be entitled to a writ of possession, and to recover the CH. IX] DETEEMINATION OF CLAIMS TO REAL ESTATE. 253 value of the use and occupation of the premises, as in an action for that purpose. 2 Rev. Stat. 314, sec. 15, as amended ly Laws 0/1855,^.943. And if he recovers upon any title in reversion or remainder, by virtue of which he shall not, at the time of such recovery, be entitled to the immediate possession of the premises in contro- versy, no writ of possession shall issue upon such judgment, nor shall the defendant recover any damages ; but whenever such defendant, or those claiming under him, shall be entitled to such possession, an action may be brought therefor as in other cases. Ji. sec. 16, as amended Laws 1855, p. 943. Proceedings against non-residents.] When the person in- tended to be proceeded against under the provisions of the stat- ute, is not a resident of this State, and shall not have been per- sonally served with tlie summons and complaint, the plaintiff may present a petition to the Supreme Court, setting forth such facts, together with a copy of the summons and complaint. The petition, together with the facts stated in the complaint, must be verified by the plaintiff's affidavit ; and the affidavit must also set forth whether the defendant has any agent or agents within this State, and the names and residence of such agents, if any are known. And the court may thereupon, in its discretion, make an order for the service of such summons and complaint, upon such agent or agents. 2 Sev. Stat. 315, sees. 17, 18, 19 ; Code, § 449; 18 Barb. 332; 38 Id. 94; 2& How, 350; 3 Abb. 448. Upon due proof of the service of such summons and complaint in the manner directed, the court, upon the application of the plaintiff, if no good cause appear to the contrary, and the defend- ant shall not have appeared pursuant to the rules and practice of the court, may render judgment for the plaintiff, as hereinbefore provided. Id. ibid ; 2 Rev. Stat. 315, sec. 20, as amended by Laws of IB5?>, p. 943. Costs of the action.} The successful party, as we have seen, is entitled to judgment, with costs, as in other personal actions under the Code. 2 Rev. Stat. 313, sec. 1, a^ amended. Laws of 1855, p. 943. By sections 304 and 305 of the Code, he is entitled to the 254 DETEEMIITATIOIT OF CLAIMS TO EEAL ESTATE, [CH. IX. specific costs fixed by law, when a claim of title to real property arises on the pleadings, or is certified by the court to have come in question on the trial ; and by section 308 he is entitled to an additional allowance. 3 Ahh. 449 ; 2 Dwr, 683. The different items of costs are regulated by the Code, as in other cases. Code, §§. 303-322. Appeals.'] In case of a trial of the action, either party con- ceiving himself aggrieved, may appeal as in personal actions under the Code, Laws of 1855, p. 943, sec. 11. SUPPLEMENT TO CHAPTER IX, The action generally. This action is not a substitute for proceedings under the Revised Statutes ; and the right to institute those proceedings still exists in full force. The remedy by action is an additional or cumulative remedy, to be adopted by him or not at his election. 3 Eun, 623 ; 41 iV. T. , 425 ; 48 /d, 41 ; and see ante, p. 347. The action cannot be maintained against infant defend- ants. 56 Jd, 407. Tlie plaintiff must show three years' actiud possession. Although the plaintiff proves the title in himself, and that the premises were actually occupied prior to the three years, yet if, during that time, the premises have beeo vacant, uu- fenced and unoccupied, the action cannot be maintained 61 JT K, 531. So, where a deed of the premises was shown to the plaintiff's ancestor, his decease intestate, that the plaintiff was his heir-at-law, and that the premises were vacant, it was held that this did not establish an actual possession. 59 Id. , 134. ''.'he words " ' actual possession," mean a possession in fact, effected by actual entry upon the premises. lb. The three years' actual possession must immedi- ately precede the commencement of the action. 61 Id., 531. Who may be made defendants. A party served with notice under the statute, who claims to hold a certificate of sale of the premises for the term of ten thou- sand years, for non-payment of municipal assessments, is a claimant of " an estate for a term of years not less than ten," within the meaning of the statute, and can be proceeded against. 41 N. T. , 425. And where there are different claimants, each claiming distinct parcels of the premises, but all denying plaintiff's rights upon the same groimd, and claiming title from the same source, it is proper to join them all as defendants in the same action or proceeding. 48 /d, , 41. Tlie complaint must state every fact necessary to enable the court to determine whether the plaintiff has a cause of action arising under the statute. It must show that the plaintiff has been for three years in possession of the premises, and that both plaintiff and defendant claim an estate therein in fee, or for life, or for a term of years not less than ten. 49 N. Tl , 266. It must allege that the de- fendant unjustly claims title to the premises ; and must notify the defendant that unless he appears and asserts his claim, he will be forever barred. 56 Id. , 407. When action deemed commenced. The action is deemed commenced, for the purpose of operating as constructive notice to purchasers from the defendant, from the time of the filing of the notice ; but as against a resident defendant, the action is commenced when the summons is personally served, or delivered to an officer with intent that it shall be actually served. 2 Hun, 619. On the trial of t/ie action, if it appears that the plaintiff was neither the owner nor in possession of the premises at the time of the commencement of the action, the complaint will be dismissed with costs. lb. Costs. Whether the proceeding is by action or by special proceedings, the court has jurisdiction over the question of extra allowance of costs, and the de- oisiou cannot be set aside upon motion. 48 i^. Y.,42; and see ante, p. 353. CHAPTER X. FOECIBLE EITTEIES AND DETATNEES. A FOECIBLE entry or detainer is committed by violently taking or keeping possession of lands and tenements, with menaces, force, and arms, and without the authority of law. At the common law, a man disseized of lands or tenements, if he could not prevail by fair means, might lawfully regain the possession thereof by force, unless he were put to the necessity of bringing his action, by having neglected to reenter in due time. But this indulgence having been found by experience to be prejudicial to the public peace, by giving an opportunity to powerful men, under the pretence of feigned titles, forcibly to eject their weaker neighbors, and, also, by force, to retain their wrongful possessions, it was thought necessary by many severe laws to restrain all persons from the use of such violent methods of doing themselves justice. 1 JSaw. 140 ; JBac. Air. Forcible Entry and Detainer ; hut see 1 Suss, on Crimes, 303, 304, and notes. Hence, the statute 5 Rich. II. st. 1, c. 8, and other stat- utes, from time to time, were passed in England, by which forci- ble entries and detainers were punished by imprisonment, and provisions made giving the party aggrieved restitution of posses- sion to the premises from which he had been forcibly ejected or detained. Id. ibid. ; 3 Jac. Law Die. 86. And previous to the passage of the present law on the subject in this State, those acts had been almost UteraUy copied into our statute. See 1 E. L. 96. They were found, however, not to answer the purpose in- tended, owing mainly to the intricacy and obscurity of their pro- visions ; and the present law on the subject, which went into effect on the 1st day of January, 1830, was intended to present 256 FOBCIBLE ENTEIES AND DETAINEES. [CH. X. as clearly and distinctly as possible, the substance and effect of the several acts above mentioned, as they had previously been understood in England and in this State. Rev. Notes, 3 Hev. Stat. 2d ed. 763. What constitutes a forcible entry or detainer.] The statute provides that no entry shall be made into any lands or other pos- sessions, but in cases where entry is given by law ; and in such case only in a peaceable manner, not with strong hand, nor with a multitude of people. 2 Hev. Stat. 50Y, sec. 1 ; 1 Huss. on Or. 304 to 316. To constitute a forcible entry, there must be something of personal violence, or tendency to, or threat of, personal violence, unless the entry or detainer be riotous. In all cases there must be something beyond a mere trespass upon the property. 17 Wend. 262 ; 24 Barb. 16. Breaking the door of a house, espe- cially of a dwelling house, is the least evidence that has been held sufficient to constitute a forcible entry. Breaking the 'door of an outhouse, in the actual possession of the complainant, by forcing the lock, is not sufficient. Id. ibid. The same circumstances of violence which will make an entry forcible, will make a detainer forcible, also ; and whoever keeps in the house an unusual number of people, or unusual wea- pons, or threatens to do some bodily hurt to the former posses- sor, if he dare return, will be adjudged guilty of a forcible detain- er, though no attempt be made to reenter. 8 Cowen, 226 ; 3 Bac. Abr. 253, Who may institute the proceedings.] The person forcibly put out, or forcibly held out, of possession, and the guardian of any person being a minor, are the proper persons to institute the proceedings. 2 Bev. Stat. 507, sec. 2. The proceedings must be prosecuted by and in the name of the party whose legal right of possession has been invaded, and not by the individuals who may have been charged with author- ities or duties respecting it ; and, therefore, proceedings for the forcible entry and detainer of a church owned by a religious society, incorporated under the general statute, should be in the name of the corporation, and not in the individuals names of the trustees. 1 Kernan, 94. CH. X] FORCIBLE ENTEIES AND DETAINEES. 257 The person authorized to institute the proceeding must have an estate of freehold, or for a term of years in the premises then subsisting, or some other right to the possession thereof. 2 Rev. Stat. 508, sec. 3. A mere intruder or trespasser cannot institute proceedings under the statute, and be restored to the possession which he unlawfully holds ; but every person lawfully in possession, and forcibly excluded therefrom, is entitled to the benefit of the statute. The object of the legislature was to extend this remedy not only to those who were seized in fee, or who had a term for years, but to all who had any right to the possession. A tenant at will, therefore, is entitled to institute proceedings under the statute. 11 Wend. 157, 159. Also, a party in the peaceable and actual possession of land at the time of a forcible entry, although he is neither seized of a freehold nor possessed of a term for years in the premises. 29 Barb. 208. And proof of actual possession is sufiieient to support the allegation in the inqiiisition that the complainant was possessed in fee simple. 9 Id. 50. Officers authorized to entertain proceedings. ^ The otiicers authorized to entertain a complaint under the statute, are the justices of the Supreme Court ; also, the county judges, the mayor, recorder, or alderman, of any city, in their respective counties and cities; and also the judges of the Court of Com- mon Pleas, the City Judge, and any justice of the Marine Court, or of the District Court of the city of New York. 2 Rev. Stat. 507, sec. 2; Ih. 510, sec. 18; Const, of 1846, art. 14, sec. 8- Laws of 1848, J?. 250, sec. 4; Ih. 404, sec. 1 ; Laws of 1852,^. 471 ; Laws of 1850,^. 388 ; 6 Abh. 146. Also, the justices of the Superior Court of the city of Bufi'alo, within that city. Laws of 1857, vol. 1, p. 754, see. 25 ; and the City Judge of Brooklyn, within the county of Kings. Laws of 1849,^. 174, sec. 26. The complaint.'] "Where any forcible entry shall be made, or where the entry shall be made in a peaceable manner, and the possession shall be held by force, the person so forcibly put out, or so forcibly holden out of possession, and the guardian of any such person being a minor, may be restored to such possession by making a complaint to any one of the officers authorized to en- tertain the proceedings, and by proceeding according to the pro- 258 rOECIBLE ENTEIES AND DETAINEES. [CH. X. ■visions of the statute. 2 Refo. Stat. 508, sees. 2 and 3. For form of complaint and affidavit, see Appendix, No. 143. The complaint must be in writing, and be accompanied by an aflidavit of the forcible entry or the forcible holding out, and that the complainant has an estate of freehold, or for a term of years in the premises then subsisting, or some other right to the possession thereof, stating the same. 2 Reo. Stat. 608, sec. 3. Where the complaint ftilly sets out the estate and right of possession of the complainant, aud the forcible entry or the forcible holding out, and is verified by affidavit, no other affidavit is necessary. In such case, the complaint will be regarded both as a complaint and an affidavit. 7 How. 441. And where the affidavit, supporting the complaint, states a lawful possession, though it may not be technically sufficient, yet the objection will be waived, unless it is taken before the officer previous to the taking of the inquisition. 11 Wend. 157. Precept for jury.] The officer, upon receiving the com- plaint, is required to issue a precept to the sheriff or any con- stable of the county, commanding him to cause twenty-four inhabi- tants of the same county, duly qualified to serve as jurors, to come before such officer, at some time not less than two days thereafter, to inquire of such forcible entry, or such forcible hold- ing. 2 Eev. Stat. 508, sec. 3. For form, see Appendix, JSTo. 144. Notice to the defendant, and how served.] The officer is im- mediately to cause a notice in writing, of the issuing of the pre- cept, and of the time and place of the return thereof, to be served upon the party against whom such complaint is made, by delivering the same to such person ; or, if he cannot be found, by delivering such notice to some person of proper age on the premises ; or, if there be no such person, by affixing the same on the fi-ont door of the house, if there be one ; or, if there be none, on some other public and suitable place on the premises. 2 Eeo. Stat. 508, sec. 4. For form of notice, and affidavit of service, see Appendix, N"os. 145, 146. Proceedings lefore the jury of inquiry.] At the day and place appointed for the return of the precept, the officer is re- quired to administer an oath to the persons returned summoned, CH. X.] FOECIBLE ENTRIES AND DETAINEES. 259 wlio shall appear, not being less than thirteen, and not more than twenty-three, well and truly to inquire into the matters com- plained of, and a true inquisition thereof to make. For form, £ee Appendix, N^o. 147. And the jury so sworn are then to pro- ceed to make inquiry into the forcible entry, or the forcible hold- ing, complained of, and may examine witnesses, on oath, to be administered by such judge ; and shall make and sign their inquisi- tion before the said judge, and deliver the same to him. 2 Rev. Stat. 508, sec. 5. For form of inquisition, see Appendix, No. 149. K twenty-four persons be sworn on the jury of inquiry, the conviction will be void. 2 Cai. JR. 98. The defendant is entitled to produce witnesses before the jury, to cross-examine the plaintiff's witnesses, and to sum up the evi- dence. 11 Wend. 15Y. Both parties have the same remedy to compel the attendance of witnesses, as parties in suits before justices' courts. 2 Hev. Stat. 510, sec. 17. Proof of a sufficient estate or right of possession is to be made to the officer when the complaint is preferred, and before any , process can be issued. The statute does not confer upon the jury the power to investigate the title or right of possession of either party. The appropriate subject of investigation before the jury of inquiry is the forcible entry or the forcible holding complained of; and the examination is limited to that subject. 7 How. 169 ; and see 13 Id. 446. Restitution ordered, if there is iw traverse.'] If the jury flnu that the defendant is guilty of the forcible entry or detainer, and the defendant does not traverse the inqiiisition in the manner specified by the statute, and within twenty-four hours after it is foimd, the officer shall award restitution of the premises, and assess the costs and expenses of the proceedings, and issue his precept to cause restitution, and for the collection of the costs, la the same manner as on judgment of verdict of guilty on the trial of such traverse. 2 Rev. Stat. 510, sec. 14. For form of award and of precept, see Appendix, Nos. 150, 151. The costs and expenses here allowed, are only the fees of the officers who are required to perform services in these proceedings. 6 How. 178 ; 5 iS. 22 ; 4 HiU, 541. 260 FORCIBLE ENTRIES AND DETAINERS. [CH. X. Traverse of inquisition, c&g.'] If by such inquisition it shall be found that forcible entry was made, or that, the entry being peaceable, the possession was forcibly kept, the party complained against may traverse such inquisition, in writing, denying such forcible entry or forcible holding out, or alleging that he or his ancestors, or those whose estates he has, in such lands, have been in quiet possession thereof for the space of three whole years n ijt before such inquisition found, and that his interest therein is not ended or determined. For form, see Appendix, ~^o. 152. And if the defendant shall pay to such officer the fees of summoning a jury to try such traverse, and the jurors, and officers' fees on such trial, such traverse shall stay all further proceedings on such complaint and inquisition until the same be tried. 2 Rev. Stat. 508, sec. 6. If any person shall make affidavit before such officer, that the party complained against is the tenant of such person, under a valid and then subsisting demise, he shall be permitted, on pay- ment of the fees specified in the last section, to traverse the inquisition as landlord, in the same manner as is allowed to the party complained of, either with such party or without him. Ih. sec. 7 The traverse and proceedings thereon?^ Upon such traverse being made, either by the party complained against, or by his landlord, the officer shall issue a precept to the sheriff, or any constable of the county, commanding him to summon twelve qualified jurors to come before such officer, at the place therein to be specified, at a time not less than four nor more than eight days thereafter, to try such traverse. 2 Rev. Stat. 509, sec. 8. For form, see Appendix, ISo. 153. The jurors shall be summoned, returned, and empanneled, in the same manner as provided by law in civil actions before jus- tices of the peace (2 Rev. Stat. 243), and shall be sworn by the magistrate well and truly to hear, try, and determine, the said traverse. For form of oath, see Appendix, 'So. 155. They shall be kept together by such magistrate, and shall hear and examiae any competent witnesses who may be offered, on oath, to be administered by him. 2 Rev. Stat. 509, sec. 9. For form of oath, see Appendix, No. 156. After hearing the allegations and proofs of the parties, the CH. X.] FOBCIBLE ENTRIES AND DETAmEES. 261 jury shall be kept together until they agree on a verdict, by an officer, who shall be sworn as is usual on trials in courts of record 2 Rev. Stat. 609, sec. 9. If the jury cannot agree after being kept together for such time as the magistrate shall deem reasonable, he may discharge them, and issue a precept for a new jury ; and the same proceedi- ings shall be had in respect to such new jury. lb. sec. 10. If some of the jurors summoned are found to be disqualified, the officer may be directed to summon others in their placesi, until his panel contains twelve qualified jurors. 7 How. 441. The defendant is entitled to have his traverse tried by twelve jurors ; and the trial by six only, without his consent, is erro- neous. Ih. What may he shovm on the tricH. On the trial of the trar verse the complainant is only required to show, in addition to the forcible entry or detainer complained of, that he was peaceably in actual possession at the time of the forcible entry, or was in the constructive possession of the premises at the time of the forcible holding out. 2 Hev. Stat. 509, sec. 11. And the defendant may show, in his defense, that he or his ancestor, or those whose interest in such premises he claims, have been in quiet possession thereof for the space of three whole years together, next before the inquisition found, and that his interest therein is not then ended or determined ; and such show- ing wUl be a bar to the prosecution. Ih. The questions, then, to be tried arc the possession, and the forcible character of obtaining or holding it ; not the question whether a party actually in peacable possession and forcibly expelled, had the right to the possession. 7 How. 441. The defendant may show, as a defense to the proceeding*, that he was at the time of the alleged forcible entry and detain- er, and had been for a long time previous, in the peaceable pos- session of the premises in question, and that they had never been in the actual possession of the complainant ; and where the judge, before whom the proceedings were pending, rejected the evidence to show those facts the inquisition was quashed. 13 Id. 446. The proceedings do not embrace the investigation of titles to real property, or the right to its present enjoyment. 7 Id. 166 ; and see 9 Wend. 50 ; 11 Id. 157. Vol. I.— 30 262 FOECIBLE EI^TEIES AND DETAINEES. [CH. X, Judgment, and process thereon.] The verdict of the jury is to be received and recorded by the judge ; and if the defend- ant is thereby found guilty, he is thereupon to award restitution of the premises so forcibly entered, or forcibly held, and to assess the costs and expenses of the proceedings. 2 Hev. Stat. 509, sec. 12. For form, see Appendix, No. 157. And he is also thereupon to issue his precept, reciting the proceedings before him, and commanding the sheriff of the coun- ty, or any constable thereof, to cause the complainant to be re- stored and put into full possession of the premises, according as he was seized or possessed thereof before such entry ; and is, also, in the same precept, or iu a separate execution, to direct the costs and expenses so assessed, to be levied and collected of the defendant, in the same manner as costs are or may be collected on judgments before justices of the peace in personal actions. Ih. sec. 13. For form, see Appendix, No. 158. Duty of sherif and constable,.] Sheriffs and constables to whom any process issued by a judge, as authorized by the statute, shall be directed and delivered, shall execute the same, and if need be, shall command and take the power of the coimty for that purpose. 2 Bev. Stat. 510, sec. 15 ; II). 551, sec. 3. Jurors.] Twenty-four hours' personal notice to any jury to attend upon any precept issued under the statute, shall be deemed sufficient service ; and any person so summoned, who shall neglect to to attend and serve as such juror, without reason- able excuse, be allowed by the judge issuing such precept, shall be subject to the same fine, to be prosecuted for, collected, and applied to the same use, as provided by law (2 Bev. Stat. 245, se-c. 112) in respect to jurors in justices' courts. Ih. 510, sec. 16. Witnesses.] The judge before whom the complaint shall be made, may, at the request of either party, issue his subpoena re- quiring any person to appear and testify before him, or before the jury of inquiry, or before the petit jury, touching the matters directed to be heard before them. For form, see Appendix, No. 154 And any person served with such subpoena, who, without rea- sonable cause, shall neglect to appear, or appearing, shall refuse CH. X.] FORCIBLE ENTRIES AND DETAINEES. 263 to answer upon oath, touching the matters aforesaid, shall he subject to the proceedings and penalties prescribed by law. (2 R&o. Stat. 240, sec. 80, c6c.) 11. 610, sec. 11 ; 11 Wend. 159. Proceedings set aside on motion.] The proceedings may be quashed on motion founded on affidavits, for irregularity, and a re-restitution awarded. 10 Johns. S. 304 ; 13 Id. 158 ; 1 Gai. jR. 125. And it is not too late to make the motion after the in- quisition has been traversed by the defendant. 13 How. 446. And so, the proceedings may be quashed, if irregular or in- sufficient, when they are brought before the court on certiorari. 24 Barb. 16. And the court may, also, in its discretion, permit the defend- ant to move to set aside the inquisition on the ground of the rejection of proper evidence before the jury, which found it, after having traversed it before the county judge ; and delay will not necessarily preclude him from obtaining relief. 7 How. 166. Certiorari to remove proceedings.] After inquisition found, the proceedings may be removed, by .certiorari, into the Supreme Court. 4 Wend. 213 ; Y Sow. 166 ; 13 Id. 446. For form of certiorari, see Appendix, No. 159. But such proceedings cannot be removed unless the certiorari is allowed by a justice of the Supreme Court, or a Supreme Court commissioner. 2 Rev. Stat. 510, sec. 19. But the constitution of 1846, having abolished the office of Supreme Court commis- sioner {art. 14, sec. 8), the writ is now allowed by a justice of the Supreme Court. And also, it seems, by a judge of the Court of Appeals, county judge, or local officer, elected to discharge the duties of county judge and surrogate. laws of 1847, p. 324, sec. 17 ; 10 Eow. 181. The writ will not be allowed by such officer, unless the de- fendant prosecuting the same, with two sufficient sureties to be approved by such officer, or, in case of the absence of such defend- ant, three sufficient sureties, to be approved, as aforesaid, become bound to the complainant in such penal sum as such officer shall direct, not less than one hundred dollars, conditioned that such party wiU appear at the return of the said certiorari, and answer to the inquisition found, and abide such order and judgment as the Supreme Court shall make in the premises, and pay all costs 264 FOHCIBLE ENTBIES AKD DETAINEES. [CH. X. tTiat shall be awarded against such defendant. 2 Jiev. Stat 510, sec. 20. The bond, when duly executed, is to be delivered to the judge to whom the certiorari is directed ; and untU the same is so de- livered, such certiorari will be of no effect. lb. For form of bond, see Appendix, No. 160. The judge is required to annex and file the bond with his re- turn to the writ ; and the Supreme Court is to proceed therein, and cause the defendant to traverse the inquisition, if no traverse has been had. and to direct a trial. lb. sec. 21. For form of return and traverse, see Appendix, Nos. 161, 162. K the defendant omit to traverse the inquisition within such Mme as the court, by rule, shall direct, restitution shall be award- ed by the court, with costs. And if, upon the trial of the traverse the defendant be found guilty, the court shall also award restitution, with costs ; and, in either case, the court may authorize the complainant to prosecute the bond given, on the allowance of the writ of certiorari. Jb. sec. 22. Where the proceedings are removed by certiorari, into the Supreme Court, and the issue therein is ordered to be tried at the circuit, if the complainant do not proceed to trial, judgment as in case of non-suit wUl be granted, the same as in actions. 3 mil, 446. Heview of decision by Court of Appeals. 1 The party aggrieved by the decision of the Supreme Court, may have the decision reviewed. This may be done by writ of error, and not by appeal, the second part of the code not applying to this proceeding. Code § 4T1 ; and see 19 New York, 584 ; 18 Id. 487 ; 20 Id. 529, ante, p. 14, note b. Costs.'\ We have seen that the complainant, if successful before the magistrate, is entitled to his costs and expenses of the proceedings. They are the fees only of the officers who are required to perform services in these proceedings. 6 How. 178 ; 5 Id. 22 ; 4 Hill, 541. The costs and expenses are to be assessed by the magistrate; and it is not necessary that they should be taxed. Attorney and counsel fees are not recoverable. Id. ibid. Where the proceedings, after inquisition, are removed by cer- CH. X] FORCIBLE ENTRIES AND DETAINEES. 265 tioraii, into the Supreme Court, the party prevailing is entitled to costs. 2 Bev. Stat. 613, sees. 3, 16, 39 ; and see 3 Mill, 446, per Bronson, J.; 6 Sow. 178. In respect to the rate at which the costs are to be taxed, see 0. If the action is com- menced by an assignee of the mortgage to foreclose it, and to enforce the collateral bond and the guaranty of his assignor, the judgment should provide, first, for the sale of the mortgaged premises ; second, for an execution against the obligor, for the deficiency ; third, for an execution against the guarantor for any deficiency after the return of the execution against the obligor. Clarke's Gh. R. 453 ; and see 9 Paige, 432. In case the whole amount secured by the mortgage is not due, the referee, as we have seen, is required to ascertain and report whether the premises are so situated that they can be sold in parcels. And if in such case it appears to the court that the premises are so situated that the sale of the whole will be most beneficial to the parties, the judgment will, in the first instance, be entered for the sale of the whole premises accordingly. 2 Rev, Stat. 198, seo. 165. But, if, on the contrary, the premises CH. XI.] FORECLOSUEE BY ACTIOIT. 305 are so situated, that a sale in parcels woiild be most beneficial to the parties, the judgment will direct only so much of the premises to be sold as will be sufficient to pay the amount then due, with costs. And this, too, although the residue will be insufficient to sat- isty the mortgage money wnich is yet to become due. 5 Paige, 38. If the whole debt is not due, and the judgment directs a sale of the whole premises, it should also direct the proceeds of the sale to be applied as well to the interest, portion, or installment of the principal due, as towards the whole or residue of the sum secured by the mortgage, and not due and payable at the time of the sale ; and if such residue do not bear interest, the judg- ment may direct the same to be paid, with a deduction of the rebate of legal interest, for the time during which such residue shall not be due and payable ; or may direct the balance of the proceeds of such sale, after paying the sum due with costs, .to be put out at interest, for the benefit of the plaintiff, to be paid to him, as the installments or portions of the principal, or the interest may become due, and the surplus for the benefit of the defendant, his representatives or assigns, to be paid to them on the order of the court. 2 Eev. Stat. 193, see. 166. But it is the duty of the court to protect the rights of subse- quent incumbrancers, whether by mortgage, judgment, or other- wise ; and it will, therefore, provide for the sale of so much of the mortgaged premises, and in such manner as that those par- ties shall not be prejudiced. And, although it should appear that a sale of one parcel is siifficient to pay the mortgaged debt and costs, yet, the court will direct a sale of the whole, when the rights of subsequent incumbrancers are such as require it. 19 Wew York, 440. And this power may be exercised as well after the sale of enough to satisfy the primary lien as before,- so long as the parties and the subject matter of the action remain- before and under the jurisdiction of the court. II).; and see 11 Paige^ 71 ; 3 Sand. Ch. R. 177. Where a junior mortgagee of the premises is made a party to the action, the court may direct a sale of so much of the mort- gaged premises as will be sufficient to satisfy the amount due on the junior mortgage, and all intermediate liens and incum- brances, in addition to the amount of the plaintiff's mortgage and costs ; and a reference may be ordered, previous to the sale, to ascertain the amount of such liens. 8 Paige, 511 806 FORECLOSUEE BY ACTION. [CH. SI. If a part only of the mortgage debt is due, and tlie judg- ment lias directed only a portion of the mortgaged premises to be sold, and there has been a sale of such portion, the judgment will remain as security for any subsequent default. 2 Hev. Stat. 193, sec. 163, ^ost. If a prior mortgagee is made a party to the action, and will not consent to a sale. Or the amount of his incumbrance is not yet due, a judgment may be directed subject to his mortgage, leav- ing the purchaser to pay the same as it becoraes due, or when- ever the prior mortgagee thinks proper to enforce his lieu upon the premises. 1 Paige, 284, 286. The judgment, where a defendant has made payments for his co-defendants, towards satisfying the mortgage, and beyond his proportion of the burden, may direct that he be deemed substi- tuted for the plaintiff on the sale, and be awarded satisfaction out of the surplus. 4 Johns. Ch. 545. "Where it is suggested, on the application for judgment, that the mortgaged premises are held by the several defendants in parcels, the judgment should direct that, if it shall appear to the referee, who makes the sale, that separate parcels of the mort- gaged premises have been con-^eyed or incumbered by the mort- gagee, or by those claiming under him subsequently to the lien of the plaintiff's mortgage, the referee shall sell the mortgaged premises in parcels, in the inverse order of their alienation ; and according to the equitable rights of the parties as such subse- quent grantees or incumbrancers, as such rights shall be made to appear to the referee. 1 Ba/rh. Ch. R. 354 ; 9 Paige, 648 ; 2 Corns. 289. The owner of the equity of redemption in a part of the mort- gaged premises has a right to insist that the whole of the plain- tiff's incumbrances thereon, shall be ascertained, and settled by the judgment ; in order that he and the other owners of the equity of redemption may, if they think proper, pay off the plain- tiff's incumbrances, and prevent the necessity of a sale, if none of the other defendants have specific liens upon the premises.' 10 Paige, 396. The referee appointed to sell the premises must be selected by the court ; and the court is prohibited from appointing as referee a person nominated by the party to the action, or his counsel. Svp. Court Pules, No. 72. \ CH. XL] rOBECLOSURE BY ACTION. 307 The proceedings on entering the judgment, and the manner of making up the judgment roll, are the same as in other actions. Code, § 281 ; 1 Van Sant. Pr. 135-139. If the costs have been taxed on notice, the amount thereof should be entered in the blank left in the judgment for that purpose; or, they, maybe taxed and entered instanter in the judgment, and notice of re- taxation given. If the defendants have not appeared in the action, the costs may be taxed eat-parte, and entered at the time of enrolling the judgment. 2 Id. 92, 96. A copy of the judgment certified by the clerk, should be obtained for the use of the referee or sheriff making the sale ; and the expense of making which may be taxed as a prospective dis- bursement, li. Payment of amount due, and hringing money into court.'] The statute provides that where an action is commenced for the satisfaction or foreclosure of any mortgage, upon which there shall be due any interest, or any portion or installment of the principal, and there shall be other portions or installments to become due subsequently, the action is required to be dismissed, upon the defendant's bringing into court, at any time before the judgment of sale, the principal and interest due, with costs. 2 Pev. Stat. 192, sec. 161. The practice is not very clearly defined imder the above pro- vision of the statute ; but it seems sufficient within the language of the statute for the defendant to pay into court the principal and interest due, with the costs. The costs include the right to an extra allowance; and a tender before judgment will not defeat the right of the plaintiff to such allowance. 3 Abb. 173 ; 9 Bow. 398 ; 16 Id. 60, 364. Upon the payment of the amount due with the costs to the clerk of the court, the defendant will be entitled to an order dismissing the complaint ; and if neces- sary, an order will be allowed staying the plaintiff's proceedings to enable the defendant to make a motion tor that purpose. Or, it seems, the defendant may offer to pay the amount due upon the mortgage, and such costs as he may think proper, and upon a refusal to accept the amount, he may apply to the court for leave to pay the amount due, with such costs as the court, in its discretion may allow; and the court would entertain the application, and permit the payment, fixing the costs ; and upon 308 FORECLOStJEE BY ACTION. [CH. XI. the payment being made, order a discontinuance or stay of the action, as may be proper. 16 How. 366, jper Marvin, J. ; and see- 14 Id. 572, s. c. 5 AU. 389; 6 Id. 94 The statute also provides, that if, after a judgment for sale, in a case where only a portion of the mortgage is due, and there are installments to become due subsequently, the defendant shall bring into cour tthe principal and interest due, with the costs, the proceedings in the suit shall be stayed. 2 Rev. Stat. 192, sec. 162. But the court is required to enter a decree of foreclosure and Bale, to be enforced by a farther order of the court, upon a sub- sequent default in the payment of any portion or installment of the principal, or of any interest thereafter to grow due. Ih. Tender of amownt due., and staying proceedings.]^ If the defendant tenders the amount due upon the mortgage to the plaintiff before the action is commenced, the plaintiff's proceed- ings will be irregular, and will be stayed on application to the court. The tender, in such case, discharges the lien, though made after the law day ; and it is unnecessary to show a con- tinued readiness to pay, or to bring the money into court. 21 Ifew York 343, reversing 23 Barl. 490; and see 21 Wend. 469, 472, 473 ; 26 Id. 545. And so, if the mortgagee has kept out of the way to prevent a tender of the amount due, and subsequently commences an action to foreclose his mortgage, the proceedings will be stayed, upon the payment of the amount due, without costs, although a technical right of action existed at the commencement of the suit. 7 Paige, 179 ; and see 6 Barl. 258 ; 25 Wend., 405 ; Liv. Law Mag., 1854, vol. 2, p. 68. In like manner, if the mortgagee has taken advantage in any way of the mortgagor, or there has been, a mistake, injurious to the latter, of which he should have been advised by the mort- gagee, the court will dismiss the plaintiff's proceedings. 15 How. 434. In the case cited, the defendant was relieved by the court from the payment of the principal sum secured by the mortgage, the same having become due by the terms of the mortgage, by rea- son of the defendant's omission to pay the interest within the time specified therein ; the mortgage containing a clause making the principal due immediately, at the option of the plaintiff, in CH. XL] FOEECLOSUEE BY ACTION. 309 case of a default in the payment of the interest at the time it is due, and the same remaining unpaid for twenty days. Where the defendant, however, fails through his own negli gence to pay the interest upon the mortgage, by reason whereof, according to the terms of the mortgage, the whole debt becomes due and payable, and there is no trick or other improper conduct on the part of the plaintiff, the court wUl not interfere to relieve the defendant, without a payment or tender of the whole debt and costs. 7 Paige, 179 ; 16 How. 102 ; 3 All. 204. In a case where the defendant is entitled to stay the plaintiff's proceedings on the foreclosure of a mortgage containing the usual interest clause, it seems, he should offer to pay the interest accrued, and upon its refusal, \rith a proper excuse for the original default, apply to the court for an order staying the pro- ceedings. 5 All. 389, s. 0. 14 Hmo. 572 ; 6 All. 94, 96. Where tenants in common unite in giving a mortgage to secure their joint debt, the mortgagee is entitled to a sale of the whole premises on foreclosure, and is not bound to receive a tender of one-half the debt from one of the mortgagors, although he tender at the same time a sufficient bond of indemnity against eventual loss. 3 Sand. Ch. JR. 188. After the sale of the premises, the mortgagor's equity of re- demption is cut off; and a tender of the amount due, with the costs of the action, wiU avail nothing. 10 Paige, 243. Sale of the mortgaged premises.] The plaintiff" having duly entered his judgment, is entitled to proceed, and have the mort-' gaged premises sold for the payment of his debt. The sale must be made by or under the directions of the sheriff of the county where the premises are situated, or by a referee appointed for that purpose, according to the judgment, {a) And the sheriff or referee may employ an auctioneer merely to conduct the sale in his presence. 2 Barl. Ch. Pr. 526. The power of the officer, to go on and and make a sale of the premises in pursuance of the judgment of the court, is not affected by the death of the plaintiff in the action, after a regular judgment entered. 21 How. 34, s. c. 12 All. 286. If the mortgaged premises are situated in the city of New York, they are required to be sold at public vendue, at the (a) In the city and county of New York, the sale may now also be made by the sheriff, or by a referee. Lams 1874, ^. 313, amending Lawi 1869, ch. 569, post. Vol. I.— 33 310 FOEECLOSURE BY ACTION, [CH. XI Merchants' _Excliange salesroom, No. Ill Broadway, between twelve o'clock at noon and three in the afternoon, nnless other- wise specially directed by the court. Supreme Court Rules, No. Y3. If the lands are situated in any other part of the State, the sale must in like manner be at public vendue, but between the hour of nine o'clock in the morning and the setting of the sun. 2 Eev. Stat. 369, sec. 36 ; li. 192, sec. 157. The sheriff or referee should prepare a notice of the time and place of sale, in which notice the real estate to be sold should be described with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there be any, and if there be none, by some other appropriate description. Ih. sec. 35. And in the description care must be taken not to add any particulars which may unduly enhance the value of the prop- erty, or mislead the purchaser. 3 Podge, 97. In other respects,- there is no rule or law prescribing the form of the notice ; and, therefore, it is not absolutely necessary that the title of the cause should be inserted in the notice. It is proper, however, to in- sert such title in the notice, by stating the names of the first plain- tiff and of the first defendant at length, and adding the words, " and others," where there are several plaintiffs or defendants, for the purpose of attracting to the notice the attention of those who may be interested. 1 Bovrb. Ch. Pr. 526 ; 6 Paige, 489. The notice of the sale of lands, lying in any of the cities of this State, in which a daily paper is printed, except where a dif- ferent notice is required by the order or judgment of the court, must be published in one or more of the daily papers of that city for three wefeks immediately previous to the time of sale, at least twice in each week. Sup. Court Rules, No. 73. If the lands are situated in any other part of the State, the notice of sale must be given for the same time and in the same manner as is required by law on sales of real estate by sheriffs on execution. lb. ; 2 Rev. Stat. 368, sec. 34. The time and place of holding any such' sale, therefore, must be publicly advertised, previously, for six weeks successively, as follows : 1. A written or printed notice thereof must be fastened up in three public places, ia the town where the real estate is to be sold ; and if such sale be in a town different from that in which the premises to be sold are situated, then such notice must also be fastened up in three public places of the town in which the premises are situ- CtL. XI.] FOEECLOSUEE BY ACTION. SH ated. 2. A copy of sucli notice must be printed once in each week in a newspaper of such county, if there be one. 3. If there be no newspaper printed in such county, and the premises to be Bold are not occupied by any person against whom the execution is issued, or by some person holding the same as tenant or purchaser ander such person, then such notice shaU be published in the State paper, once in each week. Ih. If the time fixed in the notice for the sale is allowed to pass, and no valid sale is made, or if valid, and the party elects to dis- regard it, the officer cannot again sell without an order of the court, except by again advertising the sale. An order of the court will be unnecessary, if he advertises as before; and the resale will be valid, if legally conducted in other respects. 23 Bow. 486. Before the time of sale, the attorney for the plaintiff should prepare a statement of the conditions of sale. This is usually annexed to the notice of sale, and therefore need not describe the nature and situation of the property ; but it should specifj^ the terms and conditions of the sale', the time of payment of the pur- chase money, whether there is to be any deduction for taxes and assessments, &c. 1 Barb. Ch. R. 52Y. Where the person prose- cuting the foreclosure announced in the statement thus prepared that the premises were subject to a prior mortgage of $3000, and "also a mortgage of $700," and became himself the purchaser; it was held, that he was estopped from contesting the priority of both mortgages. 3 Duer, 206, 223. In conducting the. sale of the premises, it is the duty of the officer, at the time and place of sale, 1st. To announce the terms of sale, if they are not contained in the notice of sale. 2d. To offer the premises to the highest bidder, and receive bids so long as they are offered, waiting a reasonable time after a bid is made for another, and if no other is made, to strike off the premises to the highest bidder. 3d. After marking down the premises to the highest bidder, to require him to sign a memorandum of the sale, and agreeing to complete the same ; and 4th. If at the time ap- pointed for the sale, there are no bidders, or if from the numbers in attendance, or other sufficient cause, the officer is satisfied that a fair price cannot be obtained, it is his duty to postpone the sale, and not sacrifice unnecessarily the property. 23 How. 487, per MuUin, J. 312 lOAECLOSUEE BT ACTION. [CH. XL In respect to the order in which the s&le should be conducted where the premises consist of several distinct parcels, 'the officer should, of course, foUow the directions contained in the judg- ment, or any subsequent order of the court. 3 How. 110. In the absence of any such directions, the 74:th rule of the Supreme Court wiU control the officer. That rule provides, that where the mortgaged premises consist of several distinct lots or parcels, which can be sold separately without diminishing the value thereof on such sale, it shall be the duty of the sheriff, or other person conducting the sale, to sell the same in separate lots or parcels, unless otherwise specially directed by the court. But if the sheriff or other person is satisfied the property will pro- duce a greater price if sold together, than it will in separate lots or parcels, he may sell it together, unless otherwise directed in the order of sale. See, also,' 2 ^ctl Stat. 369, sec. 38 ; 9 Paige, 259 ; 7 Abb. 183; 3 Id. 457 ; 13 How. 556 ; 16 Id. 417; 1 Barb. CL Pr. 525-530; 1 Van Sant. Pr. 549, 560 ; 2 Id. 99. The last clause of the rule (Rule 74) was intended only to provide for special cases ; as, where it is evident that the several parcels of real estate, from their peculiar location in reference to each other, will be more valuable if owned by one person than if owned by different individuals in severalty; or, where, in consequence of some prior incumbrance upon all the parcels, purchasers will not be likely to bid upon a portion only of the property, subject to such a general incumbrance. 9 Paige, 299 ; 23 How. 385. So, though the officer, under ordinary circumstances, should Bell only sufficient to raise the amount due upon the mortgage, if the mortgaged premises are susceptible of a division; yet where the foreclosure was instituted merely to carry out a pre- vious agreement with a person claiming the premises, for a sale of the whole of the premises, and with a view of obtaining title thereto ; it was held that the officer was justified in rejecting an application to sell in parcels, and could sell the whole; and the facts appearing to the court upon an application for a resale, the application was denied. Clarke, Oh. P. 217. And where the mortgaged premises lay together, contiguous and adjoining, and appear to have always been controlled by a single person, the officer may, in the exercise of a sound discre- tion, sell the premises together, or in parcels. 25 How. 403. CH. XL] FORECLOSURE BY ACTION. 813 Nor has tlie plaintiff the right to control the officer conducting the sale, in relation to the order of the sale of the different par- cels of the mortgaged premises. 11 Paige, 71. But where the premises consisted at the time of the execution of the mortgage, as well as at the time of the sale of several par- cels, distinctly marked by separate use, it is the duty of the offi- cer conducting the sale, to sell them separately, except in the special case provided for in the last clause of the 74th rule, above mentioned. And if the officer, in such case, declines to conduct the sale in that manner, after being requested to do so, it is a sufficient reason for ordering a resale, unless it be shown that the case comes clearly within the exception mentioned. 23 Id. 386. The premises being struck off to the, highest bidder, the pur ■ chaser is to sign an acknowledgment, which is written under the conditions of sale, to the effect that he has purchased the premi- ses on those conditions, for the sum bid by him, and agreeing to conform to such conditions. 1 £arh. CL Pr. 528. It is not essential, however, to the validity of the sale, that such memo- randum be signed by the purchaser. It is sufficient to make the sale valid under the statute of frauds, that the memorandum is signed by the officer. And if it is not so signed, the sale ia invaKd. 23 How. 486. ]SIo order to stay the sale of the mortgaged premises can be granted or made by a judge out of court, except upon a notice of at least two days to the plaintifFs attorney. Swp. Court Euhs, No. 80. For further on the subject of a sale of the mortgaged premises, see infra, under the head, " When sale will be s^t aside ;" and see, also, 1 Barl. Ch. Pr. 526, 528 ; 1 Tan Sant. Pr. 549- 660; 2 Id. 99. When sale will be set aside.] The biddings at the sale of the mortgaged premises will not be opened except in very special cases; and not then, even, tmless the purchaser is fully and liberally indemnified for all damages, costs, and expenses to which he has been subjected. 2 Paige, 99. In the case cited, the premises had been struck off for $2025, no conveyance had been executed, and the petitioner offered an advance of fiily per cent, on the purchase for the benefit of infant defendants, and S14 FORECLOSURE BY ACTION. [CH. XL alleged that the property was worth more than $4000. The chancellor ordered a resale, upon security satisfactory to the master, that the premises should actually produce an advance of fifty per cent, upon a resale, or a deposit with the master of the advance offered. And this, upon the ground that the property sold, was the sole dependence of two infant children, and had been sacrificed either through the misapprehension or negligence of their mother and step-father ; the chancellor expressly stating, that " if the defendants were adults, and the property had been sacrificed by their own negligence or inattention, he would not disturb the sale." Ih. 101 ; and see 9 Id. 259 ; 16 How. 41. Nor is mere inadequacy of price a sufficient ground for depriv- ing the vendee of the benefit of his purchase, unless the inade- quacy is so great as to be evidence of fraud or unfairness in the sale. Ih. and see 25 Row. 403 ; 26 Wend. 143. Ifor a want of knowledge of the time and place of sale, on the part of one who was a party to the action. 30 New York, 80. But the parties ipterested in the property have a right to expect that it will be put up and sold in the usual manner, and in a way to produce a fair competition among the persons attending the sale to bid upon the property. And where, by the neglect or mistake of the officer conducting the sale, the legal requirements on the sale have not been complied with, and the property has thereby been sacrificed, or where he has improperly put up several lots together, which should have been sold separately, the parties injured are entitled to a resale ; or to such other relief as can be granted, without doing injustice to a bona fide purchaser. 9 Paige, 259; 23 How. 385. And a sale will be opened, also, where judgment creditors are prevented from attending and bidding at the sale, in consequence of an impression received from the officer conducting the sale that the sale will not take place on the day appointed ; although there is no collusion be- tween the officer and the purchaser; provided the judgment creditors ofifer to make an advance at the resale, upon the former bid, to an amount sufficient to cover their demands. 13 Wend. 224 ; and see 19 How. 79 ; 3 Johns. Ch. 290 ; 1 Barb. Ch. Pr. 539. And so, a resale will be ordered where there has been any undue advantage taken to make the property sell for less than its value ; or any trick or fraud practiced by which the property has been sacrificed, or made to bring less than it otherwise would CH. XI.] FOEECLOSUEB BY ACTION. 315 have brought. But the proof, showing such fraud or improper conduct, must be established beyond a reasonable doubt. 25 How. 403. The plaintiff having bid off a portion of the premises on the foreclosure sale, is not at liberty to refuse to consummate the sale, or revoke his bid, and direct the sheriff to resell the same parcel with other lands ; and if the sheriff, following such directions, does resell the same, the sale will be set aside, as irregular. 8 Id. 117. And so, the sale wiU be set aside, where the owner of the equity of redemption appealed in good faith from the, judg- mjent of foreclosure ; but owing to imperfect justifications of his sureties in the undertakings on the appeal, the sale was not stayed, and the plaintiff proceeded and gold the premises without notice to the owner or return of the undertakings, bidding off the same himself, for one-third less than their value, and taking judg- ment against the owner for the deficiency. 24 Id. 440. The effect of opening the biddings is to render invalid the title of the purchaser and his grantees. 15 Ahh. 468. The pur- chaser will be entirely discharged Irom his purchase ; and if he has paid any portion of the purchase money, he will be entitled to have it repaid to him. If he is the purchaser of several lots, and the biddings are ordered to be opened as to one or more of the lots first purchased, he will be allowed to have the biddings opened, and to be discharged from his purchase as to all the lots. But to entitle him to that indulgence, he should appear upon the motion to open the biddings, and produce an afiidavit that he had bid for the subsequent lots in consequence of his having been declared the purchaser for the first lots, 1 Barh. Ch. Pr. 53Y. The application for a resale should be made before the sheriff's or referee's report of the sale has been confirmed, though, under very special circumstances, the court may perhaps be induced^ to set the sale aside and order a resale, after confirmation of the report. Ih. 541. The remedy of the party entitled to relief is by way of motion, addressed to the discretion of the court to open the bid- dings, and for a resale. And if the party is allowed to come in at all, it will be only on terms. 30 Nev) York, 80. If a resale is ordered, the subsequent proceedings will be the same as those upon the original sale. 1 Ba/rb. Ch. Pr. 541. 316 rOKECLOSUEE BY ACTIOK. [CH. XI. For farther on the subject of opening bids and directing a resale of the mortgaged premises, see 1 Van Samt. Pr. 55Y, 559 ; 1 Barb. Ch. Pr. 537, 541. Compelling purchaser to taJce the property.] If, the purchaser refuses or neglects to pay the purchase money and take the title, or otherwise comply with the terms of the sale, he may be com- pelled to do so by the order of the court. But the purchaser will be excused from completing his pur- chase where the court had no jurisdiction of the subject-matter of the action, or had acquired none over all the persons interested in the property sold ; or where some statutory provision has been violated or neglected, which renders the proceedings iavalid. 4 Samd. S. C. R. 468. Thus, he will not be compelled to complete his pm'chase where a tenant in common of the mortgaged premises has not been properly served with process. 21 How. 286. Nor in a ■ partition suit where an infant has been made a defendant, but no guardian ad litem has been appointed, nor order for appearance entered, nor bill taken as confessed against him; even though the defendant may since have attained his majority, and offers to release his interest ; the decree being so far irregular as to be incapable of enrollment. %Ednjo. Ch. R. 69; 1 Barb. Ch. Pr. 533. Nor will the purchaser be compelled to complete his purchase where he buys the property under a mistake as to its condition, 8 Paige, 337 ; nor where he will not obtain such an interest in the premises, and in the buildings thereon, as he had a right to suppose he was purchasing from the terms of the sale, Id. 656 ; nor where, by the fault of the parties, the completion of the sale has been delayed so long that he cannot have the benefit of his purchase, substantially, as if the sale had been completed at the time contemplated by the terms of sale, 7 Id. 386 ; nor where the con- tract is unreasonable, 2 Barb. Ch. Pr. 534 ; nor where, by mistake the purchaser has given an unreasonable price for the property. lb. But the purchaser wiU not be discharged because the judg- ment was erroneous ; nor because the court decided wrong upon a point affecting the merits of the controversy. 4 Sand. 8. C. R. 468. Nor can the purchaser object to the mere form of the pro- ceedings ; nor to irregularities in matters of practice. lb. Nor on the ground that an appeal is pending from an order denying a motion to set aside the judgment on which the sale was had, CH. XI.] FOBECLOSUEE BY ACTION. 317 12 Ahb. 4:73 ; nor because a suit is pending between the same parties to set aside the mortgage ; nor, the premises being lease- hold property, because the ground rent is iu arrear and the lessors have given notice of intention to reenter for non-payment of the rent. II. ; and see 1 Ba/rb, Oh. Fr. 532-535. If the purchaser refuses to perfect his purchase, and the plain- tiff does not press him, the oflScer conducting the sale should sell the property over again, and not let the plaintiff take it at the purchaser's bid and receive the deed. 3 Edw. Oh. R. 298. Conveyance iy sheriff or referee.^ In ordinary sales of real estate, the contract of sale is not regarded as complete, nor the purchaser entitled to a conveyance thereot^ until the report of the sale is confirmed absolutely. But on the sale of premises on foreclosure, the deed may be executed and delivered prior to the order confirming the sale. Code, % 287 ; 21 How. 36, s. c. 12 All. 286. The conveyance is usually, however, postponed for a short time, to be fixed in the written conditions of sale, the purchaser paying down a portion of the purchase money, also specified in the conditions, as a deposit. The deed takes efiect on delivery and before the order con- firming the report is entered ; and it divests the title as of the time of the sale. 4 Hill, 171 ; 6 Barl. 60 ; 1 Seld. 151. The purchaser may assign his bid to a third party before the execution of the deed ; and the court, upon the application of the assignee, may direct the execution of a conveyance directly to him ; subject to the intervening equitable rights of other persons as against the original purchaser. 5 Paige, 614. But before the deed is executed to the purchaser, it is the duty of the plaintiff to file the mortgage which has been fore- closed, in the office of the clerk, imless such mortgage has been duly proved or acknowledged, so as to entitle the same to be re- corded, in which case, if it has not already been done, it is the duty of the plaintiff to cause the same to be recorded, at full length, in the county or counties where the lands are situated. Su/p. CouH Rules, ^o. 75. The expense of the filing or record- ing, and the entry thereof, will be allowed in the taxation of the costs; and, if filed with the clerk, he is required to enter in the minutes the filing of the mortgage, and the time of filing. II. 318 FOKECLOSTJRE BT ACTION. [CH. 21. But the rule does not extend to a case where the mortgage appears, by the pleadings or proof in the suit commenced there- on, to have been lost or destroyed. 11. The court wUl not direct the deed to be delivered to the purchaser until the entire purchase money is paid, although a portion of the money which is not paid in may belong to the pur- chaser, as surplus money, and have to be shortly retui'ned to him. 23 Row. 383. If the deed is not ready to be delivered at the time fixed for that purpose, the remedy of the purchaser is by motion for leave to pay the money into court, or to compel the completion of the sale. 5 Sand. 448. Referees or sheriff'' s report of sale.\ The referee or sheriff, afler disposing of the mortgaged premises according to the direc- tions of the judgment, must make his report of the sale. The report is a history of his proceedings, and should show that every direction given in the judgment had been carried out. It contains a statement of his own fees, expenses for advertising, &c., and should have annexed to it the receipts and vouchers taken on the payment of the various sums directed by the judg- ment to be paid, as well as on the deposit of the surplus moneys. For form, see Appendix, No. 187. The report should be filed, and a note of the day of filing entered by the clerk in the proper book, under the title of the cause ; and the report will become absolute, and stand as in all things confirmed, unless exceptions thereto are filed and served within eight days after service of notice of filing the same. Sup. CouH Rules, No. 32 ; 1 Barl. Ch. Pr. 529. Eut no report of sale can be filed or confirmed, unless accom- panied with a proper voucher for the surplus moneys, and show- ing that they have been paid over, deposited, or disposed of, in pursuance of the judgment. Sup. Court Rules, No. 72. Effect of the sale.l After the sale of the mortgaged premises, deeds are required to be executed by the officer conducting the sale ; which shall vest in the purchaser the same estate (and no other or greater) that would have vested in the mortgagee, if the equity of redemption had been foreclosed ; and such deeds shall be as valid as if the same were executed by the mortgagor and CH. XI.] FORECLOSURE BY ACTION. 819 mortgagee, and shall be an entire bar against eacLi of them, and against all parties to the snit in which the decree for such sale was made, and against their heirs respectively, and aU claiming nnder such heirs. 2 Em). Stat. 192, see. 158 ; 12 Abb. 473 ; 3 Sand. S. C. 383. And the deed is a complete bar of the equity of redemption, though the mortgagee become the purchaser. 9 Cowen, 346. But the bar against all parties to the suit, mentioned in the statute, refers only to those parties who are properly made parties to the action, viz. : the mortgagor and mortgagee and subsequent incumbrancers, and to such rights as are properly the subject of litigation in the action. It does not embrace rights of parties which have not been subjected to litigation by the form or sub- stance of the pleadings in the cause; and which are paramount to the rights of the mortgagor and mortgagee, wind, therefore, a widow's claim of dower in the premises is not barred by fore- closure and sale under a mortgage executed by the husband alone during coverture, although the widow was made a party to the action, and the bill, which was taken as confessed against her, alleged in pursuance of the 132d rale of the late Court of Chan- cery, that she claimed some interest in the premises " as subse- quent purchaser or incumbrancer, or otherwise." 5 Seld. 502, affirming 11 Barb. 153. The foreclosure, as we have seen, is a bar only to those who were made parties to the action, and their heirs, and those claim- ing under them. 2 B&o. Stat. 192, sec. 158. And where a mort- gage was foreclosed without joining the holder of a subsequent mortgage upon the same premises, whose title appeared of record ; and on the sale under the foreclosure, the first mortgagee purchased the property and received the rents and profits, it was held as to the second mortgage, he merely became mortgagee in possession, and was liable to account for the rents and profits, and that the utmost efiect of the foreclosure and sale was to trans- fer the equity of redemption from .the mortgagor to the plaintiff in the action. 13 Abb. 33. The foreclosure and sale is binding upon an assignee in bank- ruptcy under the act of 1841, who has notice of a suit pending against the bankrupt to foreclose the mortgage, although he was not made a party to the action. 24 N'ew Norh, 613. And the sale, where the court has jurisdiction, passes the title 320 FOBECLOSUEE BY ACTION". [CH. XT. to tlie purchaser, even tHough the judgment should afterwards be reversed or set aside for error or irregularity, on appeal. 12 AU. 473. The deed will not pass a greater interest than is authorized by the judgment, although it in terms includes premises men- tioned in the mortgage, but which were subsequently released from the operation thereof. 32 Sarh. 347. In respect to the rents of the mortgaged' premises accruing, or becoming payable, between the day of the sale and the time when the purchaser will be entitled to the possession of the prem- ises, these belong to the owner of the equity of redemption, and not to the purchaser at the. sale. 11 Paige, 436. Proceeds of sale, and disposition thereof.'] The statute re- quires the proceeds of every sale made under the judgment of the court, to be applied to the discharge of the debt adjudged by the court to be due, and of the cotets awarded ; and, if there shall be any surplus, the same is required to be brought into court for the use of the defendant, or of the person who may be entitled thereto, subject to the order of the court. 2 Rev. Stat. 192, sec. 159. By rule 72 of the Supreme Court, also, the judgment is re- qiiired to direct that the sheriff or referee conducting the sale, pay to the plaintiff or his attorney, out of the proceeds of the Bale, the amount of his debt, interests, and costs, or so much as the purchase money will pay of the same, and that he take the receipt of the plaintiff or his attorney, for the amount so paid, and file the same with his report of sale. The same rule, also, requires all surplus moneys arising from the sale of mortgaged premises, under any judgment, to be paid by the sheriff or referee making the sale, within five days after the same shall be received, and be ascertainable, in the city of JSTew York, to the chamberlain of that city, and in the other counties, to the treasurer thereof, unless otherwise specially directed, subject to the further order of the court. And the report of sale cannot be filed or confirmed unless accompanied with a proper voucher for the surplus moneys, and showing that they have been disposed of according to the direc- tions of the judgment. Ih. If the surplus moneys, or any part thereof, remain in 30urt for the term of three months, without being applied fcr, en. XI.] FORECLOSUEE BY ACTION. 321 the court is required to direct tte same to be put out at interest, under its direction, for the benefit of the defendant, his repre- sentatives, or assigns, to be paid to them by the order of the court. 2 Rev. Stat. 192, sec. 160. Proceedings on claims for swrpT/us moneys.] It is provided by rule 76 of the Supreme Court, that on filing the report of the sale, any party to the suit, or any person who had a lien on the mortgaged premises at the time of the sale, upon filing with the clerk where the report of sale is filed, a notice stating that he is entitled to such surplus moneys, or some part thereof, and the nature and extent of his claim, may have an order of refer- ence, to ascertain and report the amount due to him, or to • any other person, which is a lien upon such surplus moneys, and to ascertain the priorities of the several liens thereon ; to the end that, on the coming in and confirmation of the report on such reference, such further order may be made for the distribution of Buch surplus moneys as may be just. Every party who appeared in the cause, or who shall have filed such notice with the clerk, previous to the entry of the order of reference, is entitled to service of a notice of the application for the reference, and to attend on such reference, and to the usual notices of subsequent proceedings relative to such surplus. But if the claimant has not appeared^ or made his claim by an attorney of the Supreme Court, the notice may be served by put- ting the same into the post-office, directed to the claimant, at his place of residence, as stated in the notice of his claim. lb. The liens referred to in rule 76, are those which subject the estate to be sold under execution, without any further interven- tion of the court. Claims, however equitable, which are not matured into liens, under which the property can be charged in execution, and sold without further adjudication, cannot be taken into consideration by the referee. 10 Row. 333, per Clerke, J. Though it is otherwise, it seems, in reference to the wife's incho- ate dower interest, where she has joined her husband in execut- ing the mortgage^ containing the usual power of sale, and reserv- ing to the mortgagors the surplus after payment of the mortgage debt. Where there is such surplus, it has been held, she is en- titled, as against judgment creditors, to have one-third of the amount invested for her benefit, and kept invested during the 322 FORECLOSURE BY ACTION. [CH, XL joint lives of herself and her husband, and during her own life, in case of her surviving her husband, as and for her dower in such surplus moneys. 8 Barb. 619. A junior judgment against the owner of the equity of redemp- tion, if obtained before a sale of the premises, is an equitable lien upon the surplus moneys produced by the sale ; though otherwise, it the judgment was docketed subsequent to the sale. 6 Paige, 355, In respect to the priority of liens as between different cred- tors or claimants, it has been held that an unrecorded mortgage takes precedence over a subsequent judgment, 30 Barb. 269 ; 4 Johns. 216; 3 Edw. Ch. R. 652; and a junior mortgage over prior judgments, 1 Barb. 8. C. It. 280; 4 Mow. 219; and a prior judgment confessed by two of three partners, over a subse- quent judgment against the three partners. 31 Barb. 290. And BOj a judgment creditor who has made his lien specific by pur- chasing under his own judgment, will be preferred over junior judgment creditors who have not sold under their judgments. 4 Id. 125. So, a subsequent specific lien will be preferred to a prior general one, where the latter may be enforced out of other property of the judgment debtor ; but not where there is no other fiind to pay the general lien. 1 Id. 271. Any person who is not a party to the action, may apply to the court for the surplus moneys in the same manner as if he were a party., Lanes of 1840,^. 287, § 10. And the plaintiff, also, has the same right to present and estab- lish a claim to the surplus moneys, as a defendant in the suit, or any other person ; and he . need not establish beforehand all the claims he may have upon the mortgaged premises. 9 How. 75. The practice in the proceedings before the referee is similar to the former practice in chancery, and is founded on rule 76 above quoted, which, with some slight modifications, is similar to the provisions of the 136th rule of the late Court of Chan- cery. Under the rule, in chancery, referred to, the party prosecut- ing the reference was required to produce before the master a cer- ^tificate of the officer with whom the report was filed and the sur- plus money deposited, showing that no notice of claim to such surplus was annexed to the report of sale, and that no claim to the same had been filed previous to the entry of the order of ref- erence; or if claims had been filed, stating the names of the CH. XI.] FOEECLOSUEE BT ACTION. 323 claimants, and of their solicitors, if any, and their places of resi- dence. 8 Pai^e, 651. And before the master proceeded to make his report as to such surplus moneys, he was required to aseertaiu, by the proper certificate and other evidence, that all claimants and other proper parties have been notified or summoned to attend before him on such reference. And the fact that such certificate and evidence was produced before him, was required to be stated in the report. Ih. An incumbrancer who had neglected to file a notice of his claim, under the rule, could appear before the master pending the reference, and file his claim with him, duly verified; and he would then be entitled to be heard upon the reference as to the validity of the claim, upon such equitable principles as to costs, as the master should direct. Ih. ; 2 Barb. Ch. S. 556. And claimants, before the master, were required to verify their claims ; and the master was authorized to examine the claimants upon oath, touching their respective claims. 8 Paige, 651; a/iidsee iBarb. Ch. Pr. 523. The 136th rule, referred to, provided in respect to costs on the reference, that any person making a claim to the surplus moneys, upon a sale of mortgaged premises, and who shall fail to establish his claim on the reference before the master, may be charged with such costs as the other parties have been subjected to by reason of such claim. And the parties succeeding on the reference, may be allowed such costs as the court may deem reasonable ; but no costs unnecessarily incurred on such refer- ence, or previous thereto, by any of the parties, shall be allowed on taxation, or paid out of such surplus. Ih. ; and see 11 Barh. 350. No allowances can be made for a percentage on the amount, under the 308th section of the Code; but the court will, nevertheless, iu a proper case, allow to the parties a suitable compensation for costs and disbursements, to be paid out of the funds. 12 Ahh. 458, 461. Report of referee in respect to surplus moneys.] The referee, hav- ing determined the amount of the several liens established before him, and their priorities, and the order in which they are entitled to be paid, must report the facts to the court. It is not necessary to return the evidence taken before the referee ; but if exceptions 324 FOBECLOSUEE BY ACTION. [CH. XI. to the report are taken and filed, a copy of the evidence may be obtained from the referee, if n'ecessary, for use on the argument, as in other cases. 2 Van Sunt. Pr. 104. The report should state the parties that appeared on the jrefer ence ; and that all persons entitled to appear before the referee were duly notified. 11 Paige, 129. s. c. 3 N. Y. Leg. Ob. 162. It should, also, show the amount of the surplus. And if the party obtaining the reference is not entitled to the whole of such moneys, the referee should ascertain and report who is entitled to the residue ; so that upon the coming in of the report, an order may be made disposing of the whole of the fand in court. Ih. The mortgagor, or person owning the equity of redemption in the mortgaged premises, is prima facie entitled to the surplus moneys. And if no person attends before the referee and pro- duces evidence of a better right, the referee should report that such surplus, or the oalance thereof remaining unclaimed, belongs to him. lb. Filing report and order of distribution.'] Upon the coming in of the report, the same should be filed, as in other cases, and the report will become absolute, and stand as in all things con- firmed, unless exceptions thereto are filed and served within eight days after service of notice of the filing the same. xSwp. Court Bules, Ifo. 32. It is recommended, however, in such cases, to obtain an order of confirmation, to be used on the motion for the farther order of distribution. lb. 76 ; 2 Van Sant. Pr. 104. But if this is not done, the certificate of the clerk that no exceptions have been filed within the time fixed by the rule (thus showing that. the report stands confirmed) should be produced on the application for the further order of distribution. lb. The application for the order- of distribution (at least where there are contesting or other claimants) must be made, on notice, at special term, and cannot be made until the report has become absolute, and stands confirmed. If there is a single claimant, entitled to the whole surplus, so that no others would have the right to except, the order of confirmation and for the payment of the surplus, may be entered together, and without notice. lb., citing Edw. on Ref. 297, 301 ; and see 8 Paige, 611. CH. XI.] FORECLOSURE BY ACTION. 325 The order establishes the several liens and their priorities, and directs the order of judgment, and the payment of costs, •when allowed, fixing the amount thereof. A certified copy of the order authorizing the payment, coun- tersigned by the justice by whom the order was made, must be produced to the treasurer, or other person, or bank, having the money, in order to obtain payment thereof. Sup. Court Rules. No. 83. Execution for defieiency.'\ The statute provides, that when a bin is filed for the satisfaction of a mortgage, the court shall not only have power to decree and compel the delivery of the possession of the mortgaged premises to the purchaser thereof, but on the coming in of the report of sale, the court shall also have power to decree and direct the payment by the mortgagor of any balance of the mortgage debt that may remain unsatis- fied after a sale of the premises, in the cases in which such balance is recoverable at law ; and for that purpose, may issue the neces- sary executions, as in other cases, against other property of the mortgagor, or against his person. 2 Sev. Stat. 191, sec. 152 ; Code, § 167, as amended 1863. And the court may make a con- tingent decree for the payment of such deficiency, if there be any, previous to the sale, and without waiting for the coming in and confirmation of the report of sale. 8 Paige, 480. The statute further provides that if the mortgage debt is secured by the obligation or other evidence of debt of any other person besides the mortgagor, the plaintiff may make such per- son a party to the action, and the court may adjudge payment of the balance of such debt remaining unsatisfied, after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce the judgment, as in other cases. Code, § 167, as amended 1863 ; 2 Bev. Stat. 191, sec. 154 ; 15 Ahb. 106, 109. The provisions of the statute, above mentioned, do not extend to a case where the plaintiff has no right to come into court to foreclose the mortgage as against the interest of any one in the mortgaged premises, or any part thereof. 1 Barb. Ch. B. 186. But the report of the referee must be filed and confirmed be- fore execution can issue ; and it is not sufficient to authorize the Vol. 1—24 326 POEECLOSUEE BY ACTIOK. [CH. XI. issuing of an execution for tlie deficiency, that tlie report is merely filed. 2 Barb. Ch. Pr. 185. , Proceedings m cases of sale of a portion of the premises, a part only of the debt being due.] Where a portion of the debt is not due, and the judgment directs so much of the mortgaged premises to be sold, as will be sufficient to pay the amount then due on the mortgage with costs, and there has been a sale of such separate portion, the judgment will remain as security for any subsequent default. 2 Bev. Stat. 193, sec. 163. And if, in such case, there shall be any default subsequent to the judgment, in the payment of any portion or installment of the principal, or of any interest due upon such mortgage, the court will, on the petition of the plaintiff, by a further order founded upon the first judgment, direct a sale of so much of the mortgaged premises, to be made under the judgment, as will be sufficient to satisfy the amount so due, with the costs of the petition and the subse- quent proceedings thereon ; and the same proceedings may be had, as often as a default shall happen (a). lb. sec. 164. The petition should be entitled in the cause, addressed to the court in which the judgment was obtained; should set forth briefly, the facts of the case, showing the amount of the install- ment, and the time when it became due ; and should be verified by the oath of the petitioner. Notice of the application should be served upon all the parties who appeared in the action. If all the parties are adults, and have been personally served, the court will no doubt allow the order for sale on the peti- tion, without a reference. But if there are infants or absentees (against whom nothing can be taken by reason of non-appear- ance), a reference is usually ordered, substantially similar to the reference upon the application for judgment against them ; name- ly, to take proof of the facts in the petition, ascertain the amount due, and examine the petitioner under oath as to payments; and, if there are further installments to become due, to ascertain whether the premises still remaining unsold may be sold in par- cels without prejudice to the interests of the parties. 2 Van (a) The provisions of the statute, it seems, apply only to mortgages conditioned for the payment of money. 2 Cams. 360. CH. XI.] FOEECLOSUBE BY ACTION. 827 Sant. Pr. 106. Thougli if the referee upon the original refer- ence reports that the premises cannot be sold in parcels, it is not necessary to obtain another report upon that subject. 11 Paige, 330. The proceedings before the referee are substantially the same as upon a reference on the original application for judgment ; and parties who have appeared are entitled to notice of the refer- ence. II). On the coming in of the referee's report, the court will make an order of sale, which will refer to, and be founded upon, the first judgment ; and in a similar manner directs the sale of the mortgaged premises, or so much thereof as is necessary to satisfy the amount due and costs, the payment of such amount to the petitioner, and the other essential requisites of a judgment in foreclosure. But the report must be filed and confirmed before the plaintiff can apply for an order of sale founded upon it ; if any of the defendants attended before the referee and objected to it. 11 Paige, 330. Upon the due entry of the order, the petition, order of refer- ence, and other papers, should be attached to, or filed with the original judgment rolL Proceedings in cases of svhsequent default, wh&n jvdgment has ieen stayed hy payment of amount due.] If, after a judg- ment for sale entered against a defendant, where only a portion of the debt is due, and there are other portions or installments to become due subsequently, he shall bring into court the principal and interest due, with the costs, the proceedings in the action will be stayed. But the court will enter a judgment of foreclos- ure and sale, to be enforced by a fiii-ther order of the court, upon a subsequent default in the payment of any portion or install- ment of the principal, or of any interest thereafter to grow due. 2 Pev. Stat. 192, sees. 161, 162. The application under the provisions of the statute refeiTed to, should also be founded upon petition, which should show that a default had occurred subsequent to the judgment, the amount of the mortgage debt due, the time when it became due, &c., and should pray that the plaintiff have liberty to enforce his judgment, by proceeding under it to a sale of the mortgaged premises. 328 rOBECLOSUBE BY ACTION. [CH. XI. Notice of the application should be given to aJl parties ap- pearing in the action. A reference is not necessary on this proceeding, the judgment already entered determining the rights of the parties. The order is not, like that granted on the application last mentioned, an order of sale, but only an order to enforce the judgment by allowing the plaintiff to proceed thereon. The action of the referee on the sale, therefore, is based on the origi- nal judgment, and not on the order ; and upon the entry of such order the plaintiff may proceed on his judgment in precisely the same way as though the judgment had not been stayed. 2. Van Sant. Pr. 108. Amplication for \orit of assistance.] The court has the power by statute to decree and compel the delivery of the possession of ■mortgaged premises to the purchaser thereof. 2 JRev. Stat.", 191, sec. 152. And the judgment, under rule Y2 of the Supreme Court, contains a provision that the purchaser be let into posses- sion of the premises on production of the sheriff's or referee's deed. The purchaser, therefore, is entitled, on application to the court, to a writ of assistance, if necessary, to put him into possession of the premises. And he may have such writ, notwithstanding the death of the plaintiff after judgment and before the sale. 12 Abb. 286, s. c. 21 jBow. 34. And a tenant in possession who has been made a party may be removed by the writ of assistance, notwithstanding he claims under an unexpired lease of several years, executed by the mortgagor previous to the date of the mortgage foreclosed. 9 Id. 220. Bo, a grantee of the purchaser is entitled to the same remedy, on the further proof that the deed from the purchaser to him has also been exhibited to the party in possession. 8 Id. 35, 352. But assistance will be denied, in such case, where there is a strong probability of injus- tice to the person in possession, 8 Paige, 33. Nor will the court grant the writ for the purpose of removing persons who go into possession after the purchaser has received his deed and conveyed the premises to another. 12 Ahi. 286, s'lipt^a. Nor against a person who, pending the suit, came into possession under one who was in possession at the commencement of the suit, neither having been made a party to the action. 8 Paige, 33. CH, XI.] FORECLOSUEE BY ACTION", 329 The power of tlie court extends only to those persons who are parties to the action, or who have come into possession of the premises while the action is pending, under, or with the assent of those who are such parties. 10 Paige 307; 19 Row. 491, s. c. 11 Ahh. 22%; Ih. 223, note; and see 9 Hmo. 220 ; Id. 407. The power of the court, too, may be controlled by an agree- ment between the purchaser and the party in possession, e. g., an agreement to reconvey on terms. 11 Paige, 228. The writ may be applied for ex-parte ; and no notice of the application is necessary. 8 How. 35, 352 ; 9 Id. 407 ; 12 Id. 286, supra ; 11 Id. 223, note. Costs of the foreclosv/re.] Costs in an action for the fore- closure of a mortgage, will be allowed or not, in the discretion of the court. Code, % 306 ; 16 How. 60 ; Id. 364 ; 9 Id. 398 ; 3 AU. 173. Ordinarily, the plaintiff, upon the entry of judgment for the foreclosure and sale of the mortgaged premises, will be entitled to his costs and disbursements of the action. These are regulated by the Code of Procedure, which gives him, for all proceedings before notice of trial, twenty-five dollars ; for all proceedings after notice and before trial, fifteen dollars; for each ad- ditional defendant served with process, not exceeding ten, two dollars; and for each necessary defendant in excess of that num- ber served with process, one dollar. Code, § 307 sub. 1, as amended, 1867, ch. 781. In addition to these allowances, the plaintiff is also entitled to be allowed ten per cent, on the amount found due or unpaid upon the mortgage, for any amount not exceeding two hundred dollars ; an additional sum of five per cent, for any additional amount not exceeding four hundred dollars ; and an additional sum of two per cent, for any additional amount not exceeding one thousand dollars. Ih. § 308, and § 309, as amended, laws 0/^1865, J?. 1287. The plaintiff is entitled, also, to his necessary disbursements, including the fees of officers, allowed by law, and the other items and charges usually allowed in other actions. In taxing the fees for serving notice of the object of the action, it is proper to allow a reasonable sum for such service, as a disbursement, if separately stated and duly verified. 14 How. 568. In the case cited, one 330 rOBECLOSUEE BT ACTION. [CH. XL half tlie sum for serving the gummona was deemed Bufficient. See, also, 2 Sand. S. 0. B. 742. (a) If the plaintiff finds it necessary to apply to the court for an order enforcing the payment of an installment falling due after judgment, he will be entitled to the percentage allowance above provided, but to no more in the aggregate than if the whole amount of the mortgage had been due when the judgment was entered. Code, § 309. It is thought, too, that in such case, he would be entitled to be allowed the other items above pro- vided, for proceedings before trial and for additional defendants served with notice of the application, besides the disbursements. 2 Van Sant. Pr. 107 ; 2 Rm. Stat. 193, sec. 164. If the action is settled before judgment therein, like allow- ances upon the amount paid or secured upon the settlement will be allowed to the plaintiff, at one-half the rates above specified. Code, § 308. Where a tender is made before judgment, if the parties do not voluntarily adjust the costs, either party may apply to the court for that purpose. The costs, in such- case, are to be regu- lated by the Code ; and in the adjustment of them the plaintiff will be entitled to an additional allowance, unless the court should think, that, under the circumstances, it ought not to be allowed ; or if the equities of the case demand it, the court may refuse costs to the plaintiff; or even award them to the defend- ant. 16 How. 60 ; Id. 364 ; 9 Id. 398 ; 3 AU. 173. On application of the plaintiff, the court will permit him, on receiving his debt and costs, to dismiss the action, without pay- ing costs to junior incumbrancers, who have appeared to protect their rights. So, also, as to the mortgagor, personally liable for the debt, who has conveyed the mortgaged premises subject to its payment. 2 Sand. S. C. E. 742. If issue has been joined in the action, and the case goes down for trial upon an issue of law or of fact, the costs will be in the, discretion of the court, the same as in other equity suits,, (Co^fc, § 306) ; and will be regulated, as to th« amount, by the Code of Procedure. Cod^, §§ 303-322. (a) In the bity and county of New York, all sales under mortgage fore- closures are required to be made by the sheriff or a referee ; and his fees are regulated by statute. Laws 1869, ohap. 569 ; 1874, p. 312, post, in supplement. CH. XI.] STBICT FOEECLOSUHE. 331 SECTION n. STRICT FOEEOLOSUEE OF MOETGAGES. The object of the action for strict foreclosure is to obtain a judgment for the payment of the mortgage debt within a short period, to be fixed by the court ; or that, in default thereof, the mortgagor, and all persons claiming under him, may be barred and foreclosed of all rights and equity of redemption in the mortgaged premises, and his and their title thereto be ex- tinguished, and vested in the mortgagee, without a sale thereof. 2 Barb. Ch. Pr. 186. In whai cases proper.] This action is properly brought by a mortgagee in possession under title from the mortgagor, for the purpose of cutting off and determining subsequent liens ; and by a purchaser in good faith, in possession, under a void or doubt- ful foreclosure and sale ; and by such purchaser at a foreclosure sale, valid as to all the parties except the defendant, as, for ex- ample, a judgment creditor or a grantee or mortgagee, subsequent to the mortgage, who was not made a party to the action ; and, generally, in cases where a party, as an outstanding incumbrancer, has a right to redeem as against another party in possession. 14 Mow. 165 ; s: c. 5 All. 16 ; 20 Wend. 260 ; 3 Johns. Ch. 460 ; 4 Paige, 68. In such cases, the action for a strict foreclosure is brought for the purpose of perfecting and protecting the interest of the pur- chaser or party in possession, by cutting off the outstanding in- cumbrances, or other interest, in case the defendant does not redeem within a short period, to be fixed by the court. In determining the action, the court may either adjudge a foreclosure and sale, as in an ordinary foreclosure suit, or a strict foreclosure against the defendant if he fails to redeem, according to the nature and equities of the case. 4 Paige, 68. The severity of the foreclosure without a sale is mitigated by the practice of enlarging the time to redeem from six months tc 332 STRICT FORECLOSUBE. [CH. XI. six months, or for shorter periods, as the circumstances may re quire. 4. Kenth Com. 181, marg. Parties to the action.'] The parties to the action are, in gen- eral, the same as in an action for a foreclosure and sale. All persons haying a right to redeem the premises, and all persons having any interest in the mortgage under the plaintiff, should be made parties defendants ; and, therefore, if there are several derivative mortgagees, they must all be made parties. 2 Barb. Ch. Pr. 187. Though if the mortgagee has assigned or conveyed away the money due on the mortgage, and also the mortgaged premises, the assignee may foreclose without making the original mortgagee a party. Ih. Nor is it necessary to make any person a party to the action whose claim or interest is already barred, even if he be the original mortgagor. 4 Paige, 68. If the mortgagor is dead, it is not necessary to make his per- sonal representative a party ; but it is sufficient if his heir is made a party. 2 Ba/rb. Ch. Pr. 188, citing 3 P. Wm. 333, n.; 13 Ves. 234. Proceedings in the action.'] The proceedings in the action, and the practice and rules in regard thereto, are substantially the same as in an ordinary action for foreclosure and sale. In respect, however, to the relief demanded in the complaint, this is different, the prayer of the complaint being that an account be taken, and the defendant be adjudged to pay the amount found due upon the mortgage, by a short day, to be appointed by the court ; or, in default thereof, that the defendant, and all per- sons claiming under him, be barred and foreclosed irom all equity of redemption in the mortgaged premises. Or, the prayer may be in the alternative, that the defendant be foreclosed and the premises sold, as in the ordinary action of foreclosure. 2 Barb. Ch. Pr. 188 ; 2 'Fan Sant. Pr. 120. Judgment and subsequent proceedings.] If a strict fore- closure is decreed, and an accounting is necessary to ascertain the amount due the plaintiff upon the mortgage, a reference wOl be ordered to take and state the account. And on the coming in of the referee's report, the court will direct judgment to be entered for strict foreclosure, that is, that the defendant and all CH. XI.] STEICT FORECLOSURE. 333 persons claiming under him, be barred and foreclosed from all equity of redemption in the mortgaged premises, unless payment be made of the sum so found due by a day to be fixed in the judgment. The time thus fixed is usually six months from the confirmation of the report ; though it may be a longer or shorter time, in the discretion of the court. And the time may be enlarged by the court, from time to time, according to the cir- cumstances of the case; though this will not be done, where, instead of the strict foreclosure vesting the title in the plaintiff a sale is ordered according to the usual practice of the court. 4 Johns. Ch. 140; 4 Kenfs Com. 181, Tnarg. The order for judgment is properly interlocutory, and should reserve further directions in the event of the defendant's failure to redeem. The judgment cannot be rendered against an infant without providing that he be allowed a day in court, after he comes of age, to show cause against the judgment ; though it is otherwise in case of a foreclosure and sale. 3 Johns. Ch. 36Y. And he should be allowed six months after coming of age to show cause against the judgment. 3 P- Wm. 352. In such case, however, the only cause which can be shown by the defendant is error in the judg- ment. He will not be allowed to open the accounts, nor to redeem the mortgage by paying what is due ; though, otherwise, where the judgment has been obtained by fraud, or where the infant claims by a title paramount to the mortgage. 2 Barb. Ch. Pr. 190, citing 1 Dan. 226, 243 ; Mos. Q&; 2 P. Wms. 73 ; 3 Id. 352. If the plaintiff is in possession, the judgment may properly direct him, upon payment of the amount reported due, to execute a release and quit-claim of the premises to the defendant. 6 Abb. 24, 8. c. 14 How. 165 {a). If a reference has been ordered, the referee wiU make and file his report, the same as in other actions, and exceptions may be taken to the same, also, as in other actions. On the day appointed for the payment of the amount found due to the plaintiff, either the mortgagee, or some person duly authorized for that purpose, must attend at the place appointed, (o) In this ease, the proper mode of proceeding in an action for-a strict foreclos- ure, where a foreclosure and sale has already been had by the judgment of a court not having jurisdiction, is stated and defined at large, by Bikdsbtb, J. 334: STRICT FORECLOSURE. [CH. XI. to receive the money, and remain there until the expiration ol the time fixed. If the mortgage money is not paid, upon an affi- davit of having duly attended, and of the non-payment of the money, the plaintiff is entitled to an order, on a motion to the court, that the defendant do fi-om thenceforth stand absolutely debarred and foreclosed of, and from all right, title, suit, and equity of redemption of, in, or to the mortgaged premises. 1 Smith, 406 ; 2 Barb. Ch. Pr. 192. But if exceptions have been taken to the report, the time for the payment of the money may be enlarged, until such time as they can be disposed of; and this, too, though the time has ex- pired. 1 Sim. and Stri. 365. And even if no exceptions are taken to the report, the court may, on application, enlarge the time appointed for the payment of the money ; and this may be done more than once in its discretion. 1 Mad. 287 ; 4 Russ. 124; 4: Johns. Ch. 140. Costs.] The allowance or refusal of costs in an action for strict foreclosure, is in the discretion of the court. Code, § 306 ; 24 How. 3Y9. Where the action is brought to supply a defect in the plaintiff's title, arising from his own neglect or misfortune, and without fault on the part of the defendant, the plaintiff will not be allowed to recover costs of the action. 6 Abb. 21, s. c. 14 How. 165. " In such a case," the court say, " the action will merely serve to remove the doubts and confirm the title, and the plaintiff may well bear the expense of that. But if the action is to be made to result in the transfer of the property from the plaintiff, after he in good faith supposed he had acquired a complete title to it, then the former foreclosure becomes wholly ineffectual ; it passes for nothing, so far as the question of title is concerned. And the plaintiff is then, in effect, merely enforcing his mortgage for the collection of the amount due him for his original debt, and such additions to it as, under the peculiar cir- cumstances of the case, are equitable and just. The costs of such a suit the plaintiff ought to pay." Ibid. ; and see 1 Paige, 617 ; 4 Id. 64. ^ect of strict forechs'ure.] Upon a strict foreclosure of a mortgage, if the value of the land be equal to the debt, the debt is extinguished. 4 Wend. 381 ; 9 Id. 287. If not equal to th^ CH. XI.] FORECLOSURE BY ADYERTISEMENT. 835 value of the land, it is only extinguished to the extent of such value, to be ascertained in a suit upon the bond or covenant. 1 iK T. Leg. Oh. 75. "Where a judgment, collaterally secured by a mortgage which has been foreclosed by strict foreclosure, is assigned, the effect of the assignment is, to pass the interest of the assignors in the mortgaged premises; and the assignors wiU hold the land as trustees for the assignees of the judgment. II. SECTION in. (a) FOBECLOSUSB OP MORTGAGES BY ADYERTISEMENT. The proceeding to foreclose a mortgage by advertisement, although a special statutory proceeding, is not a " special proceeding " within the meaning of § 3 of the Code of Procedure. It is not a remedy in a court of justice ; nor is it a proceeding im. personam ; but it is strictly and solely a proceeding in retn, or against the property, and is instituted only for the foreclosure of a lien. The first legislative regulation, in this State, on the subject of sales under mortgages, or special powers, was by the Colonial act of the 19th March, 1774. 7 Johns. Gh. i?. 50; 1 Paige, 69. In the first revision, after the Kevolution, the same provisions were reenacted. Act of 21st Feb., 1788. They were again adopted in the revisions of 1801 and 1813. 1 R. L. 373. In the Kevised Statutes of 1830, the previous statutory provisions were materially altered and improved, 2 Mev. Stat. 545 ; and the Revised Statutes have since been amended and altered from time to time, as experience has demonstrated the necessity for the same. Laws of 1838, ^7. 261 ; 1840, ^. 290 ; 1842, p. 364 ; 1844, (o) The design of this section is to treat only of the foreclosure of mortgages other than those to the people of this State. The provisions of the statute, there- fore, relating exclusively to mortgages to the State, are omitted. See those prs- visions, 1 Rev. Stat. 211. 336 FORECLOSUEE BY ADVEBTISBMENT. [CH. XI. p. 629 ; 1857, chap. 308, vol. l,p. 667. The existing statutes on the subject will be found fully stated in the following pages; an examination of which, with the numerous decisions of our courts upon them, will show how important and extended is the prac- tice and the litigation arising on the foreclosure of mortgages, by advertisement. In conducting the proceedings, the statute must be carefully followed ; and an omission to comply with any of its material re- quirements, will render the proceedings irregular and void. See 9 £arb. 278 ; 11 Id. 191 ; 13 Id. 137 ; 20 Id. 18 ; 36 Id. 501. What mortgages may he foreclosed.'] The statute provides that every mortgage of real estate, heretofore executed by any person being at the time more than twenty-five years of age, or hereafter executed by any person over the age of twenty-one years, containing therein a power to the mortgagee, or any other person, to sell the mortgaged premises, upon default being made hi any condition of such mortgage, may be foreclosed by adver- tisement, in the cases and in the manner therein specified. 2 Hev. Stat. 545, sec. 1. The Revised Statutes took efiect on the 1st January, 1830. If, therefore, the mortgage was executed prior to that time, the mortgagor must have been more than twenty-five years of age, at the time of the execution of the mortgage, to entitle it to be fore- closed under the statute. And if under that age, and the mort- gage be foreclosed, the sale, it seems, would create no bar to the right of the mortgagor to redeem the premises. 5 Johns. Ch. R. 35. But the mortgage would be voidable only, not void ; and no one but the mortgagor, or one claiming under him, could avail himself of the defect. 12 Barl. 9, aff. 6 Selden, 45. A mortgage given to secure unliquidated damages, though it contain a power of sale, cannot be foreclosed under the statute. 3 Ba/rb. Ch.. R. 619. But where the mortgage is conditioned for the delivery of certain specific articles, and the mortgagee, on de- fault, is authorized to sell the mortgaged premises, at public auc- tion, and to retain from the proceeds of the sale a specified sum, the mortgage may be foreclosed under the statute. 7 Wend. .458. The power of sale is extinguished by payment; and if a foreclosure afterwards take place, even a bona fide purchaser, it CH. XL] FOBECLOSUEE BY ADVEETISEMENT. 337 is said, will acquire no title. 5 Hill, 2Y2. Sucli a purchaser, however, will be protected where the foreclosure has been regu- lar, and due notice has been given to the mortgagor and his assigns. 36 Barb. 501. And so, a tender to the mortgagee, or assignee, of the whole amount of the debt and interest, with the costs and charges, will render a subsequent sale on the mortgage irregular and void. 5 Johns. Ch. R. 35. Nor can a foreclosure take place, under the statute, on a mortgage which has once been foreclosed ; as, where the mortgaged premises are sold on fore- closure, subject to installments thereafter to become due, and the mortgage is subsequently foreclosed for the impaid installment. 7 Paige, 250. But the mortgage is not extinguished where the assignee takes a quit-claim deed of one half of the mortgaged premises. At most, this can operate only as an extinguishment of one-half or some other portion of the mortgaged debt, leaving the as- signee at liberty to foreclose for the residue. 1 Hill, 107. Who may foreclose the mortgage.] The foreclosure must be had in the name of the real party in interest, that is, the mort- gagee ; or, if the mortgage has been assigned, the assignee, or their legal representatives. 2 Rev. Stat. 546, sec. 4 ; 13 Barh. 137 ; 3 Johns. Ch. 129. And if the mortgage has been assigned, in part, the mortgagee and assignee, both, should be made parties to the proceedings. See 2 C&w. 231, 239. It is not necessary, however, that every person having a mere equitable interest should be made a party. Ibid. The authority to sell, and the exercise of it, is a matter of private contract between the parties, and not of jurisdiction ; and, therefore, the administrators of a mortgagee appointed by the court of another State, where the mortgagee died, may come into this State, and foreclose a mortgage, pursuant to the power contained in it. 7 Johns. Oh. R. 45. Requisites to foreclosure.] To entitle any party to give the notice prescribed by the statute, and to make such foreclosure, it is requisite, — 1. That some default in a condition of such mortgage shall have occurred, by which the power to sell became operative ; 2. That no suit or proceeding shall have been instituted at 338 FORECLOSUEE BY ADVEETISEMENi". [CH. 33. law, to recover the debt then remaining secured by sucb mort- gage, or any part thereof; or if any suit or proceeding has been instituted, that the same has been discontinued, or that an exe- cution upon the judgment rendered thereon has been returned unsatisfied in whole or in part ; and, 3. That such power of sale has been duly registered, or the mortgage containing the same has been duly recorded. 2 Hev. Stat. 545, sec. 2. It was formerly held that an omission to record the power of sale would not afi"ect the proceedings as between the mort- gagor and mortgagee ; and that the recording was for the pro- tection of purchasers only. 2 Gowen, 195 ; 4 Id. 266. But in the absence of any adjudication since the Revised Statutes, it would be safer in all cases, that the mortgage should be recorded. See 4 KenSs Com. 191., note a, 6th ed.; Rev. Notes, 3 Rm. Stat. 776, M ed. Notice of foreclosure, am,d what to contain.] Every such no- tice shall specify : 1. The names of the mortgagor and of the mortgagee, and the assignee of the mortgage, if any ; 2. The date of the mortgage and where recorded, or where the power of sale is registered ; 3. The amount claimed to be due thereon, at the time of the first publication of such notice ; and, 4. A description of the mortgaged premises, conforming sub- stantially with that contained in the mortgage. 2 Rev. Stat. 546, sec. 4. For form, see Appendix, No. 189. The notice must also contain the time when, and the place where the sale will be had. These may be fixed by the party foreclosing, without reference to the interests of other parties ; except, as we shall see {post), the sale must be in the daytime, and in the cotmty where the mortgaged premises, or some part of them are situated. 2 Rev. Stat. 546, sec. 6, post ; 11 JSbw. 175. Where the day of sale was stated in the notice to be on Sunday ; it was held competent for the mortgagee, after the ad- vertisement of the notice, and before the day of sale, to postpone the sale to a subsequent day, without affecting the regularity of the Tsroceedings. 12 Wend. 57 ; see also 7 Mow. 372. CH. XI.] FOEECLOStTEE BY ADVERTISEMENT. 839 The place of sale should be definitely stated in the notice ; and where the notice stated that the sale would take place at the City Hall, New York, without stating the particular place — all the buildings used for holding courts within the Park being, by law, deemed parts of the City Hall — ^it was held that the notice would be too indefinite, were it not, that, by common usage, there is one established place for such sales, and that is the rotunda of the City Hall proper. 12 How. 490. If no place of sale is desig- nated, the proceedings will be irregular. 5 Johns. Gh. B. 35. The place where the mortgage is recorded is sufficiently speci- fied by stating in the notice the clerk's office and the date of record, though the number of the book in which it is recorded is erroneously stated. 21 ]!few York, 186. The statute, it will be seen, requires the notice to specify the amount claimed to he due upon the mortgage at the time of the first publication of the notice ; but it would seem that the true construction of that provision is, that the notice shall state the whole amount claimed to be unpaid thereon at the time of the first publication of the notice, and not merely the amount which has then actually become due and payable. 11 Paige, 626 per Walworth, Ch. The better practice would undoubtedly be, to state in the notice both the amount claimed to be due, and the amount claimed to be unpaid, at the time of the first publication of the notice. This would enable subsequent incum- brancers to determine the extent of the mortgage hen by the printed notice ; and might, also, be beneficial to the mortgagee, in case he should be compelled to sell the whole premises, and thus satisfy the whole mortgage, when only a part of it was due, 7 Paige, 211 ; 11. 248 ; 11 Id. 626 ; 16 Barl. 350. The notice should specify the amount actually claimed to be due at the date of the first publication ; and it seems that a statement that a par- ticular amount was claimed to be due at a certain prior day, and that the mortgagee claimed that sum with interest from that time, would not be sufficient. 21 New York, 189, per Denio, J. The notice must contain a description of the mortgaged prem- ises, conforming substantially with that contained in the mort- gage. And where the premises were described in the mortgage as lot number three, &c., on " a map " of the triangular tract made by H. M. Stoddard, and filed in the clerk's office, and containing 120 acres of land ; and the notice, as published, stated 340 FOEEOLOSUEE BY ADVEETISEMENT. [CH. XL nothing as to quantity, and gave no metes and bounds, and it did not appear whether the land was a village lot, or a farm ; it was held that the foreclosure was void. 9 Abb, 68, note. The notice, also, should declare that the mortgage will be foreclosed by sale. And a mere notice of the sale without declar- ing it to be for the purpose of foreclosure, or in execution of the power of sale contained in the mortgage, is, it seems, msufScient. 21 JSTew York, 186. Where the notice of sale makes a false assertion, as, that the premises are to be sold for default of three mortgages, when there were only two, the third being on other land, by which the public might be misled, or purchasers deterred from bidding, the sale will be irregular and void. 5 Johns. Ch. R. 35. But a mere mistake in computing the amount due upon the mortgage at the time of the first publication of the notice, is not, of itself, sulficient to vitiate the sale. 11 Paige, 620; 1 Hill, 108; 16 Barb. 347. Where the mortgagee designs giving a credit, on the sale of the premises, as to the whole, or any part of the moneys which he is entitled to retain, he may, it seems, insert a notice in the advertisement of sale, of such determination, and of the security which he will require. See 7 Paige, 251, per Denio, Y. C. How notice to be given-.'] As no effect will be given to a foreclosure unless conducted as prescribed by the statute, it is material that great care should be taken, not only in preparing the notice of sale, but in the publication, and posting, and serv- ice of the same. An omission to comply with any one of those requirements, will render the proceedings irregular. 9 Barb. 278 ; 11 Id. 191 ; 13 Id. 137; 20 Id. 18 ; 9 Abb. 66, note. The proceedings are to be conducted in conformity to the law in force at the time the foreclosure is commenced. 9 Barb. 482, aff. in C. of A., Dec., 1852. The statute provides (2 Rero. Stat. 543, sec. 3) that the notice that the mortgage will be foreclosed by a sale of the mortgaged premises, or some part of them, shall be given as follows : 1. By publishing the same for twelve weeks, successively, at least once in each week, in a newspaper printed in the county where the premises intended to be sold shall be situated ; or if CH. XL] FOEECLOSURE BY ADVEETISEMENT. 341 STicli premises be situated in two or more counties, in a news- paper printed in either of them ; 2. By afSxing a copy of such notice, at least twelve weeks prior to the time therein specified for the sale, on the outward door of the building where the county courts are directed to be held, in the county where the premises are situated ; or, if there be two or more such buildings, then on the outward door of that which shall be nearest to the premises. And by delivering a copy of such notice at least twelve weeks prior to the time speci- fied for the sale, to the clerk of the county in which the mortgaged premises are situated, who shall immediately affix the same in a book prepared and kept by him for that purpose ; and who shall also enter in said book, at the bottom of such notice, the time of receiving and affixing the same, duly subscribed by said clerk, and shall index such notice to the name of the mortgagor. 2 £ev. Stat. 543, sec. 3, a^s amended: hy Laws of 1842, p. 364, sec. 5 ; omd h/ Laws of 1857, vol. 1, p. 667. 3. By serving a copy of such notice at least fourteen days prior to the time thereia specified for the sale, upon the mort- gagor or his personal representatives, and upon the subsequent grantees and mortgagees of the premises whose conveyance and mortgage shall be upon record at the time of the first publication of the notice, and upon aU persons having a lien by or imder a judgment or decree upon the mortgaged premises, subsequent to such mortgage, personally, or by leaving the same at their dwelling-house in charge of some person of suitable age; or by serving a copy of such notice upon said persons, at least twenty- eight days prior to the time therein specified for the sale, by depositing the same in the post-office, properly folded and direct- ed to the said persons at their respective places of residence, (a) LoAJO^ of 1844, J). 529 ; 2 Beo. Stat. 546. {a\ It ia provided by statute, in cases where the notice of sale shall be published in the State paper by reason of all the printers and proprietors of newspapers in the county where the mortgaged premises are situated, refusing to publish the notice of sale for the price allowed by law, that a copy of said notice shall be served at least six weeks before the time of such sale, on the person in possession of the mortgaged premises, in all cases where the same are occupied ; and where they are not occupied, and the mortgagor, his heirs, or personal representatives, shall reside in the county where such premises lie, then upon such mortgagor, his heirs, or personal represen- tatives, as the case may be. And proof of the service of such notice may be made, Vol. L— 25 342 FOKEOLOSTTRE BY ADVERTISEMENT. [CH. XI. In computing the Urns for the publication and posting and service of notices, under the above section, the first day is to be excluded, and the last included ; thus, personal service of notice on the 1st for the 15th of any month would be sufficient. Y Hmo. 372 And so, where the Service is made by depositing the notice in the post-office, the service is good if the deposit is made on the 5th of April for the 3d of May. 12 Id. 493. And so, of affixing the notice twelve weeks prior to the time specified for the sale, and of the publication of the notice, the first day is excluded, and the last included. 16 Barb. 347. Where the service of notice of sale is by mail, the twenty- eight days are to be counted from the time of the deposit of th^ letter in the post-office, and not from the postmark or the time of forwarding it. 12 How. 490, swpra. The first jpvh ioation of the notice of sale must be at least eighty-four days, or twelve full weeks before the sale ; (a) and publication must be made in every intervening week, or until the expiration of the time required by statute. 16 Barb. 347, sujpra. And where the notice was first published on the 30th day of April, and lastly on the 16th day of July, being pnb lished twelve times in twelve successive weeks, once in each week, the day named in it for the sale being the 24th of July, it was held that the notice was published twelve weeks succes- sively within the meaning of the statute. 29 Ba/ri. 297. And it is sufficient if the notice is published once in each week for twelve weeks successively, although all the publications are made within 78 days, provided the first is 84 days prior to the day of sale, excluding the day on which the sale is to be made. Ih. (a) and see 20 Id. 148 ; 1 Wend. 90. The foreclosure will be regular, although the paper, in which the notice was published, was not well calculated to give that certified and recorded, in the same manner and with the like effect, as proof of the publication of a notice of sale under a mortgage. 2 Reu. Slat. 649, sees. 46 and 50. (o) In the case of a sale of real estate on execution, however, in which the time and place of the sale is required by the statute to be publicly advertised previously for six weeks successively, it was held by the Court of Appeals (three of the judges dissenting), that it was a sufficient compliance with the statute to publish the notice in six successive numbers of a weekly newspaper, although the first pubhcation may be less than six weeks prior to the sale. OfcoWvs. ifoiwwon, 21 New York, 160. OH. XI.] FORECLOSUEE BT ADVEETISEMEJSTT. 343 general information which, in such cases, should be afforded. 12 How. 444 ; 11 Paige, 624. If there is no newspaper published in the county where the premises are situated, the notice may be published in a newspa- per of an adjoining county. 2 Rev. Stat. 552, sec. 10. And so, if all the printers and proprietors of the newspapers in the county where the mortgaged premises are situated, refuse to publish the notice of sale for the price allowed by law, the mortgagee may publish the same in the State paper, instead of a paper printed in such county. lb. 648, sec. 46. The affixing of the notice on the outward door of the building where the county courts are directed to be held, is all the statute requires. 'It is not necessary, therefore, that the party who af- fixed it, should afterwards see it there. 12 How. 490 ; 7 Cowen, 13. The notice of sale must also be affixed in the book prepared and kept by the county clerk for that purpose twelve weeks prior to the time specified for the sale. And proof of the mere delivery to the clerk, for that purpose, would not be sufficient. See Laws of 1857, vol. 1, p. 667. When the premises to be sold are situ- ated in more than one county, notices should be affixed in each. Eev. Notes, 3 Bev. Stat. 2d ed. 776. "We have seen that by the statute, the notice must be served upon the mortgagor or his personal representatives, and the sub- sequent grantees and mortgagees whose conveyance and mort- gage are on record at the time of the first publication of the notice, and upon all persons having a lien under a subsequent judgment or decree. And if a subsequent mortgagee has as- signed his mortgage, and the assignment is on record, notice should also be served upon the assignee. 10 How. 51 ; 32 Barb. 241. An omission to serve the notice upon any of those parties would render the sale irregular as to the party not served, and those claiming under him. 11 Barb. 193 ; 17 Id. 100 ; 32 Id. 241 ; 10 How. 51 supra. And, it seems, if the omission is to serve upon the mortgagor, the sale will be void, 9 Barb. 284; 11 Id. 191 ; \& Id.9; and this, too, notwithstanding that the mort- gagor is not the owner of the equity of redemption at the time of the foreclosure. See 20 Barb. 18. K the mortgage was executed by husband and wife, and the wife survives her husband, she is entitled to notice of sale. 11 Baa-b. 191. She is a mortgagor within the nieaning of the stat' B4A FOBECLOSUBE BY ADVERTISEMENT. [CH. XIj nte ; and, therefore, the notice should be served upon her, even though the foreclosure should take place during the lifetime of her husband. lb. 193 ; 6 Faige, 474; 8 Barh. 619. In ease of the death of the mortgagor, the notice, it seems, need not be served upon his heirs, but it is sufficient if served upon his personal representatives ; that is, his executors or admin- istrators. The personal representatives were substituted by the leg- islature for the heirs (a). ll^a/'5.193,^(SrHarri8,J.; SiBarb.Sld. (a) The statute, however, is not so clear upon this point. The 3d subdivision, above, requires the notice to be served upon the mortgagor or his personal representa- tives. No allusion is made fo heirs; but, as we shall see, the sale of the premises, conducted as prescribed by the statute, is a bar of all claim or equity of redemption of the mortgagor, his heirs and representatives, and of aH persons claiming under him or tliem, by virtue of any title subsequent to such mortgage, and also of any person having a lien by any judgment or decree upon the land or any part thereof contained in such mortgage subsequent to such mortgage, and of every person having any lien or claim by or under such subsequent judgment or decree, who shall have been sereed with notice of said sale as required by law. 2 Bev. Stat. 546, sec. 8, as amended by Laws of 1844, p. 530, sec. 4, post. This statutory provision would seem to make it doubtful at least, whether the bar applies to any except those who have been served with notice of sale as required by the statute. See 9 Barb. 286. Besides, the terms " per- sonal representatives," though ordinarily meaning executors or administrators, yet are sometimes construed to mean "the next of kin." Bmr. Law Die. 195, 886, and cases {here cited ; andseei Will, on Ex. 1021, and note; ZBrad.4:5; 12Abb.3; 16 Id. 96, s. c. 39 Ba/rb. 616 ; 33 Eng. Ch. R. 136. Independent of the statute, service upon the heirs would seem to be far more necessary than upon the personal representatives. The personal representatives are interested to prevent a deficiency on the sale for which the estate might be liable; and are interested in the equity of redemption where the mortgaged premises con- flist of a term for years ; and also, where there is a probability of the personal estate of the mortgagor proving insufficient to pay his debts. Those are the only instances in which the personal representatives have any interest. And to give them notice of the foreclosure could afford no substantial protection to the heirs, because it would \b only where there was a probability that the heirs would realize nothing from the property that the personal representatives would really have any interest in it. The interest of the heirs, however, is different. The title to the premises, except when it consists of a term for years, vests in them with all the rights and incidents of abso- lute ownership. The title vests, too, charged with the payment of the very mort- gage which is being foreclosed, and which the heirs must pay out of their own prop- erty, without resorting to the estate of the mortgagor. 1 Rev. Stat. 749, sec 4; 2T Ba«-b. 42 ; 32 New York, 581. And they are thus, in respect to the mortgaged prem- ises, more nearly the " personal representatives " of the mortgagor than his execu- tor or administrator is in respect to the same property. In suits in equity for the foreclosure of mortgages, the heirs are Indispensable parties. 2 Barb. Ch.Pr.llQ; \0 Paige, iW, ante, p. 211. And as a foreclosure under the statute is "equivalent to a foreclosure and sale under the decree of a court of CH. XI.] FOEECLOSUKE BY ADVERTISEMENT. 345 As to the manner of service^ the mortgagee or party foreclos- ing, has three ways in which he may serve the notice of sale, service by any one of which will be sufficient. Thus, he may serve the notice personally, fourteen days prior to the time speci- fied for the sale ; or he may serve it fourteen days prior to the time of sale, by leaving it at the party's dwelling-house in charge of some person of suitable age ; or, he may serve it by depositing it in the post-office twenty-eight days prior to the time of sale, properly folded and directed to the party at his place of residence. And the service may be made by mail, even though the notice is deposited in the post-office in the place where the party to be served resides, and though the party foreclosing resides in the same place. 1 Kernan, 196, reversing 16 Sarh. 9. And where the service is by mail, it need not be deposited in any particular post-office, if it is mailed in this State, and there is no fraud or trick attempted. 16 Barb. 349, per Hand, J. Where the no- tices were placed, in ordinary envelopes, unsealed, with only a " circular" postage stamp, or one cent stamp, upon each, and there was no direction upon the notice itself, the only direction being upon the envelope ; it was held irregular, and the proceed- ings were declared void. 9 A hi. 67, note. Where the service is made by mail, the postage should be pre- paid, if the post-office department requires prepayment on letters before forwarding them. The statute does not in terms, require this ; but the notice cannot be said to be properly folded and directed, within the reasonable construction of the statute, unless everything is done necessary to entitle the notice to be forwarded from the office where it is deposited. Sea Tb. 68, note. PosPponement of sale.'] The sale may be postponed from time to time, by inserting a notice of such postponement, as soon as practicable, in the newspaper in which the original advertise- ment was published, and continuing such publication until the time to which the sale shall be postponed. 2 JSev. Stat. 546, sec. 5. Publication in the newspaper is sufficient, without service of notice of the postponement. 7 JSbw. 372. equit7," so far as to be an entire bar to the rights of the heirs in the equity of re- demption, there can be no substantial reason why the notice shoud be served upo^ them in one case and not in the other. 346 POBECLOSUBK BY ADVEETISEMENT. [CH. XI. Where the day appointed for the sale was Sunday, it was held competent for the mortgagee to postpone the sale to a subse- quent day without affecting the regularity of the proceedings. Ih. / see also 12 Wend. 57. If the postponement is made before the day appointed for the sale, it is sufficient that notice of sach postponement be pub- lished in the newspaper in which the original advertisement is published. But if the postponement is not made until the day of sale, the mortgagee, or party foreclosing, should attend at the time and place of sale, an' there state to the persons present the time and place to which the adjournment is made. In such case, the notice of postponement to be subsequently published and continued in the newspaper, must conform to the adjournment as previously announced. And where the notice, as published, istated a different and more distant day, on which day the sale was actually made, the proceedings were held to be void. 4 Denio, 107. And so, after publicly postponing the sale, the moi-tgagee is bound by it, and cannot so far disregard it as to proceed on the original notice. 7 Johns. 219. The sale.] The sale is required to be at public auction, in the daytime, and in the county where the mortgaged premises, or some part of them, are situated. 2 Rev: Stat. 546, sec. 6. The time and place designated in the notice of sale are to determine the time and pljace when and where the sale is to be had ; as to which, see ante, " Notice and what to contain." How the premises to he sold.'] If the premises consist of dis- tinct farms, tracts, or lots, they shall be sold separately; and no more farms, tracts, or lots shall be sold, than shall be necessary to Satisfy the amount due on such mortgage, at the time of the first publication of notice of sale, with interest, and the costs and expenses allowed by law. 2 Rev. Stat. 546, sec. 6 ; 8 Barb. 9 ; 10 Id. 564. When lands are mortgaged as one undivided tract or lot, and are subsequently subdivided by the mortgagor, for the purposes of sale or otherwise, the mortgagee, upon a foreclosure, is not bound to sell the lots separately, but may, it seems, follow the description in the mortgage, and sell them all together as one tract or lot. 8 Barb. 9, supra. And this is so, it seems, even CH. XI.] FORECLOSURE BY ADVERTISEMENT. 347 though the mortgagor has sold some of the lots, so subdivided, to different persons. lb. 12; and see 24 Id. 135. But it is doubtful whether the statute authorizes this construction ; at any rate, to the extent there stated. On the contrary, there is room for saying that the statute speaks of the premises as they are situated at the time when the sale takes place. And where the premises since the mortgage was given, have been subdivided by the owner into two or more lots, and some of the lots so subdi- vided have been sold to different parties, there is no reason why the mortgagee should not be compelled to sell, first, the lots which are still owned by the mortgagor, and afterwards, if those lots will not pay the debt secured by the mortgage, then the remainder of the lots, separately, in the inverse order of their alienation ; especially, if the owners of the premises require it, and the mortgagee's interest will not thereby be prejudiced. In respect to the rule which prevails, in such cases, in actions for the foreclosure of mortgages, see the following authorities : 6 Paige, 35 ; 8 Id. 277 ; 11 Id. 60, 71; 1 Barl. Ch. B. 353 ; 2 Id. 151; 2 Go/nst. 289 ; 4 Sajid. S. C. 565, aff. 4 Selden, 271 ; 24 Barb. 135 ; 13 How. 485. Where the premises consisted of two or more parcels which had previously been held, used, and conveyed together, as one farm ; it was held that a sale of the whole in one parcel was good. 34 Barb. 319. And so, in all cases where the premises do not consist of distinct farms, tracts, or lots, the whole may be sold together ; and the mortgagee, in such case, may apply the avails to the satisfaction of his mortgage, whether then due, or there- after to become due. 7 Paige, 211 ; lb. 248 ; 16 Barb. 350. A sale of the premises, subject to the payment of install- ments thereafter to become due, is not authorized by the statute. It seems, however, where the notice of the sale specifies the amount of such installments, and the sale is in fact made subject to them, an equitable lien would be created in favor of the mort- gagee against the purchaser, for the future installments, which the purchaser would be deemed to have assumed. But the mort- gage, as a mortgage, would be spent, and would no longer be a lien upon the premises for any part of the mortgage debt. 7 Paige, 250 ; 11 Id. 626. Whether the mortgagee would have the right to allow the purchaser a credit upon a sale of the premises, for any part of the 348 rORECLOSUBE BT ADVERTISEMENT. [CH. XI. purchase money, has not been determined ; although there is no doubt such credit could be given as to the whole, or any part of the money, which the mortgagee would be entitled to retain. See 7 Paige, 251, per Denio, Y. C. The surplus moneys.] The surplus moneys, after the mort- gagee's claim has been fully satisfied, with the costs and expenses allowed by law, are to be paid to the mortgagor, or to his repre- sentatives, {a) 7 Paige, 250 ; lb. 168 ; 11 Id. 624. But a subsequent incumbrancer has no claim upon the surplus moneys arising from the sale, where he has no notice of the fore- closure ; his lien not being aifected by the proceedings. 32 Barb. 241 ; and see 7 Paige, 168. Where the mortgagee owns another mortgage, subsequent to the one foreclosed, or a judgment, and there is a surplus in his hands, he may apply such surplus to the payment of such subse- quent mortgage or judgment. 11 Barb. 549 ; 13 Wend. 488. And so, where the mortgage foreclosed is payable in installments, he may apply the surplus, after satisfying the amount then due, with the costs, towards the payment of the installments there- after to become due. 7 Paige, 248 ; lb. 211. But if the prem- ises are sold subject to installments thereafter to become due, the mortgagor, it seems, is entitled to the surplus moneys, after pay- ing the amount due with the costs. Id. ibid. The mortgagee may purchase.] The mortgagee, his assigns, and his or their legal representatives, may, fairly and in good faith, purchase the premises so advertised, or any part thereof, at such sale. 2 Eev. Stat. 546, sec. 7 ; 4 Ifenio, 41 ; 20 Ba/rb. 559 : 36 Id. 501. See also post, " Evidence of Purchase." Affidavits of foreclosure.] In preparing the affidavits of the foreclosure proceedings, care must be taken to show that all the requirements of the statute have been complied with. 1 Wend 90; '2,0 Barb. 559; 27 7. But aU the provisions of the statute must be complied with, to render the foreclosure effectual. And, therefore, an omission to serve the notice of sale upon any ot the parties entitled to such service, would render the -sale irregular as to the party not served, and those claiming under him, 11 Barb. 193 ; 17 Id. 100 ; 10 Mow. 51 ; and, it seems, if the omission is to serve upon the mortgagor, the sale would be void. 9 Barb. 284 ; 11 Id. 191 ; 16 Id. 9 ; 20 Id. 18. But a purchaser at a sale which is void as against the mortgagor for want of notice, will stand as an as- signee of the mortgage. 25 New York, 320. The sale must also be made to a purchaser in good faith. A purchaser, without notice, is not affected by usury in the origi- nal debt for which the mortgage was given ; although it would be otherwise with the mortgagee, or other party having notice. 10 JoAtis. 195 ; 14 /. 599, sec. 27. Seal to writs.] All writs of habeas corpus, certiorari, or dis- charge, issued pursuant to the provisions of the statute, are required to be under the seal of the court by which they are awarded. And if the same are awarded by any officer out of court, they shall be under the seal of the court before which the writ is made returnable, or if it be made returnable before some body other than a court of record, or before an officer out of court, it shall be under the seal of the Supreme Court. 2 Rev. Stat. 573, sec. 74. Writ to be indorsed.] Every such writ shall be indorsed with a certificate that the same has been allowed, and with the date of such allowance. If the writ be awarded by a court, the indorsement shall be signed by the chief justice, or other pre- siding officer of such court. If it be awarded by any officer out of court, the indorsement shall be signed by such officer. 2 Rev. Stat. 574, sec. 76. And whenever the writ of habeas corpus shall be required in any action or matter to which the people of this State shall be parties, on the application of th& attorney- 372 HABEAS COBPUS. [CH. XII. general, or district attorney, having charge of the same, the court or officer allowing it shall also state in their indorsement of allowance, that it was issued upon such application. Ih. seo. 77. And so, when the writ is directed to any other than the sheriff, coroner, constable, or marshal, and the officer allowing it shall require that>4he charges for bringing up such prisoner, shaU be paid by the petitioner, the indorsement of aUowahce should specify the amount of such charges so to be paid. lb. sec. 84. As to the cases in which such charges will be directed to be paid, see post. For forms of indorsement, see Appendix, j^fo. 208. Writ good, though defective in form.^ Snch writs of habeas corpns or certiorari, shall not be disobeyed, for any defect of form. Bat they shall be sufficient : 1. If the person having the custody of the prisoner, be des- ignated either by his name of office, if he have any, or by his name ; or if both such names be unknown or uncertain, he may be described by an assumed appellation ; and any one who may be served with the writ shall be deemed the person to whom it is directed, although it may be directed to him by a wrong name or description, or to another person. 2. If the person who is directed to be produced, be designated by name ; or if his name be uncertain or unknown, he may be described in any other way, so as to designate the person intended. 2 Rev. Stat. 565, sec. 29. Amendment of writ.'] The writ may be amended on motion, like any other process. 3 Sill, 657, note, pi. 23 (a). When the officer Tnay require the cha/rges for bringing up the prisoner to be paid.] Every officer allowing a writ of habeas (o) At common law the writ of habeas corpus stood on the same footing with other prerogative writs, such as mandamus, quo warranto, certiorari, prohibition, &&, and was issued and dealt with upon the like general grounds and principles. 3 B'jick. Com. 132, 3; 2 Barr. 855, 6; 3 Pet. 202. Thus, as to the affidavit and motion for allowance, the form of the writ, the return, the right to question the truth of the return, the right to amend, &c., the common law doctrine respecting other prerogative writs applied to the writ of habeas corpus, and may still be resorted to fo ■ the purpose of throwing light on the rules relating to it. 3 EiU, 649, note, pi 2 • 2 Jiec. Stat. 573, sec. 13, post. CH. XII.] HABEAS CORPUS. 878 corpus, directed to any other tlian a sheriff, coroner, constable, or marshal, may, in his discretion, require as a duty to be per- formed, in order to render the service thereof effectual, that the charges of bringing up such prisoner shall be paid by the peti- tioner ; and in such case, he shall, in the allowance of the writ, specify the amount of such charges, so to be paid, which shall _ not exceed the fees allowed by law to sheriffs, for similar serv- ices ; as to which, see under the next head. 2 Hev. Stat. 575, sec. 84. Service of writ, and tender of fees, and iond.'] Writs of habeas corpus can only be served by ah elector of some county within this State ; and the service thereof shall not be deemed complete, unless the party serving the same shall tender to the person in whose custody the prisoner may be, if such person be a sheriff, coroner, constable, or marshal, the fees allowed by law for bringing up such prisoner ; nor unless he shall also give bond to such sheriff, coroner, constable, or marshal, as the case may be, in a penalty double the amount of the sum for which such prisoner may be detained, if he be detained for any specific sum of money, and if not, then in the penalty of one thousand dollars, condi- tioned that such person will pay the charges of carrying back such prisoner, if he shall be remanded, and that such prisoner will not escape by the way, either in going to, or returning from, the place to which he is to be taken. 2 Hev. Stat. 574, sec. 78. But this section is not made applicable to any case where the writ is sued out by the attorney-general, or by any district attorney. J h. sec. 79. Yor form of 1)0113., see Appendix, JSTo. 210. The fees of the ofiicer for bringing up a prisoner upon.habeas corpus, with the cause of his arrest and detention, are one dollar and fifty cents ; and for travelling, twelve and a half cents for each mile from the jail. 2 Eev. Stat. 646, and see 7 Cowen, 424 ; Cmoen & HiWs Notes to Phil. Ev. 19, noU 25. Every writ of habeas corpus or certiorari issued pursuant to the statute, may be served by delivering the same to the person to whom it is directed. If he cannot be found, it may be served by being left at the jail or other place in which the prisoner may be confined, with any under-ofBcer, or other person of proper age, 374 HABEAS OOBPUS. [OH. XII. having charge, for the time, of such prisoner. 2 Bev. Stat. 674, sec. 80. If the person upon whom the -writ ought to he served, con- seal himself, or refuse admittance to the party attempting to serve the same, it may be served by affixing the same in some con- spicuous place, on the outside, either of his dweUiug house, or of ■ the place where the party is confined. lb. sec. 81. Duty of officer, or person served."] It is the duty of every sherifi", coroner, constable, or marshal, upon whom a writ of habeas corpus shall be served, whether such writ be directed to him or not, upon payment or tender of the charges allowed by law, and the delivery or tender of the bond herein prescribed, to obey and return such writ according to the exigency thereof. And it is the duty of every other person upon whom such writ shall be served, having the custody of the individual for whose benefit the writ is issued, to obey and execute such writ, accord- ing to the command thereof, without requiring any bond or the payment of any charges, unless the payment of such charges shall have been required by the officer issuing such writ. 2 Mev. Stat. 5Y5, sec. 82 ; 10 Paige, 606 ; Y Wend. 132. And iu like manner, it is the duty of the person upon whom any writ of certiorari, issued pursuant to the provisions of the statute, shall be served, upon payment or tender of the fees allowed by law, for making a return to such writ, and for copying the warrant or other process to be annexed thereto, to obey and return the same according to the exigency thereof. 2 Hev. Stat. 576, sec. 83. Warrant for prisoner, and proceedings thereon.] Whenever it shall appear by satisfactory proof, that any one is held in illegal confinement or custody, and that there is good reason to believe that he wiU be carried out of the State, or suffer some irreparable injury, before he can be relieved by the issuing of a habeas corpus or certiorari, any court or officer authorized to issue such writs, may issue a warrant under his hand and seal, reciting the facts, and directed to any sheriff, constable, or other person, and com- manding such officer or person to take such prisoner, and forth- with to bring him before such court or officer, to be dealt with according to law. 2 Hev. Stat. 572, sec 65. For forms of peti- CH. Xn.] HABEAS CORPUS. 375 tion, affidavit, warrant, &c., see Appendix, Nos. 211, 212. Wlien the proof mentioned in the last section, shall also be sufficient to justify an arrest of the person having such prisoner in his custody, as for a criminal offense committed in the taking or detaining of such prisoner, the warrant shall also contain an order for the arrest of such person, for such offense. 2 Bev. Siat. 572, sec. 66. Any officer or person- to whom such warrant shall be directed, shall execute the same, by bringing the prisoner therein named, and the person who detains him, if so commanded by the war- rant, before the court or officer issuing the same ; and thereupon the person detaining such prisoner, shall make a return, in like manner, and the like proceedings shall be had, as if a writ of habeas corpus had been issued in the first instan-ce. li. sec. 67. If the person having such prisoner in his custody, shall be brought before such court or officer, as for a criminal offense, he shall be examined, committed, bailed, or discharged, by such court or officer, 'in like manner as in other criminal cases of like nature. Ih. sec. 68. When the retwm to he made.] li the writ be returnable at a certain day, such return shall be made, and such prisoner shall be produced, at the time and place specified therein. If it be returnable forthwith, and the place be within twenty miles of the place of service, such return shall be made, and such prison- er shall be produced, within twenty-four hours; and the like time shall be allowed for every additional twenty miles. 2 Rev. Stat. 575, sec. 85, Proceedings on disobedience of writ.l If the person upon whom such writ of habeas corpus or certiorari shall have been duly served, shall refuse or neglect to obey the same, by produc- ing the party named in such writ of habeas corpus, and making a fiiU and explicit return to every such writ of habeas corpus or certiorari, within the time herein required, and no sufficient excuse shall be shown for such refusal or neglect, it shall be the duty of the court or officer before whom such writ shaU have been made returnable, upon due proof of the serpce thereof, forthwith to issue an attachment against such person, directed to the sheriff of any county within this State, and commanding him forthwith to apprehend such person, ;and to bring him imme- 376 HABEAS CORPUS. [CH. XII (liately before sueh court or officer; and on such person being so brought, be shall be committed to close custody, in the jaU of the county in which such court or officer shall be, without being allowed the liberties thereof, until he shall make return to such writ, and comply with any order that may be made by such court or officer in relation to the person for whose relief such writ shall have been issued. 2 Rev. Stat. 566, sec. 34. For form of attachment and commitment, see Appendix, Nos. 213, 214. If a sheriff of any county shall have neglected to return such writ, tlie attachment may be directed to any coroner or other person, to be designated therein, who shall have full power to execute the same ; and such sheriff, upon being brought up, may be committed to the jail of any county other than his own. Ih. sec. 35. The court or officer by whom any such attachment may be issued, may also, at the same time or afterwards, issue a precept to the same sheriff, or other person to whom such attachment shall have been directed, commanding him to bring forthwith before such court or officer, the party for whose benefit such writ of habeas corpus or certiorari shall have been allowed, who shall thereafter remain in the custody of such sheriff or person, until he I shall be discharged, bailed, or remanded, as such com-t or officer shall direct. Ih. sec. 36. For form of precept, see Ap- pendix, No. 215. In the execution of such attachment or precept, or of either of them, the sheriff or other p6rson to whom they shall be direct- ed, may call to his aid the power of the county, as in other cases. Ih. sec. 37. The return, and what to contain.] The person or officer on whom the writ is served must make a return thereto in writing, and must also bring the body of the person in his custody, ex- cept in the case of the sickness or infirmity of such person, in which case that fact must be stated in the return of the party in whose custody he is, and verified by his oath. 2 Hev. Stat. 566, sees. 33, 49. The retujn must state plainly and unequivocally, 1. Whether he have, or have not, the party in his custody, oi under his power or restraint ; 2. If he have the" party in his custody or power, or under his CH. yil.] HABEAS COEPUS. 377 restraint, the authority and true cause of such imprisonment or restraint, setting forth the same at large ; 3. If the party Tae detained by virtue of any writ, warrant, or other written authority, a copy thereof shall be annexed to the return ; and the original shall be produced and exhibited on the return of the writ, to the court or officer before whom the same is returnable ; 4. If the person upon whom such writ shall have been served shall have had the party in his power or custody, or under his restraint, at any time prior or subsequent to the'date of the writ, but has transferred such custody or restraint to another, the return shall state particularly, to whom, at what time, for what cause, and by what authority, such transfer took place. The return must be signed by the person making the same ; and, except where such person shall be a sworn public officer, and shall make his return in his official capacity, it shall be verified by his oath. Ih. sec. 32. For forms of return, see Appendix, No. 216. To excuse the non-production of the body, the return must be, not only that the prisoner is not in the defendant's custody, but, also, that he is not in his possession or power. 10 Johns. 328, 331 ; see also 3 Hill, 657 note, pi. 24 ; 11 Mass., 83. But whenever, from the sickness or infirmity of the person directed to be produced by any writ of habeas corpus, such per- son cannot, without danger, be brought before the court or offi- cer before whom the writ is made returnable, the party in whose custody he is, may state that fact in his return to the writ, veri- fying the same by his oath. 2 Bev. Stat. 569, sec. 49. Where the return of commitment is made by a sheriff, it will be construed liberally. 1 Hill, 154. Notice to parties interested.'] When it appears from the return to the writ, that the party named therein is in custody on any process, under which any other person has an interest in continuing his imprisonment or restraint, no order shall be made for his discharge until it shall appear that the party so interested, or his attorney, if he have one, shall have had the like notice of the time and place at which such writ shall have been made returnable, as is required to be given of special motions in the Supreme Court. 2 Hev. Stat. 569, sec. 46. For form, see Ap- pendAx, No. 217. 378 HABEAS COEPUS. [CH. XIL The notice, therefore, must be served at least eight days before the timo appointed for the hearing, where it is personally- served ; and when served by mail, double tfiat time is required. Code of Pro. §§ 412, 413 ; 1 Burr. Pr. 336, 352. Service by mail is authorized where the parties interested or their attorneys reside in different places, between which there is a regular com- munication by mail. The service, in such case, is made by inclosing the notice in a wrapper, and putting the same in the post-office, directed to the party or his attorney, at his place of residence, and paying the postage on the letter. Ih. y and see Code, § 410. The notice must be given notwithstanding the party inter- ested does not reside in the county where the party intended to be relieved resides, or where the proceeding is had for a habeas corpus. The party interested is entitled to notice, without re- gard to his residence. 14 Wend. 48. But it is not necessary to serve with the notice a copy of the petition or other paper upon which the writ is, granted. 12 Id. 229. Notice to district attorney.] Wlien it appears from the return that such party is detained upon any criminal accusation, such court or officer shall make no order for the discharge of such party, until sufficient notice of the time and place at which such writ shall have been returned, or shall be made returnable, shall be given to the district attorney of the county in which the person prosecuting the writ shall be detained ; and no notice ■to any other district attorney shall be necessary. 2 Pev. Stat. 569, sec. 4T, as amended by Laws of 183?, p. 231 ; 5 JSiU, 169. For form of notice, see Appendix, No. 218. Notice is equally important in many cases other than those provided for by the statute, and should doubtless be required. Bee 3 Mill, 657, note, pi. 22 ; JSurd on Habeas Corpus, 230, Amendment of the return.] The court may, in its discretion, allow an amendment of the return at any time before the case is decided, where it appears to be necessary to the ends of justice. Hwrd on Hah. Corpus, 262. The amendment may be either in form or substance, 10 Mod. 102 ; and if it be not true, the person who makes the return is in the same peril as if the fact had been originally returned. Ih. The amendment must be by the one CK XII.] HABEAS COEPFS. 379 ■who made the defective return. 3 Hill, 657, note, pi. 25 ; and see ante, p. 372, note. Staying the proceedings.'] The court will not stay the pro- ceedings on a habeas corpus because the costs of a former pro- ceeding in the same matter remain unpaid, 3 Hill, 399. And, it seems, the rule is the same, in this respect, whether the pro- ceeding in which the objection is taken be regarded as at the common law, or under the statute. Ih. Proceedings on the return of the writ.'] The sole basis of the statutory provisions relating to the writ of habeas corpus being an illegal imprisonment or restraint, the only authority of an officer acting under it is, to discharge, hail, or remam,d the person on whose behalf the writ is issued. 1 Duer, 709. It is provided by the statute, that the court or officer oe- fore whom the party shall be brought, on such writ of habeas corpus, shall, immediately after the return thereof, proceed to examine into the facts contained in such return, and into the cause of the confinement or restraint of such party, whether the same shall have been upon commitment for any criminal, or sup- posed criminal, matter or not. 2 Rev. Stat. 667, sec. 38. Where the facts set forth in the return are admitted, or are not denied, the law of the case, alone, is to be inquired into ; and the proceeding is the same as if the return were formally de- murred to. 3 Hill, 658, note pi. 28 ; 1 Parh. Or. E. 129 ; 4 Barb. 31. But if issue is taken upon the material facts in the return, or other facts are alleged to show that the imprisonment or de- tention is illegal, or that the party imprisoned is entitled to his discharge, the court or officer is to proceed in a summary way to hear the allegations and the proofs of the parties, and to dispose of such party as the justice of the case may require. 2 Pev. Stat. 669, sec. 4:8, post, p. 383. Prisoner, when discharged^ If no legal cause is shown for the imprisonment or restraint of the party, or for the continuation thereof, the court or officer is required to discharge such party from the custody or restraint under which he is held. 2 Pev. Stat. 567, sec. 39. For form of discharge, see Appendix;, ^No. 219. But if it appear on the return, that the prisoner is in custody 380 HABEAS COEPUS. [CH. HI. by virtue of civil process from any cotirt legally constitnted, or issued by any officer in the course of judicial proceedings before Mm, authorized by law, such prisoner can only be discharged in one of the following cases : 1. Where the jurisdiction of such court or officer has been exceeded, either as to matter, place, sum, or person ; 2. "Where, though the original imprisonment was lawful, yet ' by some act, omission, or event, which has taken place after- wards, the party has become entitled to be discharged ; 3. Where the process is defective, in some matter of sub- stance required by law, rendering such process void ; 4. Where the process, though in proper form, has been issued in a case not allowed by law ; 5. Where the person having the custody of the prisoner under such process, is not the person empowered by law to detain him ; or, 6. Where the process is not authorized by any judgment, order, or decree of any court, nor by any provision of law. 2 Bev. Stat. 568, sec. 41 ; 3 Hill, 661, note, pi. 31 to 37. But if the party be illegally arrested or detained, even though the process be valid, this is ground for discharge. 3 HiU, 666, note, pi. 39, and cases. And so, where there are two causes of imprisonment, one valid and the other invalid, the court may, on habeas corpus, discharge as to the invalid cause, and remand the prisoner as to the other. T Cowen, 472. Where the imprisonment is under actual process, valid on its face, it will be deemed prima facie legal, and the prisoner must assume the burden of impeaching its validity by showing a want of jurisdiction in the magistrate or court whence it emanated. 3 mU, 661, Tiote, pi. 31 ; 1 Sand. S. C. 702; 2 Parker's Or. E. 650. And if he" fail in thus impeaching it, his body will be remanded to custody. Error, irregularity, or want of form, is no objection ; nor is any defect which may be amended or remedied, by a farther entry on motion. 3 Hill, 661, note, pi. 31 and 38, and cases there cited; 1 Barl. S. C. R. 193 ; 3 Id. 37 ; Id. 162 ; 1 Hill, 154; 18 Johfis. 305. And in general, the examination, where the imprisonnient is on civil process, regular and valid on its face, will be confined to the jurisdiction of the court which issued it, and to the inquiry whether some event has not since occurred to entitle the prisoner CH. Xn.] HABEAS CORPUS. 381 to his discharge. Id. ihid; 1 Park. Or. R. 196. And, it seems, in determining the question of jurisdiction, the court may look into the affidavits on which the process is founded, so far as to see that the judge had colorable proof to authorize such process 1 Barb. 8. C. E. 349. When the commitment is irregular, to enable the officer to remand a prisoner, the testimony, showing that he is guilty of the offense charged, must be produced on the return of the writ or at the hearing thereon. And it is too late to present such testimony on a subsequent day, when the judge announces his decision to discharge the prisoner. 1 Sand. S. C. 702. Prisoner when remanded.'] It is made the duty of the court or officer forthwith to remand such party, if it shall appear tha* he is detained in custody, either, 1. By virtue of process issued by any court or judge of the United States, in a case where such court or judge has exclusive jurisdiction j or, 2. By virtue of the final judgment or decree of any compe- tent court of civil or criminal jurisdiction, or of any execution issued upon such judgment or decree; or, 3. For any contempt specially and plainly charged in the commitment, by some court, or officer, or body, having authority to commit for the contempt so charged ; and, 4. That the time during which such party may be legally de- tained has not expired. 2 Pev. Stat. 567, sec. 40. For form of order, directing prisoner to be remanded, see Appendwe, No. 220. And so, if it appear that the party has been legally commit- ted for any criminal offense, or if he appear by the testimony offered with the return, or upon the hearing thereof, to be guilty of such an offense, although the commitment be irregular, the court or officer before whom such party shall be brought, if the case be not bailable, or if bailable and good bail be not offered, shall forthwith remand such party. 2 Pev. Stat. 568, sec. 43 ; 5 Oowen, 39 ; 3 MU, 666, note, pi. 40 ; 1 Samd. S. C. 708 ; 3 Parh. Or. P. 562. And when a party, committed for refusing to be sworn, or to answer, in cases of insolvency, shall bring a writ of habeas cor- pus, he shall not be discharged by reason of any insufficiency in the form of the warrant of commitment ; but the court or officer Vol. I.— 28 382 HABEAS COEPtTS. [CH. XIII. before whom sucli person shall be brought, shall recommit such person, unless it shall be made to appear that he has answered all lawful questions put to him, or had sufficient reason for re- fusing to sign the examination, as the case may be ; or unless such person shall then answer, on oath, the questions so put to him. 2 Bev. Stat. 44, sec. 15. But no court or officer, on the return of any habeas corpus or certiorari, shall have power to inquire into the legality or justice of any process, judgment, decree, or execution, specified in the preceding twenty-second section, (ante, p. 365) ; nor into the jus- tice or propriety of any commitment for a contempt made by any court, officer, or body, according to law, and charged in such commitment, as herein provided {cmte, sec. 40, siib. 3.) 2 Rev. Stat. 568, sec. 42 ; 2 Parh. Or. JR. 60, reversing 1 Id. 588 ; 16 £arh. 363 ; 1 Ahi. 210 ; 8 How. 478 ; 1 JBiU, 154 ; 5 Id. 164 ; 10 Faige, 284; 11 Mow. 425 ; 15 Ba/rb. 162; 1 Buer, 696; 3 mil, 651, 662, note, pi. 3 and 38. But on a commitment by final process upon a summary con- viction, the court or officer may examine the record of convic- tion ; and if it be void, he may discharge the prisoner. 1 Pa/rk. Cr. R. 195, cmd cases there cited. Indeed, final process may in all cases be impeached by showing either that there was no judg- ment, decree, or conviction on which it is founded ; or that the judgment, &c., is absolutely void, Id. iihid / or, that the judg- v^'ment does not show a case authorizing the execution on which the defendant is arrested. 15 How. 210, s. c. 6 Ahh. 31 ; 35 Rarb. 444, s. c. 13 Abb. 405 ; 21 Bow. 80 ; 12 Abb. 38. And even where the imprisonment is under the asserted authority of the United States, when in fact there is no real authority, the court has jurisdiction, and may discharge the pris- oner. 3 Mill, 651, note. Though the authority of the State courts to inquire into the cause of detention ceases when the commitment is made by direction of a judge of the United States courts, but not before. 42 Barb. 479, s. c. 25 Mow. 380. But see In the Matter of Hopson (40 Barb. 34), where it is held that the authority of the State court ceases when the commitment or detainer is under the authority of the United States, even though not made by a judge of a court. In such a case, the remedy of the party is by writ of habeas corpus, to be issued by a judge of the United States courts. lb. per Bacon J. CH. XII.] HABEAS COEPUS. 383 Wlietlier the affidavits upon wMch an attacliment for con- tempt is issued, are sufficient to warrant the officer in issuing it, js a matter that cannot be reviewed on habeas corpus. 2 Sand. S. O. Y29, s. e. 4 How. 873 ; 1 Barb. S. G. R. 340 ; and see 7 Abb. 96., s. c. 29 Barb. 622; 21 How. 54. If the officer, in such case, erred, it was an error of judgment as to the sufficiency of the evidence, to be corrected on motion or by appeal. Id. ibid. Where the return to a habeas corpus showed that the prisoner was detained under a commitment for contempt as a witness in refusing to answer questions relating to a criminal complaint, it was held that the officer before whom the writ was returnable had no right to inquire into the truth of the facts adjudged by the committing md,gistrate ; nor whether the questions put to the witness were proper ; nor whether he was privileged from answer- ing. 5 HUl, 164 ; see also, 11 How. 418 ; 21 Id. 54. But the officer may inquire, whether in truth there is any process of commit- ment, and whether it is valid upon its face ; and he may also inquire whether any cause ha^arisen, since the commitment, for putting an end to the imprisonment. Id. ibid ; see also, 8 How. 478 ; 3 Hill, 666, note, pi. 39 ; 2 Pa/rk. Or. E. 660 ; 7 Abb. 96, s. 0. 29 Barb. 622. And, it seems, he may also inquire whether the magistrate had jurisdiction ; and this, too, notwithstanding the commitment recites the necessary facts to give jurisdiction. 5 Hill, 164, supra. " "So court or officer can acquire jurisdiction by the mere assertion of it, or by falsely alleging the existence of facts on which jurisdiction depends." Tb. 168, per Bronson, J. ; and see 5 Abb. 281 ; 15 How. 210 ; 26 Barb. 78. See further on this subject, under the next head, post; and see, also, under the next preceding head. Proceedings if return is denied or avoided.'] The statute provides that the party brought before the court or officer, on the return of any writ of habeas corpus, may deny any of the mate- rial facts set forth in the return, or allege any fact, to show either that his imprisonment or detention is unlawful, or that he is entitled to his discharge ; which allegations or denials shall be on oath ; and thereupon such court or officer shall proceed in a summary way, to hear such allegations and proofs as may be pro- duced in support of such imprisonment or detention, or against 384 HABEAS C0EPTJ3. [CH. XIL the same, and to dispose of sucli party as the justice of the case may require. 2 Rev. Stat. 569, sec. 48. The courts and judges have not concurred in the proper construction to be given to the above section ; especially, as to whether a court or oiEcer, under it, may go behind the warrant on which the prisoner is detained, and inquire from facts aliimde the return, into the legality of the imprisonment. ■ It is stated in the Notes to 3 JSiU, 658 {pi. 30), that "where the return shows that the party is detained on 'process, the exist- ence and validity of the process are the only facts upon which issue can be taken: These alone, are the ' material facts ' within this section — not whether the process was founded on sufficient evidence, or any evidence at all " (a). And again, the statute was not intended " as an authority to inquire into the validity of writs, warrants, or other process, farther than to ascertain whether they will protect the party suing them out, or the o^cer serving or executing them." "When the process is suf&cient to protect the party and officer, the imprisonment is lawfal, and must be relieved against by direct proceeding — e. g., a writ of error, certiorari, motion, &c." Ih. 659. And so, in The People v. McLeod (1 HUl, 337 ; see also, 25 "Wend. 483, 570), the court say that this section was not intended to give a prisoner the right of summary trial as to the question of guilt or innocence; but only to enable him, by evidence aliunde the return, to dispute the fact of his being detained on the process or proceeding set forth, or to impeach it for lack of jurisdiction, or to show that by some subsequent event («. g., a pardon, reversal of judgment, &c.), it has ceased to be lawful cause of detention. And accordingly, it was held, in that case, that a party duly committed upon a regular indictment for mur- der, cannot be discharged upon habeas corpus, by proving his innocence, merely, however clear the proof may be. Ih. 377. And so, the question, whether a former trial and conviction are a bar to an indictment subsequently found for murder alleged to have been previously committed, cannot be raised and made a ground for discharge on habeas corpus. 3 Park. Gr. P. 126. (o) "If this is so, then is the principle of Cable y. Cooper, 15 JohtK. R. restored, the act of 1818, reversing that case, rendered nugatory, and section forty-eight of our habeas corpus law shorn of very much of its benignant power. But it is not BO." Per Edmonds, J., 1 Park. Cr. R. 194. CH. Xn.J HABEAS CORPUSw 385 And so, in a proceeding under the statute, before a county judge at chambers, where a pardon was alleged in answer to a, return on habeas corpus, and it was sought to avoid the effect of such pardon by showing that it had been fraudulently obtained ; it was held that the court or officer could not go behind the par- don to inquire into the regularity of the proceedings ; and this, too, notwithstanding that it was apparent in that case that the pardon had been obtained by gross fraud and misrepresentation. 8 How. 4:78. In proceeding under the writ, the officer is " con- fined to jurisdictional questions, and to what may be called the prima fade appearance of the proceedings, without raising any collateral issues, and without any impeachment of records, deeds, or papers fair on their face, and with the sole object of inquiring whether the party is legally detained." Ih. 483. And, per Bronson, J., in The People v. Oassels (5 Hill, 168), the forty-eighth section was mainly, if not solely intended, for cases where the party is restrained of his liberty without the authority of legal process. " In such cases," he obsei-ves, " the return is usually made by a person haying an interest in the question, and who has exercised the restraint upon his own re- sponsibility, as the parent, husband, master, or guardian of the person imprisoned ; and it is very proper that the facts which they state in the return should be open to investigation. But it is otherwise when the return is made by an officer having legal process." Tb. And so, in the Matter of Prime (1 Barb. 8. G. P. 340), where the relators were detained on civil process, it was held that the court could not look beyond the colorable authority of the judge who issued the warrant. And per Mason, J., in that case {p. 350), after considering the 48th section, supra: "The general provisions of this habeas corpus act show most clearly that it was never intended as a writ of review to correct the errors of inferior tribunals." See, also, substantially to the same effect with the authorities cited above, 1 Barb. 8. C. P. 193, per Edwards,. J.; 4 Id. 33, per WiUard, J. ; 3 Park Or. P. 541, per Gierke, J. The above cases and authorities, or most of them, as well as the practice in England and in the United States Supreme Court, are reviewed by Edmonds, J., in The People v. Martin, (1 ParTc^ (Jr. P. 18T.) the prisoners, in that case, were detained on a war- 386 HABEAS CORPUS, [CH. XH. rant of commitment for trial on a charge of grand larceny ; and on application for their discharge on the ground that they were inno- cent of the crime alleged, it was held, contrary to the tenor of the cases and authorities cited sujpra, that the whole question of guilt or innocence, on a commitment before indictment, was open for examination on the return to the writ ; and that in such cases, under the statute, the proceedings on a habeas corpus are in the nature of an appeal from the decision of the committing magis- trate. But that in criminal cases where an indictment has been found, the rule is otherwise ; though, it seems, that rule does not deny the power of the court to look beyond the commitment after indictment, but only that the court wiU not exercise that power unless there are good reasons for doing so — e. g., where the party ought to be discharged or bailed, in consequence of delay in bringing an indictment to trial. Ih. 191 ; and see, also, II. MO ; 3 Hill, 651 and 670, notes; Hurd on Hob. Corpus, 287. See also, the case of The People v. Tomphins (1 Park. Cr. R. 224:), where the same question is again considered by Justice Edmonds, and additional authorities cited and reviewed. " I have always understood," he observes, " that it was the in- tention to give to a party committed for a crime by an examining magistrate, an appeal from his commitment to the higher judges, by virtue of the writ of habeas corpus, and such has uniformly been my practice ; and the practice is abundantly sanctioned by authority and statute." Id. 235, citing 3 Eiiil, 665, cfec, note, pi. 38, 39, 40, 4:3, 45 ; 1 Cutty's Cr. Law, 128 ; 4 Oranch, 125 ; 5 Cowen, 51; iBarh.S. C. B. Sid, supra; 3 Peters, 202; 2 Kent's Com. 28, 31. And see also, 1 Barb. S. C. R. 267 ; 1 Park. Cr.R. 436; 18 Wend. 640; \% How. 92; iJ. 179; 11 All. 56. Where a person had been arrested as a fugitive from justice, and was afterwards brought before a justice of the Supreme Court on habeas corpus, for the purpose of inquiring into the cause of his detention — ^it was held proper for the justice to look behind the warrant, for the purpose of ascertaining whether the officer had jurisdiction to issue it. 1 Park. Cr. R. 429 ; 1 Banh. 8. C. R. 249 ; 1 Sand. 8. C. R. 702. But in such case the court will not inquire as to the probable guUt of the accused, but only whether he has been properly " charged " with guilt. The place of the inquiry in respect to the guilt, is where the offense ia CH. XII.J HABEAS COEP0S. 387 charged to have been committed. 9 Wend. 220 ; and see 12 Id. 323, 325. The issue joined upon the return to the writ, must be tried by the court or oflBcer before whom the proceeding is pending ; and such court or officer has no power to order a reference for that purpose. Matter of Smith, per Davies, J., New York Sp. Term, Nov. 1857. It was formerly held that the party brought up on habeas corpus could not be examined on the application for- his discharge, 6 Hill, 17; Hurd on Hah. Corp. 306 ; and that the Code of Pro- cedure had not changed the rule in that respect. 1 Park. Or. H. 169 ; and see 2 Brad. 224 ; 16 Barb. 201 ; 10 How. 83 ; 5 Abb. 212 ; 1 Selden, 383. But since the decisions referred to, the Code has been amended ; and now, a party may be examined as a wit- ness in the same manner, and subject to the same rules of exam- ination as any other witness. Code, § 399, as amended, Laws of 1860,^. 787; 1862, j?. 858 ; 1865, j;.. 1290; am,d see 23 How. 313, 8. c. 14 Abl. 305. The inquiry on the traverse to the return being summary, the court will in general, permit the parties to introduce- affidavits in support of the imprisonment or detention, or against the same. In respect to this point, Mr. Hurd, in bis treatise, after reviewing the authorities on the subject of proofs by affidavit, states the following conclusions, as warranted by the practice, in the absence of statutory provisions on the subject, viz. : 1. Affi- davits, if taken before competent authority and properly authen- ticated, though taken without notice to the adverse party, may be received. 2. The question of their reception is addressed to the sound discretion of the court, to be exercised upon the circum- stances of each case. 3. In examinations relating to criminal charges, the personal attendance of the witnesses will be required, unless it be shown that it could not be obtained by the exercise of reasonable diligence. 4. This species of evidence is of the lowest admissible grade, and therefore is to be received cautiously and scrutinized closely. Hv/rd on Hob. Corpus, 323. The prisoner may prove the writings or documents on which his arrest is founded, and what they contain, by the best evidence at hand, or which he can procure with reasonable diligence, with- out regard to the ordinary rules of evidence. 1 Sand. S. C. B. 702, s^lpra ; Hv/rd on Hah. Corpus, 304. 388 HABEAS CORPTTS. [CH. XII Where the material facts alleged in. the return, are not denied by the party brought up, they will be taken to be true. 1 Park Cr. R. 129; 3 Rill, 668,note,pl. 28; 25 Wend. 98. The process by which the prisoner is detained, being valid on its face, the burden of proving the defects alleged in the tra- verse, or the facts therein stated, rests upon him. 1 Sand. & G. R. 702 ; 2 Park. Or. R. 650. Custody and disposition of infcmts.^ The writ of habeas cor- pus, as we have seen, issues at the instance of a parent and a guardian for the custody and disposition of a child or a ward. In such cases the writ issues at the common law, and not under the statute, except in the cases provided for by title 2d of chap. 8th of part 3d of the Revised Statutes (2 Rev. Stat. liS>,post); and except, also, in the case of an infant too young to be capable of determining for itself. 1 Duer, 725 ; 22 Barb. 179, aff. 4 Kern. 575 ; and see Surd on Hah. Corpus, 454, 562. The father, as a general rule, will be entitled to the custody of his infant child ; and where differences exist between the parents, all other things being equal, the right of the father will be preferred to that of the mother (a). Willard's Eq. Jur. 618 ; 18 Wend. 637 ; 19 Id. 16 ; 24 Barh. 521 ; 35 Id. 92 ; 27 7(?. 9 ; 2 KenSs Com. 194. Accordingly, on habeas corpus by the husband against the wife and her father, to obtain the custody of his infant daughter, the court enforced the husband's claim as para- mount, though the daughter was less than five years old, and of feeble constitution. 3 Mill, 400. But where the parties live apart, under a voluntary separation, the custody of an infant of tender age will be given to the mother, wherever it appears that the interests of the infant demands it. So held in the case of an infant which was twenty-one months old. 25 Wend. 64 ; 8 Paige, 48. And so, the right of the husband may be lost by ill-usage, or immoral principles or habits, on his part ; or by his inability to provide for his child ; or where, to give the chUd to him, would be maiiifestly to its detriment and discomfort. WUl. Sq. (a) By a statute passed March 20, 1860, {Laws of 1860, p. 157, § 9), every married ■woman was constituted and declared to be the joint guardian of her children, with her husband, with equal powers, rights, and duties in regard to them, with the hus- band. But it being doubtful whether any effect could be given to the statute (35 Baa-b. 86, per Allen, J.,) it was shortly afterwards repealed. Laws o/ 1 862, j>. 344, § 2. CH. XEI.] HABEAS COBPUS. 389 Jur. 618; 2 ZewOs Com. 194, and note; 18 Wend. 63Y; 19 Id. 16 ; 24 Barb. 521; 27 /. 326, note. The allowance may also, it seems, be made by a judge of the Court of Appeals, or by a county judge, or officer elected to perform the duties of a county judge. Laws of 1847, p. 324, sec. 17 ; 10 How. 181. For form of affidavit, certiorari, and allowance, see Appendix, Nos. 92, 94 ; and for return to certiorari, see Appendix, Nos. 97, 98. The certiorari authorized by the above section, is not merely a common law certiorari, limiting the court in its review to the single question of jurisdiction ; but it contemplates a review upon the merits, so far as the legal rights of the parties are involved. That review, however, is confined to matters of law ; and where there has been no error in law, the proceedings cannot be " cor- rected," however improperly the tribunal below may have exer- cised its power. 6 Barh. 369, per Harris, J. ; 24 Id. 521 ; and see 25 Wend. 64. And where a county judge, in the exercise of CH. XII.] HABEAS CORPUS. 401 his discretion, refused to deliver an infant child to the custody of its mother ; it was held, that the question whether he exercised that discretion wisely or not, could not be reviewed upon certio- rari. 6 Barb. 366, supra. Nor will the court review the evidence given on the hearing below, or any decision concerning its competency ; so held, where the objection was, that the relator was sworn and testified be- fore the commissioner in his own behalf. 5 HUl, 17. In a case where the prisoner was detained under a commit- ment on final judgment, the county judge refused to allow a writ of habeas corpus, on the ground that he had no jurisdiction to issue it. Whether the prisoner was so committed or detained, was a question which the county judge was required to decide, in order to determine whether or not the writ should be allowed ; and his determination that the prisoner was not entitled to it, was held to be a proper subject of review upon certiorari. 16 Barh. 362. Where the proceedings are removed into the Supreme Court on behalf of the people, the district attorney is the proper person to procure the certiorari to be issued, and to act as attorney for them in the prosecution of the same. 15 Ba/rb. 153. The certiorari may be brought to a hearing by either party upon the usual notice of argument ; and is entitled to preference on the morning of any day during the first week of term. 8v^. Court Rules, No. 47. If the proceedings upon habeas corpus are had before a judge as an officer, and not as a court, the certiorari is properly directed to him. And the certiorari, in such case, is properly allowed by a justice of the Supreme Court. 35 Ba/rb. 444, s. c. 13 AJbb. 405. In the case cited, it was allowed by one justice of the Su- preme Court, and directed to another justice of the same court. The certiorari should be made returnable at a general term ; but not in a different district from that in which the proceedings on the habeas corpus were had. lb. per Bockes, J. Review by Court of Appeals.] The statute provides that after the Supreme Court shall have made a final determination. upon any writ of habeas corpus or certiorari, issued for the relief of any prisoner, such prisoner, if his discharge be refused, may prosecute his writ of error thereupon, to the Court of Appeals. ,402 HABEAS COBPUS. [CH. XIL If such prisoner shall have been discharged, the attorney-general, if the commitment was upon some criminal accusation, and the party aggrieved, if such prisoner was detained in any civil suit, may in like manner prosecute their writ of error to the said court. 2 Rev. Stat. 573, sec. 70 ; Laws of 1847, p. 321, 322 ; Code, § 471, ante, p. 14, note h. The court will not stay the proceedings upon the writ of error ; so held by the late Supreme Court, where the defendant was detained as a fugitive from justice from another State, and after his discharge was refused, applied for a writ of error to the Court for the Correction of Errors, with a stay of proceedings until the hearing thereon. 9 Wend. 222. The Court of Appeals, when any such writ of error shall be brought, has power to make such orders, and to issue all such writs, as may be necessary, for the discharge or recommitment of such prisoner, according to the judgment which shall be given by such court ; and, generally, to carry such judgment into full effect. 2 Bev. Stat. 573, sec. 71 ; Laws of 1847, p. 321, sec. 8. The provisions of the common law.] The provisions of the common law, in regard to the writ of habeas corpus, treated of in this article, are abrogated, except so much and such parts thereof as may be necessary to carry into full effect the provisions herein contained; and the authority of courts and officers to award such writ, or to proceed thereon, by the common law, shall be exercised in conformity to the provisions of this article, in all cases therein provided for. 2 Heo. Stat. 573, sec. 73 (a). To what other cases the statute applies.] The several pro- visions contained in tliis title (herein considered), shall be con- strued to apply, so far as they may be applicable, and except where otherwise provided, to every writ of habeas corpus author- (a) The Revisers' original note to this section is as follows : The authority of the courts is derived as well from the common law, as from the statute ; but the pro- ceedings in the two cases may be essentially different. See the opinions of the twelve judges in the American edition of Bacon's Abridgement. (Sdb. Corpus, B. 13, p. 438.) Sometimes courts hold that common law remedies are not abolished by the enaotinent of statutory provisions. The above section is proposed, with a view to out off all pretext for resorting to the inadequate common law remedy, and to insure a compliance with the statute. In such a case, it is conceived, nothing should be left to implication." Bev. Notes, 3 Sev. Sfat. 185. 2d ed. CH. SII.] HABEAS COEPUS. 403 ized to be issued by any statute of tbis State. 2 Bev. Stat. 575, sec. 86 Special provisions appUcahle to the city of New Yorh.'\ In tbe city and county of New York, except by the judges of tbe Court of Common Pleas, tbere shall be no costs or fees charged or received upon any proceedings upon writs of habeas corpus, either by the judge granting them, or by the officer serving them, or the jailor obeying their orders ; and' the judge before whom the matter shall be heard, shall, if the case be bailable, and the amount of bail shall have been fixed by the committing magis- trate, only determine whether the party is lawfully committed, or is legally chargeable with the offense imputed, and shall not adjudicate upon the question of bail. The amount of bail ordered by the committing magistrate, shall, in such cases only, be altered by a court having jurisdiction of the offense for which the prisoner was committed ; and any officer violating the pro- visions of this section, shall be guilty of a misdemeanor, and shall be subject to the pains and penalties for such offense. The judges of the Court of Common Pleas in and for the city of New York, may charge the fees now allowed by law in such cases. Laws of 1844, p. 475; 2 Bev. Stat. 807, Uh ed. See Laws of N. Y. City, as to other special provisions relating to that city. Particularly as to notice to be given to Dist. Att'y, in application to bail a party under arrest for criminal offence. 404 HABEAS CORPUS. [cs. XIT. SECTION II. WRIT OF HABEAS CORPUS TO BRING UP A PRISONER TO TESTIPT. (o) In what cases.] The statute provides that every court of record shall have power, upon the application of any party to any suit or proceeding, civil or criminal, pending in such court, to issue a writ of habeas corpus, for the purpose of bringing before the said court, any prisoner who may be detained in any jail or prison within this State, for any cause, except a sentence for a felony, to be examined as a witness in such suit or proceed- ing, in behalf of the party making the application. 2 Jiev. Stat. 559, sec. 1 (b). This writ may also be issued by any of the oflBcers herein named, upon the application of a party to a suit before any justice of the peace, to bring any person confined in the jail of the same county, or the coimty next adjoining that where such justice may reside, before such justice, to be examined as a witness. 2 Ji&o. Stat. 559, sec. 4. And so, the writ may issue to bring up a prisoner to testify in his own behalf; so held, where the prisoner was detained on (o) For the eommon law authority of the coiart or judge to issue the writ, and for the practice in such cases, see 1 Cbtoen & SiU'a Notes to PhU. Eii. 19, 22, 23. (J) It is also provided, that whenever any convict confined in any county or State prison shall be considered an important witness in behalf of the people of this State, upon any criminal prosecution against any other convict, by the district attorney con- ducting the same, it shall be the duty of any ofBcer authorized by law, to allow writs of habeas corpus, upon the affidavit of such district attorney, to grant a habeas corpus for the purpose of bringing such prisoner before the proper court to testify upon such prosecution. 2 Rev. Stal. 714; sec. 1; Lams of 184T, p. 627, sec. 160. And whenever it shall appear to the court, in which an indictment is pending and to be tried, against any person for any oSfense committed by him while Imprisoned in any county prison, or any one of the State prisons, on the person of any other indi- vidual confined in such jail or State prison, that any other person confined in any county prison, or in any of the State prisons, is an important witness in behalf of the person so indicted, such court is hereby authorized to grant a writ of habeas corpus for the purpose of bringing such prisoner before such court to testify upon the trial of such indictment, in behalf of the party making the application. /6. see ] 55 , and see chap. 5, of Laws of 1846. CH. XII.] HABEAS C0EPU3. 405 a ca. sa., and desired to testify in relation to his own appKcation for a discharge pursuant to an act of insolvency. 5 Cowen, 176. But after the Court of Oyer and Terminer shall commence its sitting in any county, no prisoner detained in the common jail of such county, upon any criminal charge, shall he removed there- from by any writ of habeas corpus, unless such writ shall have been issued by such court of Oyer and Termiuer, or shall be made returnable before it. 2 JSev. Stat. 758, sec. 27. Oertavn officers may also allow the writ.'] In addition to the power given to a court of record, to issue the writ, the statute authorizes the writ to be issued by any justice of the Supreme Court, or any officer authorized to perform the duties of such jus- tice, upon the like application of a party to any suit or proceed- ing pending in a court of record, or pending before any officer or body who may be authorized to examine witnesses, in any suit or proceeding. 2 Hev. Stat. 559, sec. 3. The officers authorized to perform the duties of a justice of the Supreme Court within the meaning of the above section, are the justices of the Superior Court, and the judges of the Court of Common Pleas, in the city of l^ew York, Laws of 1847, j?. 279, § 7 ; the judges of the county courts, within their respec- tive counties. Zaws of 1847, p. 642, § 27. And see ante, p 366, and note; 36 New Torle, 607. The writ may also be issued by the judges of the Superior Court of the city of Buffalo. Laws of 1857, vol. 1, pp. 752, 754. Also by the city judge of the city of Brooklyn, within the coimty of Elings, Laws of 1849, p. 174, § 26 ; and by the Ke- corder of the city of Troy. Ih.. ^. 164 ; 17 New York, 316. The application, and what to contain.] The application for the writ should be made by the party to the suit or proceeding in which the writ is required, or by his agent or attorney. Where the writ is required in an action or matter to which the people of this State shall be parties, the apphcation therefor should be made by the attorney-general or district attorney hav- ing charge of the same. 2 Bev. Stat. 574, sec. 77. The statute requires the application to be verified by affi- davit, and to state, 1. The title and nature of the suit or proceeding, in regard to which the testimony <}f such prisoner is desired; and, 406 HABEAS COEPTTS. [CH. XII 2. That the testimony of such prisoner is material and neces- sary to such party, on the trial or hearing of such suit or proceed- ing, as he is advised by counsel, and verily believes. But if the application is made by the attorney-general, or the district attorney, it shall not be necessary to swear to such advice or counsel. 2 Refo. Stat. 559, sec. 2. For form of affidavit, see Appendix, No. 226. The zorit.'] The writ is required to be under the seal of the court by which it is awarded. If awarded by any officer out of court, it should be under the seal of the court before which it is returnable ; or if made returnable before some body other than a court of record, or before an officer out of court, it should be under the seal of the Supreme Court. 2 Rev. Stat. 5Y2, see. li. It may be made returnable at a day certain, or forthwith, as the case may require. Ih. sec. 75. If issued in term, it may be tested on any day in that term, or if in vacation, on any day in the preceding term. Id. 197, sec. 5 ; 1 Bwrr. Pr. 4:53. For form of writ, see Appendix, No. 227. If the court or officer is satisfied with the affidavit on which the application is founded, the vn-it will issue, with an endorse- ment of allowance thereon, which may be as follows : " Allowed this day of 18 — ." The endorsement, if the writ is awarded by the court, should be signed by the presiding officer of such court ; or if awarded by any officer out of court, the endorsement should be signed by such officer. 2 Rev. Stat. 574, sec. 76. Though the writ do not say, "to tesUfy;" yet, if it have words equivalent, this is sufficient. 5 Cowen, 176. So, though it do not specify a place of return within the county ; as, at the office of the first judge ; for this is to be intended. Ih. And the alteration of the writ, after it is executed, without the knowl- edge or privity of the sheriff, will not deprive him of the right to give it in evidence for his justification, though such alteration be made by the deputy who executed it. Ih. Service of vyrit, cmd "hy wTiom.'\ The vmt can only be served by an elector of some county within the State, 2 Rem. Stat. 574, sec. 78 ; except where it is sued out on the application of the attorney-general, or district attorney. Ih. sec. 79. It may be CH. XIT.] HABEAS COEPUS. 407 eerved by delivering the same to the person to whom it is directed, or if he cannot be found, it may be served by being left at the jail or other place in which the prisoner may be confined, with any under-officer, or other person of proper age, having charge, for the time, of such prisoner. Tb. sec. 80. If the person upon whom the writ ought to be served, conceal himself, or refuse admittance to the party attempting to serve the game, it may be served by affixing the same in some conspicuous place, on the out- side, either of his dwelling-house, or of the place where the party 'is confined. li. sec. 81. Fees and hond on service.] The service of the writ is not complete (except where it has been sued out by the attorney- general or district attorney), unless the party serving the same shall tender to the person in whose custody the prisoner may be, if such person be a sheriff, coroner, constable, or marshal, the fees allowed by law for bringing up such prisoner ; nor unless he shall also give bond to such sheriff, coroner, constable, or marshal, as the case may be, in a penalty, double the amount of the sum for which such prisoner may be detained, if he be detained for any specific sum of money, and if not, then in the penalty of one thousand dollars, conditioned that such person will pay the charges of carrying back such prisoner, if he shall be remanded, and that such prisoner will not escape by the way, either in going to, or returning from, the place to which he is to be taken. 2 Sev. Stat. 5Y4, sees. 78 and 79. For form of bond, see Ajypendix, No. 228. The fees and expenses for bringing up the prisoner, are one dollar and fifty cents, and for traveling, each mile from the jail, twelve and a half cents ; {a) and for attending any court with such prisoner, one dollar per day, besides actual necessary ex- penses. 2 Rev. Stat. &4:Q. Duly of officer to whom the writ is delivered.'] It is the duty of the officer to whom the writ is delivered, or upon whom it shall be served, whether such writ be directed to him or not, upon payment or tender of the charges allowed by law, and the (a) In computing mileage in these cases, it was held under the Kevised Laws of 1813, in which mileage was allowed "for every mile from the jaU," that the mileage shall be computed both for going and returning. 1 Cowen, 424. And see Comen & EiWa Notes to FhU. En. 19, note 25. 408 HABEAS COEPUS. [CH. XII, delivery or tender of the bond herein prescribed, to obey and return such writ according to the exigency thereof ; and every officer -who shall refuse or neglect so to do shall forfeit to the peo- ple of this State, where the writ was issued upon the application of the attorney-general, or district attorney, and in other cases, to the party upon whose application the same shall have issued, the sum of five hundred dollars. 2 Bev. Stat. 662, sec. 20 ; II. 5Y5, sec. 82 ; 5 Johns. 357 ; 5 Cowen, 176. If the writ is returnable at a certain day, such return shall be made, and such prisoner shall be produced, at the time and place specified therein. If it is returnable forthwith, and the place be within twenty miles of the place of service, such return shall be made, and such prisoner shall be produced, within twenty-four hours ; and the like time shall be allowed for every additional twenty miles. 2 Sev. Stat. 575, sec. 85. The prisoner should be taken by the shortest and most con- venient route to the court or place where he is to give his evi- dence ; and it seems', where he is imprisoned on execution, if the sheriff voluntarily suffers him to go at large out of his custody in the mean time, or if he goes with him out of the way to accom- modate the prisoner, or to answer his individual purposes, and not in the exercise of the legitimate purposes of the writ, it is an escape for which the sheriff is liable. 10 Paige, 614. The sheriff is not boimd, however, to keep the prisoner always in sight, or with the same strictness as before ; and if the prisoner, of his own will, should go about for a short time on his own business, and out of view of the sheriff', it is not an escape. 18 Johns. 48 ; and see 7 Wend. 132 ; Cowen e made.] The application should be made to the Supreme Court, 2 Pev. Stat. 194, sec. 170 ; Laws of 1847, p. 323, sec. 16 ; or to the county court of the county where the premises are situated. Code of Pro. § 30, svh. 6 ; or to the Court of Common Pleas of the city and county of New York, when the premises are situated within the limits of that city, La/uos of 1854, p. 464, sec. 6 ; or, in the city of Buffalo, to the Superior Court of that city, when the premises are situ- ated therein. Ih. p. 224, sec. 9. The application is ex-parte, and should be made to .the court at special term ; and cannot be made to a judge at chambers, 21 Ba/rb. 348, (except in the city of New York) ; unless holding a special term there, by appointment ; or as he may now do by ad- journment, as prescribed in the late amendments to the Code. Code, § 24, as a/mended, 1862. In respect, however, to the county court, the application may be made at any term of the court, or even out of term, or to the judge at chambers, that court being always open for the transaction of such business. Code of Pro. § 31. But whether the application, in such case, is made in court or out, the papers should recite the proceedings to have been in court. Who may he special gitardian.} The general guardian of infants is the proper person to be appointed special guardian to sell their estate ; and another person will not be appointed with- out some special reasons shown to the court ; as, that the general guardian cannot procure the requisite security, or the like. 2 Paige, 412 • 3 Id. 265. CH. XIII.] SALES OF THEIS REAL ESTATE. 451 A part owner of the property intended to be sold, and who is also a creditor against the infant's share, ought not to be appointed the special guardian to seU the property. 2 Edw. Ch. B. 113 ; per McCoun, V. C. And if such a person should be appointed, his accounts will be strictly scrutinized by the court. Ih. Nor can a husband be appointed guardian to sell the estate of his infant wife. 4 Johns. Oh. E. 378. But although the hus- band cannot be appointed, in such case, yet a third person may be appointed, with the consent of the husband, to join him in the sale. 3 Paige, 265. By the sixtieth rule of the Supreme Court, which is believed to apply to this proceeding, no person can be appointed guardian ad litem, either on the appHcation of the infant or otherwise, unless he be the general guardian of the infant, or is fully com- petent to understand and protect the rights of the infant, and who has no interest adverse to that of the infant, and is not connected in business with the attorney or counsel of the adverse party. And no person shall be appointed such guardian who is not of suflScient ability to answer to the infant for any damage which may be sustained by his negligence or misconduct in the defense or prosecution of the suit. See 2 Van Sant. Pr. 318. And by the sixty-first rule, it is made the duty of the guar- dian of an infant defendant in any suit or proceeding, to examine into the circumstances of the case so far as to enable him to make the proper defense, when necessary, for the protection of the rights of the infant. I J). Ajppoini/ment of special guardicm.'] The court, on the ap- plication, is required by the statute, to appoint one or more suitable persons guardians of the infant, in relation to the pro- ceedings on such application. 2 Pefo. Stat. 194, sec. 171. And, therefore, if it satisfactorily appears that there is reason- able ground for the application, an order may be entered appoint- ing a guardian for the purposes of the application, on his execut- ing and filing with the clerk the requisite security, approved of as to its form and manner of execution, by a justice of the Supreme Court, or a county judge, signified by his approbation endorsed thereon. Swp.jDourt Pules, No. 67. For form of order, see Ajppendix, No, 260. 452 infants' estates. [ch. xiii. Bond of guardian?^ The guardian must give a liond to the infant, in such penalty, with such sureties, and in such form, as the court shall direct. 2 Rev. Stat. 194, sec. 172. For form, see Appendix, Ko. 261. The court have provided, by general rule, that the security required on a sale of the real estate of an infant, shall be a bond of the guardian, with two sufficient sureties, in a penalty of double the value of the premises, including the interest on such value during the minority of the infant, each of which sureties shall be worth the penalty of the bond, over and above all debts ; or a similar bond of the guardian only, secured by a mortgage on unincumbered real estate of the value of the penalty of such bond. Sup. Court Rules, No. 68. The security here required cannot be dispensed with, although the petition sets forth the inability of the infants to procure such security. 1 £dw. Ch. R. 507. The condition of the bond is for the faithful performance of the trust reposed in such guardian ; for the paying over, invest- ing, and accounting for all moneys that shall be received by such guardian, according to the order of any court having authority to give directions in the premises ; and for the observance of the orders and directions of the court in relation to such trust. 2 Reo Stat. 194, sec. 172. The bond must be duly proved or acknowledged, in like man- ner as deeds of real estate ; and the sureties should justify in the usual form. Sup. Court Rules, No. 6. The bond, also, should be approved of as to its form and manner of execution, by a jus- tice of the Supreme Court, or a county judge, signified by his approbation endorsed thereon. Ih. No. 67. And when duly executed and approved, it should be filed in the office of the clerk where the order for the appointment of the guardian is entered. 2 Paige, 409. It has been held, that, where there are several infants inter- ested in the sale, and the guardian gives to each infant, a bond with the same sureties, in the penalty of double the value of each infant's interest in the premises, the sureties justifying in eateh case, according to the penalty of each separate bond, this is not a compliance with the spirit of the rule. The sureties should have justified in respect to their ability, as to the aggregate penalties of the several bonds. 4 How. 414 CH. XIII.] SALES OF THEIR BEAL ESTATE. 453 If the bond be forfeited, the court will direct It to be prose cuted, for the benefit of the party injured. 2 Rev. Stat. 194, sec. 173. But an action cannot be maintained upon the bond until pro- ceedings for an account have been had against the guardian in a court of equity, 19 Johns. 304 ; 3 Hill, 11 ; hit see contra, 5 Paige, 92 ; though, it seems, this would be otherwise under circiunstances where it would be difficult to compel the parties to account. 3 Hill, supra Reference, and proceedings thereon.] Upon the presentation of the petition and accompanying affidavits to the court, an order ■will be made, referring it to a competent and disinterested person as referee, to report upon the matters alleged in the petition. The court, however, may proceed summarily without a reference, if the facts show a clear case where the disposal of the estate is necessary and proper for any of the purposes indicated by the statute. 15 Abb. 91. In addition to the appointment of a special guardian, the order will also direct a reference to ascertain the truth of the facts stated in the petition, and whether a sale of the premises, or any and what part thereof, would be beneficial to the infant, and the particular reasons therefor ; and to ascertain the value of the property proposed to be sold ; and of each separate lot or parcel thereof, and the terms and conditions upon which it should be sold ; and whether the infant is in absolute need of any, and what part, of the proceeds of the sale for his support and maintenance, over and above the income thereof, and his other property, together with what he might earn by his own exertions. And if there is any person entitled to dower in the premises, who is wUling to join in the sale, also to ascertain the value of her life estate in the premises, on the principle of life annuities. Swp. CovH Rules, No. 67. For form of order, see Appendix, No. 260, and for annuity table, see Appendix, No. 527. But no proceedings shall be had upon such reference, untU the guardian produces a certificate of the clerk, that the requisite security has been duly proved, or acknowledged, and filed, agree- ably to the order of the court ; and which certificate shall contain the name of the officer by whom it was approved, and shall be annexed to the report. II. For form, see Appendix, ISTo. 261. 454: INFANTS' ESTATES. [CH. SHI. And it is the duty of tlie clerk with whom the order is entered, before he gives the certificate to see that the bond or other secur- ity is executed by the proper persons, and in the form prescribed by the order of the court. 4 Paige, 46. Where several infants are interested in the same premises, as tenants in common, and the application in behalf of all shall be joined in the same petition, as required by the rule, there shall be but one reference to ascertain the propriety of a sale as to all, notwithstanding that they may have several general guardians. Sup. CouH Hides, JSTo. 69. The referee should not rely upon the petition as evidence of the facts he is directed to ascertain and certify to the court ; bat he should examine witnesses as to those facts. See 4 Paige, 44; and 3 Id. 265. Peferee's report.'] The referee, after ascertaining the truth of the matters required under the order of reference, must make his report to the court. \ Under the late practice where the facts alleged in the petition were found to be true, it was sufficient for the referee to report briefly in reference to those facts ; and he was required only to state generally in his report that, from the examination of the witnesses before him, he had ascertained that aU the matters set forth in the petition were true. See 4 Paige, 44, 46. And it was sufficient, also, if he stated briefly the result of his inquiries as to the other matters which he was required to ascertain. lb. But under the present rules of the Supreme Court, the report of the referee is required to contain in itself, a statement of the particular reasons which, in the opinion of the referee, render*a sale of the premises necessary or proper, and of all the facts required to be ascertained and reported ; and he cannot now refer to the petition or affidavits for such statements. Svp. Court Pules, No. 67. For form of report, see Appendvm, No, 263. Order thereupon^ If the report of the referee is in favor of the application, and the proceedings are regular, and it appears satisfactorily to the court that such sale "is necessary and proper, the court will authorize the guardian to contract for the sale or other disposition of the property. 2 Pev. Stat. 195, sees. 175, 177. For form of order, see Appendix, No. 264. CH. XIII.] SALES OF THEIR REAL ESTATE. 45E Agreement of sale, and report of guardian.] After an agree- ment for a sale, leasing, or other disposition of the property has been made in pursuance of such order, the same must be reported to the court on the oath of the guardian making the same ; and if the report be confirmed, a conveyance wiU be authorized to be executed under the direction of the court. 2 Hev. Stat. 195, sec. 177. The agreement for the sale or other disposition of the prop- erty, should be made in writing, and should contain a clause or proviso that it is subject to the approval of the court. It should specify the terms of the sale, the manner in which the purchase money should be secured, and the time of payment. And, to prevent any dispute with respect to the terms and conditions of the sale, it should be signed by the special guardian, and the purchaser. 9Paige, 365. For form of report, see Appendix, E'o. 265. Order of confrmation.] If the agreement made by the guar- dian is approved by the court, it will direct an order to be entered, confirming his report, and directing a conveyance to be executed to the purchaser on his complying with the terms of sale. See 2 Hev. Stat. 195, sec. 177. For forms, see Appendix ]S"o. 266. The order will also direct as to the manner in which the pro- ceeds of the sale, if less than five hundred dollars, are to be invested or applied for the infant's benefit, after the costs of the proceedings are deducted, and will direct the guardian to make a return to the court of such investment or disposition. And the order wiU also provide for the payment or satisfaction of any claim of dower to which the premises are subject. 2 Barb. Ch. Pr. 215. It is proper, also, that the order should direct the guardian or other person intrusted with the disposition of the income of the proceeds, to render periodical accounts. This the court is required to do by the statute, 2 Rem. Stat. 195, sec. 179, post; and the direction should properly be given in the order directing the dis- position of the proceeds of sale. Or, if not given in such order, then in the order confirming the final report of sale. 2 Van Sant. Pr. 322. Cormegance Jyy special guardian.] Upon the report being 456 infants' estates. [ch. xiii. confirmed, the special guardian will execute a conveyance of the premises, in pursuance of the direction of the court. 2 Rem. Stai, 195, seo. lYY, swpra. The guardian should strictly pursue the order of the court in respect to the manner of the execution of the conveyance. He cannot convey the premises, except pursuant to such order. See 1 Kern. 52, post, p. 467. It is no objection to the conveyance that it is executed by the guardian conjointly with adult owners. 28 Mow. 409. Effect of the conveyance.] All sales, leases, dispositions, and conveyances, made in good faith by the guardian, in pursuance of the orders of the' court, when so confirmed, shall be valid and effectual, as if made by such infant when of full age. 2 Rev. Stat. 195, sec. 178. The sale, however, would be invalid, if the order appointing the special guardian was fraudulently obtained, — at least as to all persons who were parties or privies to the fraud. 17 Barb. 202 ; and see 4 Sand. Ch. E. 1. And so, the sale would be void, if ordered by the court contrary to the provisions of any last will, or of any conveyance by which the estate was devised or granted to such infant. 6 RUl 416 ; 2 Bev. Stat. 195, sec. 176 ; and see 10 Barh. 552. Where the court directs the sale of a farm in which four infants, as tenants in common, had a fee determinable as to each on his death without issue, and in which there was a devise over to the survivors upon such contingency, — it will be deemed that the court intended that the purchaser should acquire the whole title, and on any of the proceeds coming within the control of the court, it will require the infants, on becoming of age, to convey to the purchasers, as a condition of receiving such pro- ceeds. 3 Sand. Ch. R. 456. An adult cotenant who joins in a petition, praying the court to order a sale of the real estate held by him, and an infant, in cotenancy, is bound by the order made pursuant to his request. 38 Barb. 474. Mow mortgages to be given.] If a mortgage upon real estate is ordered to be taken for the purchase money of the premises, or any part thereof, the same must be taken in the name of the CH. ZIII.] SALES OF THEIR EEAL ESTATE. 457 treasurer of the coimty in which the order of sale is entered, or such other county treasurer as the court shall direct. Sicp. Court Rules, No. 81 ; Laws of 1848, p. 404, sec. 1 ; and see Laws of 1847, p. 340, sec. 71. Or, the court may direct the mortgage to be taken by and in the name of the general or special guardian of such infant. Laws of 1848, j?. 407, sec. 8. The proceeds of the sale."] From the time of the application to the court, the infant is considered a ward of the court, so far as relates to the property to be sold, its proceeds and iacome ; and the court shall make order for the application and disposition of the proceeds of such property, and for the investment of the surplus belonging to such infant, so as to secure the same for the benefit of such infant, and shall direct a return of such invest- ment and disposition to be made on oath, as soon as may be, and shall require accounts to be rendered periodically by any guardian or other person, who may be entrusted with the disposition of the income of such proceeds. 2 Rev. Stat. 195, sec. 179. If the proceeds of the sale exceed five hundred dollars, and the guardian.has not given security by mortgage upon real estate, he is required to bring the proceeds into court, or to invest the same under the direction of the court, for the use of the infant ; and the guardian shall only be entitled to receive so much of the interest or income thereof from time to time, as may be necessary for the support and maintenance of the infant, without the order of the court. Sup. Court Rules, No. 69. If the moneys are brought into court, they should be paid to the county tresurer of the county in which the order of sale is entered, 75. No. 81 ; Laws of 1848, p. 404, § 1 ; or, in the city and county of iTew York, to the chamberlain thereof, who is considered the treasurer of the county. 1 Rev. Stat. 370, sec. 29, And the county treasurer is required, within ten days after the first day of July, in each and every year, to make and file in the county clerk's oflSce of the coimty in which he resides, a report which shall contain a statement of all moneys or securities in his hands, belonging to infants or to other persons; for whom invested; how invested ; with a particular description of the securites be- longing to each infant, containing a statement of the amount due thereon for principal, and of the amount due thereon for interest, 458 infants' estates. [ch. xiii, with a particular statement of his account as to each infant, up to the first day of July preceding the date of said report ; the amount of fees charged by him ; the amount in his hands in- vested and uninvested, and to whom the same belong ; and if he has in his hands any moneys not invested, the report shall state the amount thereof; the length of time the same has been in his hands uninvested, and the reasons why the same has not been invested. The report, also, must state whether the money in his hands uninvested, is for principal or interest, and the length of time any principal sum shall have remained in his hands unin- vested during the year preceding the date of the report ; which report must be verified by the oath of the county treasurer to be in all respects true. Laws of 1859, p. 912, § 1. The statute, also contains further provisions, in reference to new or additional security to be given by a county treasurer ; fixing a penalty for neglecting to file a report ; extending the time for making and filing a report, &c, Ih. §§ 2, 3, 4. It is also provided by the statute, that the court may order any bond, mortgage, stocks, securities, or moneys, in tjie posses- sion or under the control of any county treasurer, to be trans- ferred and delivered to the general or special guardian of an infant, upon his giving security to the satisfaction of the court for the faithful execution of the trust. Laws of 1848, p. 407, sec. 8. And if the court has ordered any bond, mortgage, or other securities to be taken in the name of the guardian, the same shall be collected and invested by him as the court may direct. And such guardian shall annually file a report in the county clerk's office of the county where the property is situated. Ih. But no moneys arising from the sale of the real estate of an infant under the order of the court shall be paid over to his gen- eral guardian, except so much thereof, or of the interest or in- come from time to time, as may be necessary for his support or maintenance ; unless such guardian has previously given suffi- cient security on unincumbered real estate, to account to the infant for the same, in the usual form. Sup. Cov/rt Rules, Nos. 62 and 70 ; cmd see Code of Pro. % 420 ; Laws of 1848, p. 407, seo. 8. And no order shall be made for the payment of any such moneys to any person claiming the same, except upon petition, accompanied by a certified copy of the order, in pursuance of CH. XIII.] SALES OF THEIE HEAL ESTATE. 459 which the money was broiight into court, together with a state- ment of the county treasurer, city chamberlain, or other deposit- ory of the money, showing the present state and amount of the fonds, separating the principal and interest, and showing the amount of each ; and the court may take such proof of the truth of the matters stated in the petition as shall be deemed proper, or may refer the same to a suitable referee, to take proof and report thereon. Sup. Court Rules, No. 70. If a mortgage is given to the special guardian for the benefit of the infant, such guardian is the proper person to file a biU for the redemption and assignment of a senior mortgage upon the same premises. 3 Barb. 8. C. B. 534. Rights of infomts vn proceeds^ The statute declares that no such sale of the real estate of an infant, shall give to such infant any other or greater interest or estate in the proceeds of such sale, than he had in the estate sold. 2 Ren}. Stat. 195, sec. 180. The object of this provision was to protect the interests of those who might have future estates, vested or contingent, in the real estate sold. 1 Kern. 551, per Euggles, J. ; and see 4 Corns. 267. Where the shares of several infants were determinable fees, vidth executory devises to the survivors, and the whole estate Jn the land was sold, it was held, on the death of one of the infants, by which the devise over in her share would have taken effect if the land had not been converted, that her share of the proceeds must be paid to the executory devisees, and that her personal representatives had no right to such share. 3 Sa/nd. Ch. R. 456. But the interest which accrued on the proceeds in her lifetime, belongs to such representatives. JT). The proceeds of the sale are to be deemed real estate. Thus, it is provided by statute that the sale authoriiied by the statute is not only not to give an infant any other or greater interest in the proceeds of the sale than he had in the estate sold ; but the pro- ceeds are to be deemed real estate of the same nature as the property sold. 2 Rev. Stat. 195, sec. 180. And if the infant die under age, the proceeds will be subject to the same law of suc- cession as the property which produced them. 1 Duer, 286. But the character thus impressed upon the proceeds, ceases on the infant's attaining his majority and obtaining possession Vol. I.— 33 460 INFANTS' ESTATES. [CH. XIII. thereof. Accordingly, where the real estate of an infant was sold by order of the court, and a bond and mortgage thereon were taken to his special guardian to secure the purchase money ; and the infant, after his majority, settled the guardian's account touching the trust, and discha.rged him therefrom, took from him individually, a receipt for the bond and mortgage, and consti- tuted him his attorney to collect and reinvest the amount secured thereby in his discretion, and before the payment of any part of the amount, died intestate; it was held that the bond and mortgage, and the moneys secured thereby, were personal estate, and to be distributed as such. 1 Kern. 644, overruling 1 Barb. 215. The object of the statute was to preserve during the infant's minority, the character of the property in reference to the statutes regulating descents and distributions. Id. ibid ; and see 3 Sand. Ch. B. 456, 464, Infants unborn are not seized, and their interests, therefore, cannot be sold, because such interests do not exist. If a child should be bom, it will be vested with the interest in the share substituted for real estate and held by its coheirs. 27 Sow. 213 ; but see the dissenting opinion of Eobertson, Ch. J., II. 276. Filing inventory, and annual accountJ] The special guardian, within six months after the order confirming the sale of the estate, or any part thereof, is required to file in the office where the appointment is entered, a just and true inventory, under oath, of the whole estate committed to his care or guardianship, and of the manner in which any funds under his care or control, belonging to the estate, are invested; stating the income and profits of the funds or estate, and the debts, credits, and effects, so far as the same have come to his knowledge. Ch. Rules, 1844, ]S[o. 154; 2 Rev. Stat. 196, sec. 179. The special guardian is also required annually thereafter, so long as any part of the proceeds remain in his hands, or under his care or control, to file in the same office an inventory and account, under oath, of such guardianship or trust, &c. Tb. ; and see Laws of 1848, p. 407, sec. 8. If he neglects to file such inventory and account, as required by the above rule, in the settlement of his accounts, every pre- sumption will be taken most strongly against him. 3 Paige, 146. And the court will order him to file the inventory and account, CH. XIII. SALES OF THEIE REAL ESTATE. 461 and to pay the expense of the order and proceedings thereon is twenty days, or that an attachment issue against him. 2 Id. 409. It is the duty of the attorney procuring the appointment of the guardian, to advise him as to the necessity of filing his in- ventory and accounts, and of the consequences of his neglecting to do BO. Ih. Claim of dower ; how satisfied, cfec] If the real estate of an infant, or any part of it, shall he subject to dower, and the person entitled thereto shall consent in writing to accept a gross sum in lieu of such dower, or the permanent investment of a reasonable sum, in such manner as that the interest thereof be made payable to the person entitled to the said dower, during life, the court may direct the payment of such sum in gross, or the investment of such sum as shall be deemed reasonable, and shall be acceptable to the person entitled to such dower, in man- ner aforesaid ; which sums, so paid or invested, shall be taken out of the proceeds of the sale of the real estate of such infant. 2 Eev. Stat. 196, seo. 181. For the rule by which to compute the gross value of a widow's dower, see Appendix, No. 527. But before any such sum shall be paid, or such investment made, the court must be satisfied that an effectual release of such right of dower has been executed. 2 Rev. Stat. 196, sec. 182. The release of dower is usually annexed to, or indorsed upon, the guardian's deed of conveyance; and, strictly speaking, the money ought not to be paid to the widow, or invested for her benefit, until, on proof of such release, the court grant a further order directing such payment or investment. The usual course, however, in practice is, to provide in the order directing a con- veyance and disposition of the proceeds, that the guardian pay such sum in lieu of dower, or invest the same, on the release being duly executed by the widow. The guardian's final report will state the fact of such effectual release having been first executed, and the dower interest thereupon satisfied, which report, being confirmed, is deemed a substantial compliance with the statute. 2 Van Sant. Pr. 325. Costs of the proceedings.] The costs are to be first paid out of the proceeds of the sale. It is provided by the rules, that if the infant's interest in the property does not exceed one thousand 462 " infants' _ ESTATES. [CH, XIH. dollars, the whole costs, including disbursements, shall not exceed twenty-five dollars. Sv/p. Cowrt Rules, No. 69. But if several infants are joined in the same application, er several parcels of land are sold at different times, an allowance may be made for the extra expense beyond the twenty-five dol- lars at which the costs are limited. 4 Paige, 44. Where there are several infants, who are interested in the same premises, as tenants in common, and the application in behalf of all shall be joined in the same petition, as required by the rule, but one biU of costs will be allowed, notwithstanding that they may have several general guardians. Swp. Court Rules, No. 69. The costs in these proceedings are in the discretion of the court ; and when awarded, except as above limited, are to be at the rate allowed for similar services in civil actions. Laws 1854, p. 592, sec. 3 ; (vnte, p. 14, note h. Final report, and order thereon.] After the sale has been consummated, by the payment of the purchase money,, and the delivery of the deed to the purchaser, the guardian should make a final report of his proceedings to the court; stating what de- duction has been made from the proceeds for costs, whether an effectual release of the widow's right of dower was obtained, and the disposition that has been made of the balance of the proceeds. And an order should then be obtained confirming the report, and the sale, and conveyance, and the disposition, of the pro- ceeds; and also requiring the guardian to render periodica] accounts. 2 Barb. Gh. Pr. 217; 2 Van Sant. Pr. 327. For form of order, see Appendix, Nos. 269, 270. Papers to he fled.'] All the proceedings upon the sale of the infant's real estate, must be filed in the office where the order for the appointment of the guardian was entered, 2 PoA^e, 409 ; which last mentioned order should, no doubt, be entered in the clerk's office of the county where the real estate is situated. 8ee Laws o/1847,jp. 333, sec. 50; Ih.p. 641, «ec. 20. CH. XIII.] SFECinO PERFORMANCE BY rNFANTS. 463 SECTION" V. PROCEEDINGS TO COMPEL SPECIFIC PERFORMANCE BY INFANT OF CONTRACT OP ANCESTOR. The provision of the Eevised Statutes (2 Bev. Stat. 194, sec. 169), authorizing the court to decree and compel the specific per formance by an infant heir of the contract of his ancestor, was first adopted by the act of 1814, Zaws of 1814,^^. 128, 129, sec. 3 ; the object being to prevent the necessity of a special applica- tion to the legislature in cases where it was necessary to obtain the title before the infant became of age. /See Will. Eq^. Jur. 269. It supplied a defect at the common law, which furnished no remedy to compel an infant heir specifically to perform the con- tract of his deceased ancestor, until after the infant became of age. Ih. tn what cases^ At the common law, if the estate of the con- tracting party devolved upon an infant, by the death of the party to the contract, the remedy to enforce specific performance was delayed until the infant became of age. Ackirri's Eq. 81 ; Will. Eq. Jwr. 269. But by the statute, it is provided, that the court shall have power to decree, and compel, a specific performance by an infant heir or other person, of any bargain, contract, or agreement, made by any party who may die before the performance thereof, on petition of the executors or administrators of the estate of the deceased, or of any person or persons interested in such bargain, contract, or agreement, and on hearing all parties concerned, and being satisfied that the speci^c performance of such bargain, con- tract, or agreement ought to be decreed or compelled. 2 Rev. St. 97.) See Code R., W. S. 298. In what cases property may he attached.'] The statute pro- vides that the real and personal property of a debtor may be attached for the payment of his debts, in the foUovring cases : 1. Whenever such debtor, being an inhabitant of this State, shall secretly depart therefrom, with intent to defraud his cred- itors, or to avoid the service of civil process; or shall keep him- self concealed therein with the like intent. 2. "Whenever any person, not being a resident of this State, shall be indebted on a contract made within this State, or to a creditor residing within this State, although upon a contract made elsewhere. 2 Hev. Stat. 3, sec. 1. If the attachment is issued against a non-resident debtor, it is necessary that the creditor should reside within this State, or that the debt should arise upon a contract made within this State. 3 Com^s. 41 ; Sill <& Den. 447. But it is not necessary that all the members of a firm, doing business in this State, should reside therein, to authorize an attachment in their favor for a debt due from non-resident debtors on a contract made without the State. 3 Kern. 259. So, if one of two joint debtors is a non-resident of the State, an attachment may issue against him alone. 12 Bcurb. 298. An attachment will not lie on a judgment rendered by the court of a neighboring State, 1 mil 482 ; unless the judgment was rendered on a contract made within this State, 2 Rev. Stat. 3, sec. 3, as amended, Laws 1845, p. 153 ; nor on the original con- tract debt for which the judgment was recovered, — the debt being extinguished by the judgment. 1 Hill 482. And proceedings may be instituted by the trustees of a non- resident debtor for the collection of a debt due from another non-resident debtor. 21 Wend. 316. So, a non-resident cred- itor may institute proceedings against a non-resident debtor, if the debt is due on a contract made withia this State, Ih ; or even on a debt contracted abroad. 2 Bari. S. C. R. 436. Where application to be made.] Applications for attachments may be made to either of the following officers : justices of the 476 INSOLVENT DEBTOES. [CH. XIV. Supreme Court, county judges, recorders of cities ; and if made in the city of Schenectady, the mayor thereof. 2 Hev. Stat. 3, iec. 2 ; lb. 35, sec. 1. So, theymay be made to the judges of the Superior Court of the city of New York. 2 Duer 540 ; aff. 3 Kern. 259. See further on this subject, post, section vn. of this chapter. And see, also, the same section for the law in respect to continu- ■^ng proceedings in case of officer's death, etc. ^y whom application to he made.] The application may be made by any creditor resident within this State or out of it, or by his personal representatives, having a demand against such debtor personally, whether liquidated or not, arising upon contract, or upon a judgment or decree rendered within this State, or upon judg- ment or decree rendered elsewhere upon a contract made vsithin this State amounting to one hundred dollars or upwards, or by any two such creditors having such demands to the amount of one hundred and fifty dollars or upwards ; or by any three or more creditors having such demand to the amount of two hundred- dol- lars or upwards. 2 Hev. Stat. 3^ sec. 3, as amended Laws of 1845, j9. 153. And proceedings may be instituted by assignees of the demand sought to be collected, in their own names. 1 Sill 482. Corporations are deemed creditors within the meaning of the statute ; and are entitled, therefore, to institute proceedings for attachment, the same as persons. 2 Hev. Stat. 36, sec. 1, post, section vn. JTow application made, and affidavit required.] The statute requires the application to be in writing, verified by the affidavit of the creditor, or of the person making the same in his behalf, in which is required to be specified the sum in which the debtor is indebted, over and above all discounts, to the person in whose behalf the application is made, and the grounds upon which the application is founded. 2 Sev. Stat. 3, sec. 4. And the facts and circumstances to establish the grounds on which the application is made, are also required to be verified by the affidavits of two disinterested witnesses. Ih. sec. 5. Any material defect in the application or affidavit on which the attachment issues, will render all the proceedings void. CH. XIV.] ATTACHMEtiTTS UNDEE EETISED STATUTES. 477 Thus, the creditor's application must show either that the creditor resides within the State, or that the debt arose upon a contract made within the State. And in respect to the place of residence of the creditor, it is not enough to state this by way of recital or description merely ; as " J. S., of the city of New York, being duly sworn," &c. 3 Corns. 41 ; 4 Seld. 158 ; E. c& Den. 447. 'Eov is it enough that the affidavit of the creditor names him by way of recital as a resident of the State. Id. ibid. And so, the creditor must show that the debtor has secretly departed' from this State, with intent to defraud his creditors, or to avoid the service of civil process ; or, that he keeps himself concealed therein, with the like intent. And an application and affidavits only showing in substance (in relation to the abscond- ing and concealment) that the debtor had absconded from the city of New York, or concealed himself, to avoid the service of civil process, were held insufficient to give the officer jurisdiction, and that the attachment was void. 1 Seld. 164. But it is sufficient that the affidavits of the two witnesses state the non-residence of the debtor, or that, being an inhabitant, he has secretly departed from the State, or keeps himself concealed, with intent to avoid the service of civil process. And these affi- davits need not contain anything as to the nature of the debt, or the residence of the creditor. 21 Wend. 316 ; cmd see 3 Corns. 41. So, it is a compliance with the statute, if the affidavit is indorsed upon, and details all the material facts contained in the application, although, in terms the affidavit does not refer to it. 1 Kern. 331. And where it is doubtful whether the defendant has departed from the State or keeps himself concealed therein, with the intent specified in the statute, the application is suffi- cient, if it charge in the disjunctive that he has done one or the other. And the same rule will apply in respect to the intent of the debtor, where there is doubt as to his purpose. Ih. The affidavits of the two witnesses must state the facts and circumstances to establish the grounds of the application, and mere information and belief will not answer. Though if facts and circumstances are stated, tending to establish the grounds of the application, and fairly caUing on the officer for an exercise of his judgment upon the weight of evidence, the proceedings will not be declared void, notwithstanding that the officer errs in his estimate of the evidence. 4 Hill, 598 ; 21 Wend. 672, 478 DTSOLVENT DEBTOES, [CH. XIV. So, the affidavits of the witnesses must, in general, state facts and circumstances within their own knowledge; though infor- mation obtained from the family of the debtor, in answer to inquiries at his residence, are pertinent in connection with other facts, to show that he has left home, when he went away, where, and upon what business, he has gone, and how long he will be absent. Y Sill 187. Otherwise, however, if the information is obtained from persons not connected with the family. Ih. Witnesses may speak, too, upon information in reference to the solvency of the debtor. li. / omd see 18 Wend. 611 ; 7 Id. 490 ; 3 Seld. 500 ; 7 Barb. 183. Notice and warranty The statute provides that upon such proof being made to the satisfaction of the officer to whom the application is addressed, he shall order a notice to be published as hereinafter directed, and shall issue one or more warrants, as may be necessary, to the sheriff of every county in which any prop- erty of the debtor may be, commanding him to attach, and safely keep aU the estate, real and personal, of such debtor within his county, (except such articles as are by law exempt from execu- tion,) with all books of account, vouchers, and papers relating thereto. 2 Rev. Stat. 3, sec. 6. Publication of notice."] "Whenever a warrant of attachment is issued, under the statute, the officer issuing the same is required thereupon immediately to order the notice hereinafter directed to be published in the State paper, and in a newspaper printed in the city of New York, and in a newspaper printed in the county to which any attachment shall be issued, if there be one, and if there be none printed in such county, then in a newspaper printed nearest to such county. 2 Rev. Stat. 7, sec. 28, The statute does not prescribe the time within which the notice must be published after the issuing and service of the attachment ; and where the notice was published two years and seven months after the attachment was issued, it was held that the officer had not lost jurisdiction by the delay, and that an appointment of trustees made at a proper time after such publi- cation was valid. 3 Denio, 167. The notice must be published once in each week, for three months, in the case of an absconding or concealed debtor, and for CH. XIV.] ATTACHMENTS UNDER BEVISED STATUTES. 479 nine months in the case of a non-resident debtor. 2 Rev. Stat. 7, sec. 29. In the case of an absconding or concealed debtor, the notice shall state that an attachment has issued against the estate of the debtor, and that the same will be sold for the payment of his debts, xmless he appear and discharge the attachment according to law, within three months from the first publication of the notice ; and that the payment of any debts, and the delivery of any property belonging to the debtor, to him, or for his use, and the transfer of ainy property by him, for any purpose whatever, are forbidden by law, and are void. Ih. sec. 30. In the case of a non-resident debtor, the notice shall state the issuing of the attachment against his estate, and that the same will be sold for the payment of his debts, unless he appear and discharge the attachment, according to law, within nine months from the first publication of the notice ; and that the payment of any debts due to him by residents of this State, and the delivery to him, or for his use, of any property within this State belonging to him, and the transfer of any such property by him, are forbidden by law, and are void. II). sec. 31. EQ'ect of 'pvhlication of notice. \ All sales, assignments, trans- fers, mortgages, and conveyances of any part of the estate', real or personal, including things in action, of every such absconding or concealed debtor, made after the first publication of such notice, in payment of, or as security for, any existing or prior debt, or for any other consideration, and all judgments confessed by him after that time shall be absolutely void as against his creditors. 2 Rev. Stat. 8, sec. 32. All such dispositions of the estate of a non-resident debtor, real or personal, within this State, including things in action and demands against any residents of this State, made after the first publication of such notice, shall be absolutely void, as against his creditors. Ih. sec. 33. After the first publication of such notice, every person indebted to an absconding or concealed debtor, and every person having possession of any property belonging to the debtor shall account and answer for the amount of such debt, and for the valoe of such property, to the trustees who shall be appointed upon such attachment ; and every person within this State indebted to such 480 INSOLVENT DEBTORS. [CH. XTV non-resident debtor, or having possession of any property belong- ing to tbe debtor, shall in like manner acconnt and answer for the amount of such debt, and for the value of such property. II. sec. 34. And every payment made to a debtor after the first publica- tion of the notice, of any debt or any part thereof, and every delivery of any property belonging to a debtor for which any person is liable by the last section to account to any trustees ; shall be deemed fraudulent as against such trustees. Ih. sec. 35. Duty of sheriff on execution of wwrrant.'] The sheriff to whom the warrant is directed and delivered, is required immedi- ately to attach aU the real estate of the debtor and all his per- sonal estate, including money and bank notes, except articles exempt from execution ; and to take into his custody all books of account, vouchers, and papers relating to the property, debts, credits, and effects of the debtor, together with all evidences of his title to real estate ; which he is safely to keep, to be disposed of as hereinafter directed. 2 Mev. Stat. 4, sec. 7. He is also required, immediately on making the seizure, with the assistance of two disinterested freeholders, to make a just and true inventory of all the property so seized, and of the books, vouchers, and papers taken into his custody, stating therein the estimated value of the several articles of personal property, and enumerating such of them as are perishable; which in- ventory, after being signed by the sheriff and the appraisers, must, within ten days after the seizure, be returned to the officer who issued the warrant. lb. sec. 8, as amended Laws of 1840, p. 296. The sheriff is required, also, under the direction of the officer, to collect, receive, and take into his possession, all debts, credits, and effects of the debtor, and to commence such suits and take such legal proceedings in the name of the debtor as may be necessary for that purpose; and which suits and proceedings may be continued by the trustees to be appointed as hereinafter directed, until a final termination thereof Ih. Perishable goods may he sold.'] If any of the property seized by the sheriff, other than vessels, be perishable, he is required to sell the same at public auction, under an order of the officer who issued the warrant, and to retain in his hands the proceeds of the sale, after deducting his expenses, to be allowed by the officer : CH. XIV.] ATTACHMENTS UNDEB EEYISED STATUTES. 481 wMcK proceeds shall be disposed of in the same manner as the property so sold would have been, if it had remained unsold. 2 Bev.Stat. 4:,sec. 9; 14 Row. 346. Whenever a sale of perishable property is ordered by any officer, as authorized by the statute, he is required, in such order, to prescribe the time, place, and notice of such sale, and how the same shall be published. 2 Hev. Stat. 7, sec. 27. ' I*roceedmgs, if property is claimed h/ a third p47-son.] K any goods or effects, seized as the property of the debtor, other than vessels, shall be claimed by or iu behalf of any other person as his property, the sheriff shall summon and swear a jury to try the validity of the claim in the same manner and with the like effect as in case of seizure under execution. 2 JSev. Stat. 4, sec. 10. If, by their inquisition, the jury find the property of the good and effects so seized to be in the person so claiming them, the sheriff shall forthwith deliver them to the claimant or his agent • unless the attaching creditor shall, by bond with sufficient sure- ties, indemnify the sheriff for the detention of such goods and effects. And in case of such indemnity, the sheriff shall detain the goods and effects, to be disposed of as directed by the stat- ute. Ih., sec. 11. Where the sheriff seized goods under an attachment belong- ing to another person, and detained the same on being indemni- fied, after a jury called to try the claim interposed by the owner had decided in his favor, and Ijie sheriff was thereupon sued by the owner in trespass for seizing the goods, and judgment re- covered against him, on which execution was issued and returned unsatisfied ; it was held that the facts constituted a breach of the official bond of the sheriff, given for the faithful performance of the duties of his office, and that an action on the bond would lie against him and his sureties in behalf of the owner. 4 Corns. 173. If the property in such goods be found to be in the claimant, the costs and charges arising from the inquisition, to be allowed by the officer issuing the warrant, shall be paid by the attaching creditor ; but if it be found to be in the debtor, then the costs, and charges to be ascertained in the same manner, shall be paid by the claimant. 2 Jieo Stat. 4, sec. 12, as amended, Laws of 1841, f. 286. 482 INSOLVENT DEBTORS. [CH. XIV. Attachment of goods on 'board of vessel^ It is lawflil for the owners or masters of any ship or vessel on board of which the goods of any non-resident, concealed, or absconding debtor shall have been shipped in good faith, for the purpose of transporta- tion, without reshipment or transhipment in this State, to any port or place out of this State, to transport and deliver such goods according to their destination, not-withstanding the issuing of any attachment against the debtor, unless the attaching creditor, hi^ agent, or attorney, shall execute a bond, with sufficient sureties to any or either of the owners or masters of the vessel, on board of which such goods shall be shipped, conditioned to pay such owner or master all expenses, damages, and charges which may be incurred by such owners or master, or to which they may be subjected, for unloading such goods from said vessel, and for all necessary detention of said vessel for that purpose. Laws of 1841,^. 224, sec. 1. But the statute does not extend to any case where the owner or master, either before or at the time of the shipment of such goods, shall have received actual information of the issuing of such attachment, nor where the owner or the master of any ves- sel have in any wise connived at, or been privy to the shipment of such goods for the purpose of screening them from legal process, or for the purpose of hindering, delaying, or defrauding creditors. Ih. sec. 2. Attachments against domestic vessels, and proceedings thereon.] The statute provides, that when a vessel belonging to any port or place in this State, or any of the United States, or any share or any interest in such vessel shall be attached ; on the application within thirty days, thereafter, of any person claiming such vessel or share, or of his agent, the officer who issued the warrant may cause the vessel or share so seized to be valued by three indifterent men, to be appointed by such officer. 2 Bev. Stat. 5, sec. 13. Within two days after such appraisement shall be made, the claimant or his agent may execute a bond with sureties, to be approved by such officer, to the people of this State, in a penalty double the amoimt of such appraised value, conditioned that iu a suit to be brought on such bond, the claimant will establish that he was the owner of such vessel or share at the time of the seizure ; and in case of his failure to do so, that he will pay the CH, XIV.] ATTACHMENTS UNDER REVISED STATUTES. 483 amount of sucli valuation witli interest from the date of the hond, to any trustees who may be appointed on such attachment ; or in case none be appointed according to law, or the attachment De discharged, to such debtor or his- personal representatives. Ih. seo. 14. Upon such bond being executed and delivered to the officer he is required to order the vessel or share so seized to be dis- charged from the attachment ; and the sheriff wiU discharge such vessel or share accordingly. Ih. sec. 15. But the officer is for- bidden from taking such bond until reasonable notice of the names and residence of the persons offered as sureties in the bond be given to the attaching creditors. Ih. 14, sec. 11. And the attaching creditors may require the persons offered as sureties to justify the same as in civil actions. Ih. seo. 72. If trustees are appoiated upon such attachment, they are required immediately to commence a suit on such bond ; or in case none be appointed according to law, or the attachment shall be discharged, the debtor or his personal representatives may prosecute such bond. Ih. sec. 16. In such suit, the claimant may give in evidence, in bar of a recovery, that he was the owner of the vessel or share seized at the time of issuing the warrant. K he fail to establish such ownership, or if judgment shall pass against him by default, or on demurrer, the party prosecuting such suit shall recover the amount of the valuation of such vessel or share, with interest from the date of the bond, to be assessed as damages. Ih. seo. 17. If no claim be made by any owner of a domestic vessel, or of a share in such vessel, seized under any warrant of attachment, within thirty days after such seizure, and no bond be executed, as herein directed, by the claimant ; the vessel or share may be sold by the sheriff making the seizure, under an order of the officer issuing the attachment, to be granted upon the application of any attacHng creditor, whenever, in the opinion of such officer, a sale may be necessary. Ih. 7, seo. 25. And when a share in any domestic vessel shall be seized, if no claim to such share be' made by any owner thereof, as herein provided, within thirty days after such seizure, it may be sold by the sheriff, under an order of the officer issxdng the attachment, to be granted on the application of any joint owner, or of his agent. Ih. seo. 26, 484 INSOLVENT DEBTORS. [CH. XIV. Whenever a sale of a vessel or share of a vessel shall be ordered by any oflBcer, as herein authorized, he shall, in such order, prescribe the time, place, and notice of such sale, and how the same shall be published. Ih. sec. 27. Attachments against foreign vessels, and proceedirigs thereon.] The statute provides that whenever a foreign vessel, or a share or interest in any foreign vessel, shall be attached, such vessel or such share or interest may be valued in the manner above pre- scribed, upon the application of any person, who shall by his affi- davit swear that he is the owner thereof, or upon the application of the agent of such owner, who shall by his affidavit swear that he is such agent, and that he verily believes his principal to be the owner of the vessel or share so attached. 2 JSev. Stat. 5, sec. 18. Such notice of the application shall be given to the attaching creditors as the officer, to whom the same is made, shall deem reasonable. li. sec. 19. Within three days after Such valuation shall be returned to the officer who directed the same, the creditors at whose instance the attachment issued, shall execute a bond with sureties, to be approved by such officer, to the person in whose behalf such claim shall be made, in double the amount of the valuation, with a con- dition to prosecute such attachment to effect, and to pay such damages as may be recovered against them for seizing the said vessel or share, .in any suit that shall be brought against them within three months from the date of the bond, if it shall appear in such suit that the vessel, or share, or interest therein, so attached, belonged, at the time of issuing such attachment, to the person in whose behalf such claim shall be made. Ih. sec. 20. Unless such bond be given as above prescribed, the officer who issued the attachment shall grant an order discharging the vessel, share, or interest so claimed from such attachment, and the same shall be discharged accordingly. Ih. sec. 21. If, after an attachment has been levied upon a foreign vessel, a valuation of the same, or of the share or interest therein seized, be made, no other warrant of attachment shall issue against the same vessel, as being the property in whole or in part of the same debtor, until the security above prescribed shall be given by the person requiring such warrant. Ih. sec. 22. CH. Xiy.J ATTACHMEKTS UNDEK EEVISED STATUTES. 485 If, after the execution of any snch bond by an attaching creditor, the attachment shall be discharged, or the proceedings shall cease, by the omission to appoint trustees according to law, the debtor against whom such attachment issued or his agent, shall be entitled to claim such vessel, share, or interest, or the proceeds thereof if the same shall have been sold, only upon his discharging the bond so executed by such attaching cred- itor, or by his executing to such creditor a bond in a penalty double the valuation made as herein directed, with sureties to be approved by the officer who issued the attachment, condi- tioned to indemnify such creditor against all charges and ex- penses in consequence of the bond so executed by him. Ih. sec. 23. If the bond of the attaching creditor be not discharged, or he be not indemnified, as above directed, within one month after the debtor became entitled to claim such vessel, share, or interest, as above prescribed, such vessel, share, or interest may be sold by the sheriff in whose custody the same may be, upon an order of the officer who issued the attachment ; apd the proceeds of the sale shall be paid to the attaching creditor who executed such bond, for his indemnity. Ih. sec. 24. If no claim be made within thirty days after such seizure, by or in behalf of the owner of any foreign vessel, or of a share therein so seized ; such vessel or share may be sold by the sheriff making the seizure, under an order of the officer issuing the attachment, to be granted upon the application of any attaching creditor, whenever, in the opinion of such officer, a sale may be necessary. Ih. seo. 25. And when a share in any foreign vessel shall be seized, if no claim to such share be made by any owner thereof, as herein pro- vided, within thirty days after such seizure, it may be sold by the sheriff, under an order of the officer issuing the attachment, to be granted on the application of any joint owner or of his agent. Ih. sec. 26. Whenever a sale of a vessel, or share of a vessel, shall be ordered by any officer, as authorized by the statute, he is required in such order, to prescribe the time, place, and notice of such sale, and how the same shall be published. Ih. sec. 27. Defense in actions hrought hy dehtors.] If any person liable 486 INSOLVENT DEBT0E3. [CH. XtV. to account to any trustees, as before prescribed, for any debt or property, shall be prosecuted for the same by any debtor, he may give in evidence under the general issue, the fact of an attach- ment having been issued, and the publication of the notice re- quired by the statute, at the time of the commencement of such action, in bar thereof. 2 Bev. Stat. 8, sec. 36. Other persons may 'become attaching creditors.'] The statute provides that after any application shall have been made by any creditor for a warrant of attachment against any concealed or absconding or non-resident debtor, any other creditor of such debtor, having any demand against the debtor, then due, what- ever may be its amount, may file with the officer who issued the warrant, an affidavit specifying the sum in which the debtor is indebted to such creditor, over and above all discounts, and a petition stating the desire of the creditor to be deemed an attach- ing creditor. 2 Rev. Stat. 8, sec. 37. Upon the filing of such affidavit and petition, such creditor shall in all respects be deemed to be an attaching creditor, and entitled to the same benefits and advantages, and subject to the same responsibilities and obligations as the creditor at whose instance such attachment originally issued. Ih. sec. 38. Where a creditor intervenes, after proceedings have been commenced against an absconding debtor, he will be entitled to his costs and disbursements, though the amount found due from the debtor be ever so trifling. 6 Hill,. 356. Subsequent attachments deemed part of f/rst proceedings!] If, after the issuing of any warrant of attachment against any debtor, any other warrant shall be issued, pursuant to the statute, and shall be levied upon any property of such debtor, such subsequent warrant and seizure shall be deemed to be a part of the proceed- ings upon the first application, in the same manner as if such subsequent warrant had been issued by the officer who granted the first warrant. 2 Rev. Stat. 9, sec. 39. All the creditors, whether resident or non-resident, are en- titled to participate in the assets which may come to the hands of the trustees for distribution. 13 Barb. 452 ; and see 2 Sand. S. C. R. 68; s. c. 2 Code R. 62; Code R.,2V. S. 299; 33 Rari. 4:69 ; aff. 23 Ifew York, 169. CH. XIV.] ATTACHMENTS UNDER REVISED STATUTES. 487 Notice of first warrant, and 'proceedings thereon.] The officer who issued the first warrant shall, on the application of any creditor, subscribe and deliver to him a notice in writing, directed to the sheriff having such subsequent warrant, of the fact of a prior warrant having issued ; and upon sucb notice being served on such sheriff, he shall return to such officer an inventory of the property seized by him under such subsequent warrant, with all his proceedings thereon, in the same manner as if the same had been issued by such officer ; and all proceedings on the sub- sequent warrant shall be conducted in all respects as if the same had been issued by the officer who issued the first warrant. 2 Rev. Stat. 9, sec. 40. The officer who issued such subsequent warrant is required to transmit the petitions and affidavits upon which such warrant was founded, or relating thereto, to the officer who issued the first warrant, upon receiving from such officer a certificate of the time of his issuing the same ; and after the service of such no- tice, the officer who issued the subsequent warrant shall cease to exercise any authority by virtue of the application made to him. Ih. sec. 41. The creditors making the subsequent application, or who shall have £[led a petition and affidavit with the officer issuing the sub- sequent warrant, desiring to be deemed attaching creditors, shall be entitled to all the benefits and advantages, and subject to the same responsibilities and obligations, as the creditor at Whose instance the first warrant issued. li. sec. 42. Petition Iry debtor for a hearing and trial, and proceedings thereon.} Every person proceeded against as an absconding or concealed debtor, may, at any time before the appointment of trustees, as hereinafter mentioned, present a petition by himself or his attorney, verified by his oath or that of some other person, to the officer who issued the warrant against him, stat- ing that he is a resident within this State, and was not at any time within thirty days before the issuing of such warrant, or at any time thereafter, an absconding or concealed debtor, within the intent of article first of title first of chapter fifth of the second part of the Eevised Statutes ; and may therein pray that his allegations in that behalf may be heard and determined by the Supreme Court or the county court of 488 INSOLVENT DEBT0B8. [CH. XIV the county in which the officer resides. 2 H&o. Stat. 9, sec. 43. And every person proceeded against as a non-resident debtor, and any person in his behalf, may at any time before the appoint- ment of trustees, as hereinafter mentioned, present a petition verified by the oath of the person presenting the same, to the officer who issued the warrant against such debtor, stating that at the time of issuing such warrant the debtor so proceeded against, was a resident of this State; and may pray that the allegations in such petition may be determined by the courts above mentioned. 11. sec. 44. i The debtor, in either of the cases before mentioned, or his agent, is required, at the time of presenting the petition, to deliver to the officer who issued the warrant, a bond to the attaching creditors in the penal sum of one hundred dollars, with such security as shaU be approved by such officer, with a condition (preceded by a recital of the petition) that such debtor shall prove to the Supreme Court, or to the county court of the county, which- ever shall be inserted by such officer at his discretion, at the next term thereof, the facts set forth in such petition. Ih. sec. 45 ; Code, % 30, sub. 11. The officer with whom the petition and bond is filed, is required to report his proceedings, with the affidavits presented to Mm in relation to such proceedings, to the court named in the condition of such bond, on the first day of the next term thereof. II. sec. 46. The court to which the report shall be made, shall proceed to hear the proofs and allegations of the parties in a summary way, and shall determine whether the allegations in such petition have been satisfactorily proved ; unless the court shall deem it a proper case to be submitted to a jury, in which case, the court may, in its discretion, award a receiver to try the same, in such manner as the court shall direct, li. sec. 47. If the court determine that the allegations in the petition are proved, it shall grant an order, cancelling the bond given by, or in behalf of, the debtor, and discharging the Ivarrant or warrants that may have been issued against him, and thereby releasing all property which shall have been attached under such warrants ; which order shall terminate aU proceedings upon such warrants. Tb. sec. 48. CH. XIV.] ATTACHMENTS UNDER EEVISED STATUTES. 489 The court shall tax the costs and expenses of the debtor in curred in obtaining such order, and shall cause the same to be paid by the attaching creditor, and may enforce the payment thereof by attachment. Ih. sec. 49. If the court determine that the allegations contained in the petition are not proved, then the obligee, in the bond given by or in behalf of such debtor, may recover the penalty thereof with costs ; one moiety of the penalty may be retained by the obligee or his representatives ; and the other moiety shall be paid to the trustees to be appointed as hereinafter mentioned, to be disposed of by them, as part of the property and effects of such debtor ; or if no trustees be appointed, such moiety may be retained by the obligee. Tb. sec. 50. The application of the debtor for a hearing, and a hearing thereon ■will not preclude him from raising the question whether the affidavits upon which the attachment issued were sufficient to give the officer jurisdiction. 4 JEKll 598. In an action upon a bond, given to obtain the release of prop- erty seized under an attachment issued against a debtor as a non- resident, the defendants are estopped from denying the non-resi- dence of such debtor. 1 Selden 423. Petition hy third persons daiming the property, and pro- ceedings thereon.] If any person to whom a debtor shall have assigned or delivered any property, on a valuable consideration, or to whom the debtor may have made payments, after the pub- lication of the notice of attachment, shall desire to contest the fact of such debtor's being non-resideut, concealed, or absconding, within the meaning of the statute, he may do so on executing a bond similar to that required of a debtor in the previous forty- fifth section, and within the time allowed to the debtor for that purpose; and on his application to the court to which such pro- ceedings are, or shall be reported, the court shall direct such allegations to be tried by a jury, and shall direct the proper pro- ceeding for that purpose. 2 Hev. Stat. 11, sec. 51. Jury trial, and proceedings on certain honds.] A decision by a jury, in any case, where a trial may be had, pursuant to the provisions of the statute, if not set aside by the court, shall have the same effect in all cases as the determination of a court Vol. I.— 35 490 INSOLVENT DEBTORS. [CH. SXV. without sucli trial ; and tlie same proceedings may be had upon the bond executed by any other person than the debtor, as are herein provided in respect to the bond of such debtor, in the like cases and with the like effect. 2 Bev. Stat. 11, sec. 52. When the petition cmd land to stay proceedings.'] The pro- ceedings, upon any warrant, that may be issued, pursuant to the provisions of the statute, shall not be in any manner stayed or affected, by such petition or bond, given as hereinbefore pro- vided, until an order discharging such warrant shall be granted ; except that no sale of any property, other than such as may be perishable, shall be had, and no payment of any debts, shall be made by any trustees appointed under such attachment, until a determination be made by the court to which such petition shall be referred. 2 Bev. Stat.- 11 j see. 53. Application to discharge the warrant, and proceedings thereon.] The statute provides that every debtor against whom any warrant of attachment shall be issued, may, at any time be- fore the appointment of trustees as hereinafter mentioned, apply in person or by attorney to the officer who issued such warrant, for an order to discharge the same. 2 Bev. Stat. 11, sec. 54 ; 4 Hill 600. Upon such application, the debtor, or his agent shall execute and deliver to the officer to whom the same is made, a bond to the creditors prosecuting the attachment, in a penal sum double the amount of the debts sworn to by such creditors, with such sureties as shall be approved by the said officer, conditioned that they will pay to each attaching creditor the amount justly due and owing by such debtor to him at the time when he became an attaching creditor, on account of any debt so claimed and sworn to by him, with interest thereon. 2 Bev. Stat. 12, sec. 55. The bond shall also contain a condition that in the event of its ap- pearing that any sum of money was due to any attaching creditor, the said debtor will pay to every such creditor the costs and dis- bursements incurred in obtaining the attachment, and of the pro- ceedings thereon. Laws of 1833, Ch. 52, § 2. Upon such bond being executed and delivered, the officer is required thereupon to grant his order, discharging all warrants that may have been issued by him, or of which notice shall have CH. XIV.] ATTACHMENTS TINDEB EEVISED STATUTES. 491 been given to him against sncli debtor ; and no further or other proceedings shall be had under the provisions of. the statute, founded upon any demands included in such bond. 2 Hev. Stat. 12, sec. 56. Every such bond shall be held for the common benefit of all the attaching creditors, and may be prosecuted at any time within six months after its date, and not afterwards, by them jointly, or by any one of them separately, in respect to his separ- ate demand ; and in every such action the prosecuting creditor shall establish his demand inHhe same manner as in an action against the debtor. Ih. see. 57. Under the statute, a single creditor may maintain an action on the bond in his own name. 2 Corns. 388. And the obligor in the bond cannot object that it was made by the defendant in an attachment with only one surety. 4 Sdden 442. » In an action upon the bond the .plaintiff is not required to show the facts necessary to give jurisdiction to the officer who issued the attachment, or that the case was one in which an attachment might be issued according to the statute. 3 Denio, 567. Though, if the attachment is issued upon affidavits not sufficient to give the officer jurisdiction, this will render the bond invalid ; and the objection may be taken to its validity on that ground in an action to enforce payment of it. 7 Barb. 253. Trustees, their appointment, <&c.] If the debtor against whom the warrant of attachment shall be issued, shall not appear and satisfy his creditors within the time for that purpose limited in the notice hereinbefore directed, and if such warrant shall not have been discharged, the officer who issued the same, shall, within three months after the expiration of the time so limited, upon due proof of the publication of such notice, nominate and appoint three or more fit persons to be trustees for all the cred- itors of such debtor. 2 JRev. Stat. 12, sec. 58. If the appointment of trustees be not made within the time above prescribed, the warrant of attachment shall be deemed to be discharged and annulled. Tb. sec. 59. The officer making the appointment shall indorse thereon an order allowing it to be recorded, which shall entitle it to be recorded by the clerk of any county to whom it may be pre- sented for that purpose. H. sec. 60. d92 INSOLVENT DEBTORS. [CH. XIV. The trustees shall cause their appointment to be recorded in the office of the clerk of every county in which any property shall have been seized under the warrant of attachment against the debtor, within one month after their appointment. li. sec. 61. This provision of the statute is directory only ; and an omis- sion to comply with it within the time mentioned, will not vitiate the proceedings, or invalidate a conveyance of property made by the trustees. 3 Kern. 509. Effect of appoinPment of trvMees, &c.\ The appointment of trustees, the record thereof, and the transcript of such record duly certified, shall in all cases, except on hearing of a petition referred to any court as hereinbefore provided, be conclusive evidence that the debtor therein named was a concealed, abscond- ing, or non-resident debtor, within the meaning of the foregoing provisions, and that the said appointment and all the proceed- ings previous thereto, were regular. 2 R&o. Stat 12, sec. 62. But notwithstanding the statute, any person sought to be afFeeted by the appointment of trustees, may raise the question that the officer making the appointment had not, on the face of the proceedings, jurisdiction to issue the attachment. 1 Kern. S3l'; 3 Id. 509 ; 3 Co-ms. 41 ; 9 Wend. 469 ; 7 Barb. 182 ; 4 Hill 598. Though if the officer acquired jurisdiction to issue the attachment, the appointment of trustees precludes the debtor from alleging that jurisdiction had been lost by a subsequent irregularity. ' 3 Denio 167. Effect of death or insamity of debtor.'] Where any debtor against whom proceedings may have been commenced, as au- thorized by the statute, shall die or become insane', after the expiration of the time limited in the order for his appearance, the proceedings shall, notwithstanding, be continued to a final conclusion, in the same manner and with the like validity as if such debtor had lived or remained sane. 2 Eev. Stat. 13, sec. 63. If any debtor against whom any such warrant of attachment shall have been issued, shall die, or become insane, before the time limited for his appearance, the proceedings thereon shall be stayed, and the property seized thereby shall be delivered to his personal representatives, or to the committee of his estate. Ih. see. 64 CH. XrV.] ATTACHMENTS UNDEE REVISED STATUTES. 493 Sheriffs return, <&c.] Upon the appointment of trustees being made, every sheriff to whom any warrant against the estate of such debtor may have been issued shall return the same, with his proceedings thereon, to the officer who issued the same, or to the officer who issued the first warrant against such debtor, in case warrants shall have been issued by several officers ; and such officer shall cause the same to be filed within thirty days thereafter, in the office of a clerk of the Supreme Court. 2 Hev. Stat. 13, sec. 65. Every sheriff to whom a warrant may have been delivered, may be compelled by the officer having jurisdiction over the proceedings thereon to return such warrant and the inventory required to be taken by him, by an order of such officer, and by process of attachment for disobedience thereof, on the application of any creditor, or of the debtor, and on proof of the neglect of the sheriff. Ih. sec. 66. Affidamits, c&c, to healed.'] Every officer who shall issue any warrant, pursuant to the statute, shall cause the affidavits of the creditors presented to him, or transmitted to him, by any other officer, who shall have issued a subsequent warrant, to be filed in the office of the clerk of the Supreme Court within thirty days after receiving the same. 2 Jiev. Stat. 13, sec. 67. Report of officer, and effect thereof I\ Within twenty days after the appointment of any trustees by the officer, he is required to make a report to the Supreme Court, to be filed with the clerk thereof, of aU the proceedings had before, or done by him under the statute; after which the Supreme Court shall have jurisdiction over such proceedings. Such report, and a cer- tified copy thereof, under the seal of the court, and attested by the clerk, shall be conclusive evidence that the proceedings stated therein were had before such officer. 2 Rev. Stat. 13, sec. 68. ■ The requirement that the report of the officer shall be made and filed within twenty days after the appointment of trustees, is directory merely, and an omission to comply with the statute in that respect will not vitiate the proceedings or invalidate a con- veyance of property made by the trustees. 3 Kern. 509. The report of the officer must be first made before the court 491 INSOLVENT DEBT0E3, [CH. XIV. will entertain a motion in respect to the regularity of the pro- ceedings. 7 Wend. 490. Although the statute declares that the report shall be conclu- sive evidence that the proceedings stated therein were had before the officer, yet the jurisdiction of the officer to issue the attach- ment may be contested. 7 Barb. 183 ; 1 Kern. 331 ; 3 Id. 509 ; 3 Corns. 41. Motion to vacate the proceedwigs.^ The statute, as we have seen, provides, that after the officer has made and filed his re- port of the proceedings before him, the Supreme Court shall have jurisdiction over the proceedings. 2 Mev. Stat. 13, sec. 68, supra. Under this provision of the statute, the court is authorized to examine the proceedings from the commencement, and to set them aside, on motion, if found erroneous. 9 Wend. 467 ; 7 Id. 491*; 6 Id. 553_ ; 3 Denio 167, n/)te. But the court will not en- tertain the motion until after the officer has made his report. 7 Wend. 490. If a review of the proceedings is sought before the report is made, it must be had by certiorari. 2 Rev. Stat. 14, sec. 69, post. Upon examination of the report, the court may correct any errors therein, and may make such order as shall seem just ; and may remit the proceedings to the officer who issued the warrant, or to any other officer having authority to issue the same ; or the court may proceed to do such acts and things as remain to be done to complete the proceedings. II. sec. 70 ; 3 Denio 167, note. Certiorari to remove proceedings.'] The statute provides, that the proceedings had before any officer, under the statute, may be removed into the Supreme Court, previous to any report, by certiorari, at the rastance of the debtor, or of any creditor; but such certiorari shall not stay any proceedings upon the war- rant. 2 Hev. Stat. 14, sec. 69. Upon an examination of the return to such certiorari, the Supreme Court is authorized to correct any errors therein, and to mate such order as shall seem just ; and may remit the proceed- ings to the officer who issued the warrant, or to any other officer having authority to issue such warrant ; or the court may pro- CH. XIV.] ATTACHMENTS UNDER EEVISED STATUTES. 495 ceed to do such acts and things as remain to be done to complete the proceedings. li. sec. 70. If the attachment has been regularly issued, the officer grant- ing the same, cannot discharge it, except in one of the cases prescribed by the statute. He cannot supersede it upon affidavit contradicting the fact of the creditor's residence. Nor has the Supreme Court power to supersede an attachment, except upon the return of the officer issuing the same, to a certiorari directed to him. 3 Ba/rh. S. O. B. 229. Sureties, thevr justification, cfec.J Whenever any bond shall be executed by or in behalf of any debtor against whom pro- ceedings may be instituted under the statute, or by and in behalf of any claimant of any domestic vessel, or of any share in such vessel, attached as the property of such debtor, the same shall not be taken by the officer authorized to receive such bond until reasonable notice of the names and residence of the persons oflFered as sureties in such bond be given to the attaching creditors. 2 Bev. Stat. 14, sec. 71. And whenever any such bond shall be proposed, the attaching creditors may require the persons offered as sureties therein to estabhsh their sufficiency in the same manner and to the like extent as bail are required to justify in civil actions. li. sec. 72. When seizures under the statute to supersede other seizures.] A seizure made by virtue of any attachment under the provisions of this article, shall be deemed to supersede any such seizure that may have been previously made imder any warrant which shall have been issued at the instance of any overseers or superintend- ents of the poor against any person, pursuant to the provisions of law respecting the relief and support of indigent persons, or respecting the support of bastards, but the surplus of any prop- erty BO seized, after satisfying the creditors, shall be paid to the overseers or superintendents, at whose instance any warrant so superseded may have issued. 2 Bev. Stat. 14, sec. 73. 496 INSOLTENT DEBTOES. [CH XTV. SECTION n. PEOOEBDINGS FOE THE APPOINTMENT OP TRUSTEES OVER THE ESTATES OP DEBTORS CONFINED POR CRIMES. The proceeding here c&nsidered telates to proceedings to obtain the control and management of the estates of debtors confined for crimes ; and is entitled, " Of attachments against debtors confined for crimes." See article 2, title 1, chapter 6, of part 2, of the Eevised Statutes. 2 Hev. Stat. 15. When and ly whom application to he made.] The statute provides that whenever any debtor shall be imprisoned in the State prison for any term less than his natural life, and whenever any debtor shall be imprisoned in any penitentiary or county jail for a criminal offense for any term more than one year, application may be made by any creditor of the debtor, or by any of his relatives, or by any relative of his wife, for the ap- pointment of trustees to take charge of the estate of such debtor. 2 Rev. Stat. 15, sec. 1 ; 8 Bosw. 626. For form of application, see Appendix, No. 282. ^ To whom application to he made.] The application for the appointment of trustees must be made to one of the justices of the Supreme Court, a county judge, or recorder of the city ; and if made in the city of Schenectady, to the mayor thereof. 2 Men). Stat. 15, sec. 1 ; and see Id. 34, sec. 1. But no application can be made to any alderman of the city of New York. Ih. Trustees to he (appointed.] Upon producing a copy of the sentence of conviction of such debtor, duly certified by the clerk of the court under his seal of office, together with an affidavit of the applicant that such debtor is actually imprisoned under such sentence, and is indebted in any sum whatever, the officer td whom the application is made may immediately appoint two or more fit persons to be trustees of the estate of such debtor. 2 Bev. Stat. 15, sec. 2. CH. XrV.] DEBTORS CONFINED FOR CRIMES. 497 It is not necessary to have trustees of the estate of an im- prisoned debtor appointed in order to foreclose a mortgage upon his property; but the debtor must himself be made a party to the action. 8 Bosw. 61T. Effect of a-ppoiiiiment.'] The trustees are deemed vested ■with all the estate, real and personal, of the debtor from the time of their appointment ; and possess the same rights in and powers over such estate as are possessed by trustees of absconding debtors, as declared iu section vm., of this chapter. 2 Bev. Stat. 15, sec. 3 ; Ih. 41, sees. 6, 7. All sales, assignments, transfers, mortgages, and conveyances of any part of the estate, real or personal, including things in action, of every such imprisoned debtor, made after such appoint- ment, in payment of, or as security for any existing or prior debt, or for any other consideration, and all judgments confessed by him after that time, are declared to be absolutely void as against his creditors. 2 JSev. Stat. 15, sec. 3 ; 75. 8 ; sees, 32 to 36. And all such dispositions of the estate of an imprisoned debtor, real or personal, within this State, including things in action and demands against any residents of this State, made after such appointment, are absolutely void as against his creditors. Id. ibid. And after such appointment, every person indebted to the imprisoned debtor, and every person having possession of any property belonging to • the debtor, is required to account and answer for the amount of such debt, and for the value of such property, to the trustees appointed ; and every person within this State indebted to such imprisoned debtor, or having possession of any property belonging to him, is required in like manner to account and answer for the amount of such debt, and for the value of such property. M. ibid. Every payment made to the debtor after such appointment, of any debt, or any part thereof, and every delivery of any property belonging to the debtor, for which any person is liable, as afore- said, to account to the trustees, shall be deemed fraudulent as against such trustees. Id. ibid. And if any person liable to account to trustees, as above pre- scribed, for any debt or property, shall be prosecuted for the same by any debtor, he may give in evidence under the general issue, 498 INSOLVENT DEBTORS. [CH. IIV. the fact of such appointment having -been made at the time of the commencement of such action, in bar thereof. Id. Hid. Duties of trustees.] The trustees are required to pay the debts of the imprisoned debtor in the same manner as directed in section vin. of this chapter, and to account in like manner, and be subject to the same control, obligations, and responsibilities. 2 Sev. Stat. 15, sec. 4. And after paying such debts, and their disbursements and commissions, they are authorized, under the direction of the officer who appointed them, or of any justice of the Supreme Court, from time to time, to apply the surplus of any moneys in their hands to the support of the wife and children of such debtor, and of such other relatives as he may be bound to support, and to the education of his children. /5., as modi' fied ly Lawsofl%An,p. 323, sec. 16. Whenever any such imprisoned debtor shall be lawfully dis charged from his imprisonment, th« trustees so appointed shall deliver up to him all the estate, real and personal, of such debtor, and all moneys belonging to him remaining in their hands, after retaining a sufficient sum to satisfy the expenses which they may have incurred in the execution of their trust, and their lawful commissions. 2 Rev. Stat. 15, sec. 5. ■'5 General provisions.] The statute, also, makes certain parts of article Yth, title 1st, chapter 5th of part 2d of the Kevised Statutes, applicable to the proceedings here considered. That article may be found ia full (post) in section vn. of this chapter. CH. XIV.] TWO-THIRD ACT. 499 SECTION m. PEOCEEDINGS BY INSOLVENT DEBTORS TO OBTAIN DISOHAEGB FROM DEBTS. The first general act for tlie relief of insolvent debtors was passed by the Colonial Legislature, on the 5th July, 1755. The system prescribed by that act, and the amendments to it, were con- tinued in force by different subsequent acts, until January, 1T70, when it expired by its own limitation ; and no general system was afterwards adopted until the 17th April, 1784, when a general law was passed for the relief of insolvent debtors. The system thus adopted was afterwards amended at different times, and the legislature at length passed the act sometimes called the three- fourth act, of the 21st March, 1788, which was revised by the act of 1801. The latter act, which afforded relief only on the petition of three-fourths of the creditors, continued in force until April, 1811, when the like relief was authorized upon the petition of the debtor only, without requiring the concurrence or assent of any of the creditors. But the law of 1811, was itself repealed in less than a year after its passage, and the three-fourth act of 1801 revived, and this latter act continued until the adoption of the two-third system prescribed by the He vised Laws of 1813. See 1 a. L. 460, twU. The act of 1813 was subsequently amended by the laws of 1817 {jp. 41), and 1819, 0.115 ;) and the two-third system prescribed by it, was afterwards incorporated into the Bevised Statutes of 1830, which, with the amendments since made, now constitute the insolvent law of this State. A compliance with the provisions of the statute is a condition precedent to the discharge of an insolvent debtor fi-om his debts. 24 Barb. 649. And as the statute is designed to deprive credit- ors of all remedy for the recovery of their debts, it will be con- strued strictly, and will not be extended by implication beyond the fair and legitimate meaning of the terms employed by the legislature. 3 Paige, 339. Who may he discharged^ The statute provides that every insolvent debtor may be discharged from his debts in the manner 500 INSOLVENT DEBTOES. [CH. XIT. therein prescribed, upon executing an assignment of all his estate for the benefit of his creditors, and upon the provisions of the statute being complied with. 2 ReiJ. Stat. 16, sec. 1. The statute, howcTer, farther provides that if it shall appear on the hearing by the examination of the insolvent or otherwise, that such insolvent, at any time within two years before present- ing his petition for his discbarge, under the provisions of the stat- ute, in contemplation of his becoming insolvent or of his peti- tioning for a discharge, or knowing of his insolvency, has made an assignment, sale, or transfer, either absolute or conditional, of any part of his estate, real or personal, or of any interest therein, or has confessed any judgment, or given any security, with a view to give a preference for an antecedent debt to any creditor, he shall not be entitled to a discharge under the statute. 2 Rev. Stat. 20, sec. 24, as amended Tyy laws of 1854,^. 336 ; 2 Seld. 309 ; 2 Kern. 575 ; 7 Barb.^n ; 24: Id. 649 ; 28 Id. 416. And see further in respect to this exception, post, " When insolvent debarred from being discharged." The insolvent must be a resident of this State to entitle him to such discharge. 2 Rev. Stat. 35, sec. 2. And a foreigner, who, after residing seven years in this State, transacting business, returns home, taking his effects with him, uncertain whether he will return or not, loses his character of an inhabitant ; so that though he returns to this State after a sojourning of only three weeks in his native land, he is not entitled to be discharged as an insolvent debtor, if, after his return, he engages in no business, and his residence is of a temporary character merely. 4 Wend. 602 ; aff. 8 Id. 134. Petition, and hy whom signed.^ The proceedings to obtain a discharge are founded upon petition, which is required by the statute to be signed by the debtor, and also by so many of his creditors residing within the United States as have debts in good faith owing to them by such debtor, then due, or thereafter to become due, and amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States. 2 Rev. Stat. 16, sec. 2. The form of the petition is not prescribed by the statute ; but it is usually addressed to the oiBicer before whom it is intended to institute the proceeding, and should show that the debtor is CH. nv.] TWO-THIED ACT. 501 insolvent, and is desirous that his estate should be assigned to a suitable and proper person named therein, and pray that the debtor may be discharged from his debts. For form, see A^ pendix, No. 285. Creditors residing within the United States, and out of this State, are required to annex to their petition the original ac- counts, or sworn copies, and the original specialties or written securities, if any, on which their deinands arise or depend. 2 Eev. Stat. 36, sec. 9. And if the petitioning creditor has any mortgage, judgment, or other collateral security for the payment of his claim, he must add to his signature to the petition a declaration that the same is relinquished to the assignees to be appointed in the proceed- ings, li. 36, sec. 11, post. Though the omisson to do so, is not a defect depriving the officer of jurisdiction, but at most an irregularity, to which objections should be made before him. 12 Abb. 472 ; 19 Id. 281, s. c. 43 Barb. 108 ; though it would be otherwise, if, after rejecting the debt so secured, less than two- thirds in amount of the creditors, as shown by the petition, have united in the proceeding. 2 Seld. 309. If a corporation is the creditor, the petition may be signed by a director, or other officer l^ereof, thereto duly authorized under its common seaL 2 Mev. Stat. 36, sec. 7. And if part- ners, or joint companies, are creditors, the petition may be made and signed by either of the partners, or any one of such com pany. lb. sec. 8. Petitioning creditors.] Any of the creditors of the debtor residing within the United States may petition for his discharge. And a corporation is deemed a creditor within the meaning of the statute ; and may present, or unite in any petition as other creditors. The petition, as we have seen, may be signed by a director or other officer of the corporation thereto duly authorized under its common seal ; and any affidavit required of creditors by the statute, may be made and signed by such director or officer. 2 Eev. Stat. 36, sec. 7. The statute farther authorizes executors and administrators to become petitioning creditors for the discharge of an insolvent under the order of the surrogate to whom they may be liable to account, or of the Supreme Court, or any justice thereof. And 502 INSOLVENT DEBTOES. [CH. XIV. in sucli case they will be chargeable only for stieh sum as they shall actually receive on the dividend of the insolvent's estate. rb. 16, sec. 3. Laws of 1847, jp. 323, sec. 16. Formerly, it was held that a mere naked trustee could not be- come a petitioning creditor under the statute. 2 Paige, 602. Buf the law has been changed in this, respect, and now trustees, as well as receivers, and assignees, of the estate of any creditor of an insol- vent, whether created by operation of law or by the act of parties, may become petitioning creditors for the discharge of an insol- vent, under the order of a justice of the Supreme Court ; and shall be chargeable only for such sum as they shall actually receive on the dividend of the insolvent estate. Laws of 1850, j?. 392. Any creditor, also, of any copartnership firm, or of any joint debtors, may unite with any one or more of the members of any such copartnership firm, or with any one or more of any such joint debtors, in a petition for the discharge of such partner or partners, joint debtor or debtora, from his or their debts, under the provisions of the statute. Laws of 1849, p. 238. Creditors residing out of this State, and within the United States, may petition and unite in any petition,- in the same man- ner as resident creditors. But they are required to annex to their petition, the original accounts or sworn copies, and the original specialties or written securities, if any, on which their demands arise or depend. 2 Reii. Stat. 36, sec. 9. A creditor who has the body of his debtor in execution, can- not be a petitioning creditor under the statute. 2 Johns. Ch. M. 430. Though, no doubt, after the debtor is arrested upon exe- cution, if he is discharged in pursuance of the statute of 1857, the creditor may unite in the petition the same as if the execution against the body had not been issued. Laws of 1857, ch. 427, vol. 1, p. 580. The arrest and detention only amounts to a satis- faction of the judgment for the time being. See 15 Ahl). 205. If the petitioning creditor has purchased or procured to be assigned to him, any debt or demand against the debtor, in re- spect to whom or whose estate he is a petitioner, for less than the nominal amount of such debt or demand, and whenever any executor or administrator shall petition in respect to any such debt or demand, the person petitioning shall be deemed a cred- itor to the amount only of the sum or value actually, and in good CH. XIV.] TWO-THIKD ACT. 503 faitli, paid by him, or by bis testator or intestate, for sucb debt or demand. 2 Rev. Stat. 36, sec. 10. In a case under the old statute, where the insolvent debtor procured a person to purchase in an outstanding judgment for a nominal consideration only, and the purchaser afterwards became a petitioning creditor for the whole amount of the judgment, and that amount was necessary to make up two-thirds of all the money owing by the insolvent, and the debtor obtained a dis- charge ; it was held that the discharge was void. 1 Wend. 156. But the fact that a person becoming a petitioning creditor of an insolvent for the nominal amount of a debt purchased by him at a discount, rather than for the amount paid by him, will not of itself vitiate the discharge. To have that effect, the debtor must, with a view of obtaining a discharge, procure the creditor to become a petitioner for a larger amount than is in good faith due him. And, therefore, where the petitioning creditor purchased the demand three or four years before the debtor applied for his discharge, and there was no evidence that the creditor did not hold it as a debt against the insolvent, to the full amount, or that the latter had any knowledge of the circumstances attending such purchase, or of the amount paid for the demand ; it was held that the mere fact of the creditor signing the insolvent's petition as a creditor for the full amount of the demand, when he had purchased the same for a less amount, would not avoid the discharge. 7 Ba/rl). 577. The statute further provides, that whenever the petitioning creditor shall have, in his own name, or in trust for him, any mortgage, judgment, or other security, or assignment by way of security, for securing the payment of any sum of money upon any real or personal estate of the debtor, in respect to whom or whose estate he is a petitioner, he shall not become a petitioner in respect to the debt so secured, unless he shall add to his signa- ture to the petition, a declaration in writing that he relinquishes to the assignees or trustees, who shall be appointed pursuant to such petition, every such mortgage, judgment, or other security, for the benefit of all the creditors of such debtor, which declara- tion shall operate as an assignment of such mortgage, judgment, or security, to the assignees or trustees who shall be subsequently appointed under the proceedings upon such petition, and vest in them all the rights and interest of such petitioning creditor 504 INSOLVENT DEBTOES. [CH. XIV. therein. 2 Eev. Stat. 36, sec. 11. For form of declaration, see Appendix, at the foot of No. 285. And where such creditors have security for any part of the debts due the'n, and neglect to sign the declaration required by the statute, they will not be regarded as petitioners in respect to the debts so secured ; and when, after rejecting such debts, less than two-thirds in amount of the creditors of the insolvent, as shown by the petition, have joined in signing and presenting it, the officer to whom it is presented obtains no jurisdiction to grant a discharge. 2 Seld. 309. Eut if two-thirds in amount of the creditors, after rejecting such debts, have joined in the proceed- ing, such omission, it seems, would be only an irregularity, which would be waived, unless objection is made on the hearing before the officer. 12 Ahh. 472. Affidavits of petitioning creditors.^ Every such petition shall be accompanied by the affidavit of each petitioning creditor, to be taken before any officer authorized to take affidavits to be read in courts of record ; which affidavit shall state that the sum specified therein, and annexed" to the name of the petitioner subscribed to such petition, is justly due to him, or will become due to him at some future time to be specified therein ; and shall state the nature of the demand, and whether arising On any written security, or otherwise, with the general ground and con- sideration of such indebtedness; and that neither he, nor any person to his use, has received from such insolvent, or any other person, payment of any demand, or any part thereof, in money, or in any other way whatever, or any gift or reward whatsoever, upon any express or implied trust or confidence that he should become a petitioner for such insolvent. 2 H&o. Stat. 16, sec. 4 ; 24 Barb. 649. For forms, see Appendix, Nos. 287, 288. And when the petition is made by trustees, receivers, or assignees, they are required to make and annex to it the same affidavit required by the above section to be made by other petitioning creditors, except that they may state in such affidavit the nature of the demand in respect to which they become peti- tioning creditors, and whether arising on any written security or otherwise, with the general ground and consideration of such indebtedness, on information and belief, setting forth the grounds of their belief; and their affidavit shall be accompanied by the CH. XIV.] TWO-THIRD ACT. 505 affidavit of the insolvent, as to all matters wHch are so stated on information and belief. Lmos of 1850, jp. 392, sec. 2. Under tlie above provisions of tbe statute, tbe nature of the demand, with the general ground and consideration of the indebt- edness, must be set forth with particularity. And the statute is not complied with by an affidavit merely stating a sum to be justly due from the insolvent for two promissory notes given for an amount specified. And where the affidavit of one of the petitioning creditors, whose demand was necessary to be included to make up the required two-thirds in amount of aU the debts owing by the insolvent, gave no other statement of indebtedness ; it was held, that the officer to whom the petition was presented, acquired no I'urisdiction to proceed under the act, and that the discharge granted by him was void. 2 Hilton 338 ; and see 43 Barb. 476. When a corporation is a creditor, the affidavit required by the statute may be made and signed by a director or other officer thereof. 2 Hev. Stat. 36, sec. 1. And if partners or joint com- panies are creditors, the petition may be made and signed by either of the partners, or any one of such company. li. sec. 8. If the creditors reside out of this State, the affidavits sworn to by them, before a judge or clerk of a court of record of the State, district, or territory in which they reside, duly authenticated tmder the seal of such court, shall be received by every officer or court, in proceedings under the statute, in the same manner as if such affidavits were made before a proper officer in this State. lb. sec, 9. And so, also, where they are taken before a commis- sioner for the State of New Fork, residing in another State. Laws of 1850, p. 582. And where the affidavit is sworn to before such commissioner, the certificate of the secretary of State of the former State, proving the official character of the commis- sioner, is not necessary to give jurisdiction to the judge before whom the proceedings are pending. 24 Ba/rb. 416. Besides, the jurisdiction of the officer, in such case, it seems, may be shown by parol. lb. Insolmenfs affidavif] The statute has prescribed the form of the insolvent's affidavit, which must be annexed to the petition, account, and inventory, and must be sworn to and subscribed by such insolvent in the presence of the officer before whom the proceedings are instituted, who is required to certify the sama Vol. I 36 506 INSOLVENT DEBTORS. [CH. XIV. 2 Reo. Stat. 17, sec. 7. And in a case where the affidavit was not taken before the officer conducting the proceedings, the court held that the proceedings were invalid for that reason. 2 Aih. 175, s. c. 4c K D. Bmith, 306. And so, if the affidavit is not subscribed and sworn to before such officer, the proceedings will be invalid, notwithstanding that on the day on which the order to show cause was returnable, the officer signed the jurat to the affidavit. 2 Hilton 406, s. c. 9 AU. 366 ; Aff. 28 New York, 365. Nor will the defect be remedied by permitting the insolvent to make an additional affidavit on the hearing before the officer. 2 Abb. 175, supra. The following is the form of the affidavit prescribed by the statute : " I do swear (or, affirm as the case may be,) that the account of my creditors, and the inventory of my estate, which are annexed to my petition and herewith delivered, are in all respects just and true ; and that I have not, at any time or in any manner whatsoever, disposed of, or made over, any part of my estate, for the future benefit of myself or my family, or in order to defraud any of my creditors ; and that I have in no in- stance, created or acknowledged a debt for a greater sum than I honestly and truly owed ; and that I have not paid, secured to be paid, or in any way compounded with, any of my creditors, with a view fraudulently to obtain the prayer of my petition." 2 Hev. Stat. 17, sec. 7. Where the insolvent's affidavit, instead of stating that he had not disposed of or made over any part of his estate for the future benefit of himself or his family, stated that he had not disposed of or made over any part of his estate for the fiiture benefit of himself and family ; it was held that the discharge granted upon it was void. 43 Barb. 475. Insolvent's schedule.] The statute requires the insolvent to annex to, and deliver with, his petition, to the officer to whom it shall be presented, a schedule containing, 1. A full and true account of all his creditors ; 2. The place of residence of each creditor, if known to such insolvent ; and if not known the fact to be so stated ; 3. The sum owing to each creditor, and the nature of each debt or demand, whether arising on written security, on account, or otherwise ; CH. XIV.] TWO-THIRD ACT. 507 4. The true cause and consideration of such indebtedness in each case, and the place where such indebtedness accrued ; 5. A statement of any existing judgment, mortgage, or collat- eral or other security, for the payment of any such debt ; 6. A fall and true inventory of all the estate, both real and personal, in law and equity, of such insolvent ; of the incumbran- ces existing thereon, and of all the books, vouchers, and securities relating thereto. 2 Rev. Stat. 17, sec. 5. For forms, see Appen- dix, Nos. 289, 290. But the bare omission to insert the name of a creditor in the schedule, or the misstatement of the amount due any creditor, will not alone render the discharge invalid. The omission or misstatement must be intentional, with a view to a fraudulent concealment. 7 Barb. 576. Thus, also, where the debtor in his schedule puts the sum due to a creditor at an amount less than the true sum, the discharge will not be avoided unless the jury find it was done willfully and fraudulently. 17 Wend. 407 ; and see 7 Id. 239. And so, if it appears from the papers that the true cause and consideration of the alleged indebtedness are not set forth in the schedule in the manner required by the statute, this is a matter proper for the consideration and determination of the judge before whom the proceedings are commenced. And the creditors having the notice prescribed by the statute, will, if they neglect to appear and raise the objection, be concluded, in case the officer has the requisite jurisdiction ; except, as to matters which the statute declares shall avoid the discharge. 24 Barb. 649 ; and see 43 Id. 476. The debtor's schedule, however, should not be defective in respect to matters, which are necessary to confer jurisdiction upon the officer. Thus, it should not omit to state the amount owing to each creditor named in the schedule. And where the schedule was in blank as to the sum owing to one of the creditors therein named ; it was held that this was a jurisdictional defect which rendered the discharge void, notwithstanding it recited that two-thirds in amount of the creditors united in the petition, and that It satisfactorily appeared to the officer that the insol- vent had in all respects complied with the requirements of the statute. 2 Kern. 575. Nor should the schedule omit to specify with particularity, the nature of the debts, and the true cause and consideration of 608 INSOLVENT DEBTORS. [CH. XIV. the same. And, it seems, the statute, would not be complied with by merely stating a sum to be justly due the insolvent for two promissory notes given for an amount specified. 2 Hilton 238, ^er Brady, J. ; 43 Barb. 4c1Q,per Morgan, J. If the schedule is defective in any respect, as, if it fails to show the consideration of the debts owing by the insolvent, or omits debts due to him, or owing by him, he may remedy the defect by amendment, on the return day of the order to show cause. ^ Wend. 239 ; 2 Johns. 289 ; 2 Seld. 311; and see post, " Amending proceedings and waiver of defects." Officers to whom applications may he made.] The statute authorizes the application for the discharge of an insolvent from his debts, to be made to a justice of the Supreme Court, any county JTldge, or judge of any county court, recorders of cities, and in the city of Schenectady, to the mayor thereof. 2 Hev. Stat. 34, sec. 1 ; li. 17, sec. 6. It was, also, by the same statute, authorized to be made to circuit judges, and Supreme Court commissioners ; but those offices were abolished by the constitu- tion of 1846. Art. 14, sec. 8. The application in the city of New York may also be made to any judge of the Superior Court, 2 Jiev. Stat. 281, sec. 33 ; Zaws of 184Y, p. 281, sec. 1 ; 3 JTem. 259 ; or court of common pleas, Zaws of 1847, p. 281, sec. 7; and also to the city judge of that city, (a) 6 Aih. 144. But no application can be made to any alderman of the city of New York. 2 Hev. Stat. 34, sec. 1. Applications for the discharge of insolvent debtors may also be made in the city of Buffalo, to the judges of the Superior Court of that city, Laws of 1867, vol. l,p. 754, sec, 25 ; and in the city of Brooklyn, to the city judge thereof. Zaws of 1849, p. 174, sec. 26. It is further provided by the statute, that the application shall be made to an officer residing in the coimty in which the insol- vent debtor resides ; and that proof of such residence shall be made at the time of presenting the petition, and before any order shall be granted thereon. 2 liev. Stat. 35, sec. 2 ; 8 Wend. 134. But in case there is no officer residing within the county, and disinterested as creditor or otherwise, to whom application for a discharge can be made, then such application may be made to (a) But see cmte, p. 366, and note. CH. XIV.] TWO-THIBD ACT. 509 any sucli officer residing in any other county, but no place can be appointed for the hearing on any application out of the county in which the insolvent resides. 2 Rev. Stat. 35, sec. 4. In case of the death, sickness, resignation, removal from office, absence from the county of his residence, or other disability, of any officer before whom proceedings under the statute may have been commenced, the proceedings may be continued by his successor in office, or by any other officer residing in the same county, who might have originally instituted such proceedings, in the same manner, and with the like effect, as if originally commenced before him. Ih. sec. 5. If there is no officer in the same county, competent under the last section, to continue such proceedings, then any judge of the county courts may attend at the time and place appointed for the hearing of any matter, and may adjourn the same to the next county court, or court of common pleas, to be held in and for the county in which such hearing was appointed ; and the said court shall proceed therein, in the same manner, and with the like authority, as the officer who commenced such proceedings. Ih. sec. 6. Order to show cause, and for publication of notice.] The officer, upon receiving the petition, schedule, and affidavit, will make an order requiring all the creditors of the insolvent to show cause, if any they have, at a certain time and place, to be speci- fied by him, why an assignment of the insolvent's estate should not be made, and he be discharged from his debts. 2 Sev. Stat. 18, sec. 8. For form, see Appendix, No. 292. If the officer making such order be a judge of a county court, and not of the degree of counselor at law, the order shall require such cause to be shown at the term of such court, to be held next after the expiration of the time of publication of the notice thereof as directed by the statute ; and the order is re- quired to specify the time and place at which such term will be held. In every other ease the order shall require such cause to be shown before the officer to whom the petition shall be pre- sented. Ih. sec. 9. The hearing on the application should be appointed for some place in the county where the insolvent resides ; and this, too, though the application be made to an officer residing in another county, Ih. 36, sec. 4. 510 INSOLVENT DEBTOBS. [CH. XrV. The officer making the order is also required to direct notice of its contents to he pvhlished in the State paper, and in a news- paper printed in the county in which the application is made, if there be one, and if there be none, in a newspaper printed nearest to siich county. And if one-fourth part in amount of the debts owing by such insolvent shall have accrued in the city of New York, or be due to creditors residing there, such officer shall also designate a newspaper in that city, in which such notice shall be published. /5. 18, sec. 10. If all the creditors of such insolvent reside at a less distance than one hundred miles from the place at which they are required by such order to show cause, the said officer, also, shall direct such notice to be published once in each week for six weeks suc- cessively ; and if any such creditors reside more than one hundred niUes from such place, the notice shall be directed to be published once in each week for ten weeks successively. Ih. sec. 11. The statute further makes it the duty of the officer granting the order, to direct, in all cases where any of the creditors of the insolvent reside in the United States, and where the place of such residence is known to the insolvent, the service of notice of such order on each of said creditors in person or by letter, addressed to him by mail at his known and usual place of residence, and if such service shall be personal, it shall be at least twenty days, and if by mail, then forty days before the day fixed for showing cause against such discharge. Laws of 1847, jp. 470. Puhlication and service of notice.^ The notice of the con- tents of the order to show cause must be published and served according to the directions of the officer granting such order. And the due publication and service of the notice is necessary to give the officer jurisdiction, and to authorize him to grant a dis- charge which shall bar the claims of creditors.. 16 £ari. 319 ; 3 Cowen 59 ; 19 Bow. 238, s. c. 10 Abb. 468. Though these questions, it seems, would not be inquired into, except upon a direct proceeding by certiorari or appeal to review the proceed- ings. 2 Kernan, 575, per Denio, J. ; 28 Barl. 416 ; O'Conndl v. Sutherland, Superior Court, Bosworth, J., Nov., 1862. The notice is usually directed to the creditors by name, recites the order to show cause, and is signed by the insolvent. For form, see Appendix, No. 293. Where the notice served was CH. XIV.J TWO-THIRD ACT. 511 without signature, and stated an order made by another officer than the one before whom the proceeding waa pending, it was held upon certiorari to review the proceedings, that the notice was insufficient, and that the defect was not cured by the sub sequent discharge. 19 Bow. 2b8, s. o. 10 Abb. 468. The notice to be published is not required to be inserted at length in the newspaper ; but it is sufficient if it is published in the following manner : first, a general heading, stating whether such notices are for the purpose of being discharged from debt, or for the purpose of having the person exonerated from imprison- ment, shall be prefixed to each class of applicants ; next, the name of the applicant ; next, the date of the first publication of the notice ; next, the name of the officer before whom creditors are required to appear ; next, the place appointed for such ap- pearance ; next, the time for such appearance. And every such publication shall be deemed as valid, as if such notice had been published at length. 2 Hev. Stat. 648, aec. 44. For form, see Ajppendix, No. 294. The notice, as we have seen, must be published in the State paper, and also in a newspaper printed in the county where the application is made, if there is one ; and if not, in a newspaper printed nearest to the county. And where one-fourth part in amount of the debts owing by the insolvent, shall have accrued in the city of New York, or be due to creditors residing there, the notice must also be published in a newspaper in that city, to be designated by the officer before whom the proceedings are commenced. 2 Refo. Stat. 18, sec. 10, supra. The notice, if all the creditors reside at a less distance than one hundred miles from the place appointed for the hearing, must be published once in each week for six weeks successively ; and if any of the creditors reside more than one hundred miles from such place, then once in each week for ten weeks successively. 11. see. 11, supra. For form of affidavit of publication of notice, see Appendix, No. 296. The fees of the printer for publishing the notice are seventy- five cents per folio (one hundred words) for the first insertion, and thirty cents for each subsequent insertion after the first. Laws of 1859, p). 551, sees. 1 and 2, repealing 2 Sev. Stat. 648, sec. 43. Notice, also, aa we have seen, must be served upon each of the 512 INSOLVENT DEBTOBS. [CH. XIV. creditors residing within the United States, where such residence is known to the insolvent. Lmjoa of 1847, _p. 470, supra. The service may be personal or by letter addressed to the creditor by mail at his known and usual place of residence. If the service is personal, it must be at least twenty days before the time appointed for the hearing, or if by mail, then forty days before such time. lb. For form of affidavit of service, see Appendix, No. 295. If the State is a creditor of the insolvent, the notice may be served on the attorney-general, who, in proceedings under the statute, represents the State. 2 Beo. Stat. 39, sec. 30, amended hy Laws of 1859, p. 8. In computing the time for the publication and service of the notice, the first day is to be excluded, and the last included ; thus, personal service on the 1st for the 21st of any month would be sufficient. See 7 How. 372. And so, if the service is by mail, it is good if the letter is deposited in the post-office on the 1st September for the 11th October. 12 Id. 493 ; 16 Barb. 347. The first publication of the notice, if directed to be published six weeks, must be at least forty-two days, or six fiill weeks, before the day appointed for the hearing ; or if directed to be published ten weeks, then at least seventy days, or ten full weeks, before such day ; and publication must be made in every inter- vening week, or until the expiration of the time directed. 1 Wend. 90 ; 19 H(m. 238, s. c. 10 Abb. 468. It is usual, and would be safer, in all cases, to give the notice seven insertions if tor six weeks, or eleven if for ten weeks ; thus making forty-two days or seventy days, as the case may be, from the first publica- tion to the last, exclusive of the day of the first publication (a). Id. iMd; and aeeper Hand, J., 16 Barb. 351 ; 20 Id. 148. Searing before the officer, and proceedings thereon.'] The stat- ute provides that on the day or at the term appointed in the order to show cause, or on any subsequent day or term that the officer (a) In the case of a sale of real estate on execution, however, in which the time and place of the sale is required by the statute to be publicly advertised previously for six weeks successively, it was held by the Court of Appeals, (three of the judges dissenting,) that it was a sufficient compliance with the statute to publish the notice in six successive numbers of a weeltly newspaper, although the first publicafon may be less than six weeks prior to the sale. 21 NswTork, 150. CH. XIV.] TWO-THIBD ACT. 513 or court, before wliom cause is required to he shown, may appoint, the officer or court, as the case may be, shall proceed to hear the proofs and allegations of the parties. 2 Hev. Stat. 18, sec. 12. And the officer is not bound to wait for parties beyond the arrival of the precise time appointed ; though he may do so, in his dis cretion. 2 Sill 415 ; 6 Wend. 632. The proceedings, liowever, would be vacated, if any trick or artifice is practiced, by which parties are prevented from appearing at the precise time ap- pointed. 13 Johns. 385. Before proceeding to hear the proofs and allegations of the parties, and before any proceedings are had on the day appointed for showing cause, proof must be given, to the satisfaction of the officer, of the service of notice upon the creditors in the manner prescribed by the statute. Zaws of 1847, p. 470, sec. 2. And before any proceedings are had, other than the hearing of such proofs and allegations, proof will also be required of the publi- cation of such notice. 2 Hev. Stat. 18, sec. 12. For forms of affidavits of service and publication of notice, see Appendix, Nos. 295, 296. And due legal proof of such publication is necessary, in order to give the officer jurisdiction. 16 Barb. 319, supra. Though if the officer, without such proof, assumes to act, and grants a discharge, the discharge would be held bind- ing, except in a direct proceeding, by appeal or certiorari, to review the officer's decision. 28 Barb. 416 ; 2 Kernan, 575, per Denio, J. ; (?' Connell v. Sutherland, New York Superior Court, Bosworth, J., Nov., 1862. The creditors may appear at the time mentioned in the order to show cause, and contest the insolvent's right to a discharge. And where the creditors have been duly served with notice of such order, if they fail to appear and raise objections, they will be concluded, in case the officer has acquired jurisdiction of the proceeding, except, however, in respect to matters which the stat- ute declares shall avoid the discharge. 24 Barb. 649, supra ; 13 Johns. 386. In respect to such matters, see infra, under the head of " Discharge, when void." The right of the creditors to appear and contest the proceed- ings is confined, it seems, to the creditors recognized as such by the insolvent, in his schedule, or to those having subsisting claims against him. 6 Abb. 144, 146. The statute authorizes every creditor opposing the discharge, 514 INSOLVENT DEBTOES. [df. XIV. at the time appointed for tlie first hearing, to demand of the offi- cer or court before whom the hearing shall be had, that the case of such insolvent be heard and determined by a jury ; and such creditor is entitled to an order to that effect, upon filing with such officer or court, a specification in writing, 'of the grounds of his objections to such discharge. 2 Reu. Stat. 18, sec. 13. For forms of specifications and order, see Appendix, Nos. 297, 298. Upon such demand being made to any court before which a hearing shall be had, a jury shall be drawn, in the same manner as for the trial of civil causes, from tlie jurors summoned and attending such court, who shall be sworn by the court well and truly to hear, try, and determine the validity of the objections specified. 2 Rev. Stat. 19, sees. 14, 16. But if the demand for a jury be made to a single officer, he is required to nominate eighteen reputable freeholders of the county, and to issue a summons to tlie sheriff or any constable of the county, commanding him to cause the persons so nominated to appear before such officer at a time and place to be specified in the sum- mons, not less than six, nor more than twelve, days from the time of issuing the same. li. sec. 15. For form of summons, see Appendix, !N». 299. At the time and place so appointed, twelve of the persons so summoned and appearing shall be balloted for and drawn, in like manner as jurors in a court of record (2 liefu Stat. 420) ; and shall be sworn by such officer well and truly to hear, try, and determine the validity of the objections so specified. 2 Bev. Stat. 19, sec. 16. Every person summoned as a juror, who shall refuse or neg- lect to attend without reasonable cause, to be determined by the officer issuing the smnmons, shall forfeit ten dollars, to be recov- ered by any creditor at whose instance such summons was issued ; and in ease of his neglect to prosecute for the same, then it shall be competent for the insolvent to sue for and recover the said penalty. U>. 37, sec. 17. The sheriff or constable summoning a jury, shall be entitled to receive one doUar and twelve and a half cents ; and each juror attending and sworn, twenty-five cents. The said fees, together with all other expenses of the hearing of any case by a jury, shall be paid by the creditors requiring the same. Ih. sec. 18. The jury so drawn and sworn, either by a court or any officer, having heard the proofs and allegations of the parties, shall deter CH. XrV.] TWO-THIED ACT. 515 mine tlie matters submitted to them ; and for that purpose, shall be kept together by some proper officer, to be sworn, as is usual, in like cases in courts of record, until they agree upon their ver- dict ; and such verdict shall be conclusive in the premises. Tb. sec. 17. The verdict so rendered, shall be recorded by the court or officer ia the minutes of the proceedings. Ih. sec. 18. And when any of the matters required to be established previous to granting an order of assignment, shall have been submitted to a jury as provided by the statute, and shall have been found in fevor of the insolvent, such finding shall be conclusive as to such matters, upon the officer or court before whom the proceed- ings are pending, and the officer or court shall direct an assign- ment accordingly. 75. 21. sec. 26. ' The statute further provides that there shall be but one hearing before a jury. And if such jury cannot agree after being kept together for such time as the officer or court shall think reasonable, that then they shall be discharged ; and the court or officer shall decide upon the merits of the application as if no jury had been called. Tb. 19, sec. 19. The court or officer is required by the statute to keep minutes of the material parts of the testimony delivered before him, and of the examination of any debtor. Jh. 37, sec. 16. And he is required, also, within three months after the proceedings shall have been consummated, to file all the proceedings with the clerk of the county in which such officer resides. Tb. 39, sec. 27. The officer or court may adjourn the proceedings from time to time for the convenience of parties or otherwise. lb. sec. 13. Witnesses, and emdence on the heanng.'] The statute provides that' on the hearing of the petition, the officer or court before whom the same may be pending, may adjourn the same from time- to time, and may issue a subpoena, requiring the wife of the debtor, or any other person, whether an opposing creditor or not, to appear and testify concerning the subject matter ; and the debtor, and any creditor may in all cases be examined at the instance of any creditor. 2 Eev. Stat. 37, sec. 13. The appear- ance of every person duly subpoenaed, and neglecting or refusing to appear, may be enforced by attachments, to be issued by such officer or court ; and if, after appearance, any such person shall refuse to testify, he shall be committed to prison until he submit. 516 INSOLVENT DEBTOES. lC3. XIV. lb. sec. 14. Every person disobeying such subpoena, willfully, shall forfeit one hundred and twenty-live dollars, to be recovered by, and in the name of, the party at whose instance he was sub- poenaed. Jh. sec. 15. The statute further provides that upon the application of any creditor of such insolvent, the officer who made the order for publication of notice, may, at any time not less than three weeks previous to the day or term fixed for the hearing of such petition, by written order, require the insolvent to bring before such officer, or before the court, at the time appointed for the hearing, the wife of such insolvent, if she do not reside within this State, to the end that she may be examined as a witness. Ih. 19, sec. 20. If such non-resident wife do not attend at the time and place specified in such order, the insolvent shall not be entitled to his discharge, unless he shall prove, to the satisfaction of such court or officer, that he was unable to procure the attendance of his wife, for the purpose of being examined. Th. sec. 21. At the hearing of the petition before a jury, or otherwise, the insolvent may be examined on oath, at the instance of any creditor, touching his estate or debts, or any matter stated in his schedule ; and may be required to state any changes that have occurred in the situation of his property since the making of such schedule, and particularly whether he has collected any debts or demands, ocmade any transfers of any part of his real or personal estate. But this section shall not be construed to prevent any such- creditor from contradicting or impeaching, by other competent testimony, any e\'idence given by such insolvent. Ih, 20, see. 22. Effect of changes in insoJ/oent^s property after his petition is presented.'] If it appears on the examination, or otherwise, by competent proof, that such insolvent has collected any debts or demands, or made any transfer, absolute, conditional, or other- wise, of any part of his real or personal estate, since the making of the schedule annexed to his petition, he shall be required to pay forthwith to the offi cer, or to the clerk of the court before whom the hearing shall be had, the full amount of all debts and demands so by him collected or received, and the full value of all property so by him transferred, except such parts of the said debts and property as shall satisfactorily appear to the officer or court, to have been necessarily expended by such insolvent for the sup- CH. XrV.] TWO-THIED ACT. 517 port of himself or his family. And no discharge shall be granted to him nnder the provisions of the statute untU such payment be made, or security satisfactory to the officer or court be given that such payment shall be made within thirty days thereafter, to the assignees of such insolvent. 2 JRev. Stat. 20, sec. 23 {a). When insolvent debarred from ieing discharged.'\ The stat- ute provides that if it shall appear on the hearing, by the exam- ination of the insolvent, or otherwise, that said insolvent has at any time within two years before presenting his petition for his discharge, under the provisions of the statute, in contemplation of his becoming insolvent, or of his petitioning for a discharge, or knowing of his insolvency, such insolvent has made any assign- ment, sale, or transfer, either absolute or conditional, of any part of his estate, real or pergonal, or of any interest therein, or has confessed any judgment, or given any security, with a view to give a preference for an antecedent debt to any creditor, he shall not be entitled to a discharge under the statute. 2 Sev. Stat. 20, sec. 24, as amended hy Laws 'of 1854, p. 336 (5). An assignment of all the debtor's property to trustees for the payment of his debts, is, as against the debtor, conclusive evi- (o) The following is the Revisers' original note to this section : " New. It is sup- posed the assignment passes only the property which the insolvent had at the time of its execution and delivery; as no retro-active effect seems to be given by the act. The consequence would appear to be, that he would not be required to account for property sold or debts collected since the presentation of his petition. The above section has been drawn to prevent such conduct, and to remove any doubt that might exist, whilst a suitable provision has been made for the support of the debtor and his family." Beo. Notes, 3 Eeo. Stat, 2d ed., 618. (6) Prior to the amendment of this section in 1854, there was no limitation of the time within which the assignment must have been made. The amendment consisted in inserting in the section the words " within two years before presenting his peti- tion," (fee. The following is a portion of the Eevisers' Note to the original section : " The preferences given to some creditors are always unjust towards the others; and are frequently used as mere artifices to secure a provision for the insolvent after his discharge. The universal complaints of the mercantile part of the community, have long pointed out this great evil There seems no other effectual means of checking it Perhaps under the present law, some preferences would be deemed fraudulent ; but there Is obvious utility in prohibiting them in the cases specified, in this section, so far as to say, that if the insolvent wiU make them, he must not ex- pect the aid of the laws of his country to exonerate him from his debts, to those credit- ors whom he has already done all in his power to injure. Thus, preferances may continue to be made either with the assent of creditors, or at the hazard of losing i.he benefits of the insolvent laws." 3 Bev. Stat. 2d ed. 618. 518 INSOLVENT DEBTOES. [CH. XIV. dence of Lis insolvency at the time of its execution; and such an assignment giving a preference to some of the creditors ia the payment of their demands, will prevent the debtor from obtaining a discharge under the statute, if it appears on the return of the order to show cause that such assignment has been made. 2 Seld. 309. Such assignment, however, will not of itself have the effect to render the discharge invalid ; but it is cause only for defeating the insolvent's application on the hearing before the officer, or, if the discharge is granted notwithstanding the assignment, of re- versing the proceedings on a direct review of them upon cer- tiorari. See 7 Barb. 576 ; 24 Id. 649 ; 28 Id. 416 ; 2 Kern. 575 ; 7 Wend. 240 ; 24 Id. 364. And so, also, the debtor will be prevented from obtaining a discharge under the statute, where, in contemplation of applying for such discharge, he confesses a judgment on which his property is sold, although it be confessed to a trustee for the benefit of all his creditors, without preference ; the judgment and sale under it being considered an assignment in fraud of the statute. 7 Wend. 239. Assignment, and to whom made.] If it appears satisfactorily to the officer or court before whom the application is pending, in cases where no jury has been required, or the jury have disagreed, that the insolvent is justly and truly indebted to the petitioning creditors in the sums by them respectively mentioned in their affidavits ; that such sums amount in the aggregate to two-thirds of all the debts that were owing by such insolvent, at the time of presenting his petition, to creditors residing within the United States ; that such insolvent has honestly and fairly given a true account of his estate, and has in all things conformed to the mat- ters required of him by the statute ; the officer or court before whom the application is pending will direct an assignment of all the insolvent's estate, both in law and equity, in possession, reversion, or remainder, excepting from the articles mentioned in his inventory, such articles of wearing apparel and bedding as in the opinion of the officer or court shall be reasonable and neces- sary for such insolvent and his family to retain, and also the arms and accoutrements required by law to be provided by any citizen enrolled in the militia. 2 £ev. Stat. 20, sec. 25. For form of assignment, see AppeTidix, No. 300. CH. XIV.] TWO-THIBD ACT. 519 Whenever any of the matters in tlie last section, required to be established previous to granting an order of assignment shall have been submitted to a jury, as provided by the statute, and shall have been found in favor of the insolvent, such finding shall be conclusive as to such matters upon the officer or court before whom the proceedings are pending, and the officer or court shall direct an assignment accordingly. lb. 21, sec. 26. The statute directs that the assignment shall be made to the person or persons who shall have been nominated as assignee or assignees by the petitioning creditors, or by such a number of the petitioners as shall have' owing to them a major part of the debts constituting the two-thirds, as required by the statute. 11. sec. 27, {a). Before proceeding to the discharge of his duties, the assignee is required to take and subscribe an oath that he will well and truly execute the trust reposed in him by his appointment, according to the best of his skill and understanding ; which oath must be filed with the officer appointing him. 2 JRev. Stat. 41, sec. 5. For form of oath, see Appendix, No. 303. It is the duty of the assignees, upon application, to make and deliver to the insolvent a certificate, under their hands and seals, stating that the insolvent has assigned and delivered for the use of all his creditors all his estate so directed to be assigned, and all the books, vouchers, and securities relating to the same. The certificate must be imder the hands and seals of the assign- ees, and executed in the presence of the officer before whom the proceedings are had, or of two witnesses, and proved by the affidavit of one of them. 2 Hev. Stat. 21, sec. 29. For form of certificate, see Appendix, No. 301. If the assignees, or any of them, refuse to sign a certificate of the fact that such assignment has been executed, upon com- plaint made to the officer or court who directed the assignment, the assignee so refusing shall be cited to appear, and the matter shall be investigated. 2 Bev. Stat. 38, sec. 23. And if it appears that such assignment has been duly executed, and that such insolvent has delivered all his estate directed to be assigned, and all the books, vouchers, and securities relating to the same, (a) The statutory provisions relating to the powers, duties, and obligations of assignees, under the statute, may be found ipost, in section Tin. of this chapter. 520 INSOLVENT DEBTORS. [CH. XIV capable of delivery, such officer or court may grant a discharge of the debtor, notwithstanding the refusal of the assignees to certify the fact of an assignment. 11. sec. 24. Or, in such case, the officer or court may revoke the appointment of assignees, and grant a certificate of such revocation, which shall be recorded in the office of the clerk of the county; and thereupon the assignment that may have been previously executed to the assignees so refusing to certify shall be void. II. sec. 25. And the officer or court shall thereupon direct a new assignment to be made, to such persons as shall be appointed for that purpose; and in case of such new assignment being executed, the certificate of the assignees to the fact shall be required ia the same manner as of the first assignees, lb. sec. 26. The assignment is required to be recorded by the clerk of the county in which it was executed, upon being acknowledged or proved, in the same manner as deeds of real estate ; and such original assignment, the record thereof, and the transcript of such record, shall be received in evidence, in the same manner and with the like eflect as deeds of real estate duly recorded. 2 Rev. Stat. 38, sec. 20. After the assignment has been duly recorded, the clerk's certificate to that effect should be procured for the purpose of being produced before the officer on the application for the insolvent's discharge. lb. 21, sec. 29. For form of certificate, see AppendwB, "Eo. 302. Effect of the assignment.'] The statute provides that the assignment shall vest in the assignees all the interest of the insol- vent at the time of executing the same, in any estate or property, real or personal, whether such interest be legal or equitable ; but no contingent interest shall pass to the assignees by virtue of such assignment, unless the same shall become vested within three years after the making of the assignment; and in case of its becoming so vested, it shall pass to the assignees, in the same manner as it would have vested in such insolvent if no assign- ment had been made by him. 2 Bev. Stat. 21, sec. 28 {a). {a) The following is the Eevisera' original note to this section : "Declaratory of the effect of the assignment. Under the existing law, it is a question how far, and to what extent contingent interests are transferred, and which is now in litigation in the Cqurt of Chancery. Without intending to intimate any opinion whatever on that subject, the Eevisera have thought it their duty to propose this section, in order to CH. XIV.] TWO-THIED ACT. 521 An assignment of all the debtors estate, real and personal, passes tlie title to all the lands which he owns, without further description. And therefore, lands owned by him, though not mentioned in his inventory, pass by such assignment. 2 HiU, 61. And so, where property has been fraudulently conveyed by an insolvent debtor, who is subsequently discharged under the statute, his interest in the property passess to his assignees for the benefit of his creditors, although such property is not em- braced in the inventory. 2 Paige, 289. Property held in trust, will not pass by the insolvent's assign- ment ; and if that property consists of goods remaining in specie or of notes, and other choses in action, the cestui que trust is entitled to the property, and not the general creditors of the insolvent. 10 Johns. 63. Until the assignment is made, the property inventoried re- mains in the insolvent, and his interest in it passes by a con- veyance voluntarily made, or by operation of law, notwithstanding his petition. 8 Wend. 339. And per Savage, Ch. J., in the case cited, " I am unable to see how the creditors had obtained any lien upon this property ; there had been no act of the officer deciding the right of the insolvent to his discharge, or of the creditors generally to the property; and until the property is assigned, it is subject to the control of the insolvent. He may sell it, and though it may be improper in him to do so, the pur- chaser acquires a valid title. The insolvent is not bound to prosecute his proceedings ; and if he does so, it is not a matter of course that he is to be discharged ; at least, in contemplation of law. The title to the property cannot be affected until it is assigned according to the statute." Ih. 348. Discharge, and when granted.'] . The statute provides that upon the insolvent's producing a certificate under the hands and seals of the assignees, executed in the presence of such officer, or of two witnesses, and proved by the affidavit of one of them, stating that such insolvent has assigned and delivered for the use of all prevent doubts as to future assignments. Some limitation seems necessary, as other- wise tlie assignees would not know when they had closed the management of the estate, or they must sacrifice the interests of the debtor unnecessarily, by selling a remote expectancy which at the time can have little value." Reo. Notes, 3 Eev. Stai. 2d ed. 619. * Vol. I.— 37 522 INSOLVENT DEBTOES. [CH. XTV. his creditors, all Ms estate so directed to be assigned, and all the books, vouchers, and securities relating to the same ; and upon his also producing a certificate of 'the county clerk, that such assign- ment has been duly recorded in his office, the officer or court who directed such assignment, shall grant to such insolvent a dis- charge from his debts and from imprisonment, which shall have the effect declared in the succeeding sections of the statute (post). 2 Hev. Stat. 21, sec. 29. For form of discharge, see Appendix, No. 304. The discharge is required to be recorded by the clerk of the county in which it is granted ; and the original discharge, the record thereof, and a transcript of such record duly authenticated, are made by the statute conclusive evidence of the proceedings and facts therein contained. 2 Bev. Stat. 38, see. 19 ; and see infra, 12 Wend. 102 ; 2 Xern. 575. Recording of discharge and other papers.^ The discharge is required to be recorded by the clerk of the county in which it was granted. 2 Bev. Stat. 38, sec. 19, as amended, 1866, chap. 116. And the assignment, also, is required to be recorded by the clerk of the county in which it was executed, upon being acknowl- edged or proved in the same manner as deeds of real estate. 2 Eev. Stat. 38, sec. 20. So, all the petitions, affidavits, schedules, inventories, orders, and other papers upon which any discharge shall be granted, are required, within three months from the granting thereof, to be filed and recorded by the clerk of the county in which the insol- vent resided at the time of the presentation of his petition, or such discharge shall thereafter be inoperative until such papers shall be duly filed and recorded. 2 B&o. Stat. 38, sec. 19, as amended Laws of 1866, ch. 116. Effect of the discharge.] The statute provides that a dis charge granted pursuant to its provisions shall discharge and exonerate the insolvent from all debts due at the time of the assignment, or contracted before that time, though payable after- wards, founded upon contracts made within this State, or to be executed within this State ; and from all debts owing to persons resident within this State at the" time of the first publication of CH. XrV.] TWO-THIRD ACT. 523 the notice of the application for such discharge, or owing to per- sons not residing within this State, who united in the petition for his discharge, or who shall accept a dividend from his estate. 2 Bev. Stat. 22, sec. 30 {a). The discharge also exonerates such insolvent from all liabili- ties incurred by him by making or indorsing any promissory note or bill of exchange, previous to the execution of his assign- ment ; or incurred by him in consequence of the payment, by any party to such note or bill, of the whole or any part of the money secured thereby, whether such payment be made prior, or subse- quent, to the execution of the assignment by such insolvent. 75. sec. 31 (5) ; 9 Wend. 312. The statute further provides that every such discharge shall also exonerate the insolvent to whom it shall be granted, from any arrest or imprisonment thereafter, in any suit, or upon any proceeding founded upon any debt, whatever, contracted by him previous to the execution of the assignment of his estate, as di- rected by the statute ; or in any suit, or upon any proceeding, founded upon any liabilities incurred by him by making or in- (a) This section, as found in the Revised Statutes, recites the statute as being a revisal and continuation of the act entitled, " An act for giving relief in cases of Insolvency," passed the 12th April, 1813, and limits the effects of the discharge to contracts made since the said 12th April. The Revisers' original note to the section is as follows : " § 8 i?. i. 464. In drawing this section, an effort has heen made to conform it to the decisions of the Supreme Court of the United States in the cases of Sturgea vs. Crowninshield, 4th Wheaten 122 ; McMillen vs. McNeile ; It. 209 ; and Ogden vs. Sanders, 12th Wheaten, 213, and to the decision in Baker vs. Wheaton, 5 Mass. 509. It would be difScult to abstract those cases, further than is done by the section itself. It has been thought advisable to declare expressly that this article is a reenactment of the act of 1813, so as to include contracts made after the passage of that act, according to the decision of the Supreme Court in 1 9 Johns. 153. The principle in that case, was, that no act by which greater facilities are given to obtain a discharge, can affect a contract made previous to its passage. This principle has been scrupulously observed in the revision of this article, while greater facilities have been given to creditors to detect frauds. 3 Bev. Stat. 2d ed. 619. (6) The following is the original note of the Revisers to this section : " Laws of 1819,^. 118, § 11, extended to the case of makers of notes, &c., and to liabilities arising from a payment by an indorser after the discharge. The creditor holding the instrument, is entitled to a dividend upon it ; and there seems no greater reason for making the debtor liable for such a debt becoming due after his discharge, than for any other debt. Indeed, It is clearly within the equity of the act ; and a technical rule, only, has exempted it from its operations. See the cases 1 J. C. 73 ; 2 Caines, Gas. 310." 524 INSOLVENT DEBTOES [C!H. HV. dorsing any promissory note or bill of exchange, previous to the execution of his assignment ; or incurred by him in consequence of the payment, by any party to such note or bill, of the whole or any part of the money secured thereby, whether such payment be made prior or subsequent to the execution of his assignment. 11. 33 ; 3 Seld. 500. And if the insolvent is in piison, in any suit or proceeding founded upon any contract or liability in which he is exempted from imprisonment according to the last section, he will be discharged therefrom, upon producing the discharge granted pursuant to the provisions of the statute, and upon in- dorsing his appearance on any mesne process upon which he may be so imprisoned. 2 Eefo. Stat. 23, sec. 34 ; 2 Hill 205 ; af. 7 Id. 385. It has been held that the discharge is an absolute bar to a recovery upon a contract made and to be executed within this State ; although the creditor be a non-resident, and neither united in the petition for the discharge, nor accepted a dividend. 19 WeTid. 150. And per Bronson, J., in the case cited : " The two clauses of the 30th section do not limit or qualify each other, but each provides for different classes of cases. The debt is dis- charged, ^rs^, where the contract was made within this State; second, where the contract was to be executed within this State ; third, where the creditor at the time of the first publication of notice was a resident of this State ; and, fourth, where the creditor, being a non-resident, either united in the petition for a discharge, or has accepted a dividend from the insolvent's estate. In the first two classes of cases, the residence of the creditor is unimportant ; in the last two, the place where the contract was made, or was to be executed, are matters of no moment." And see 29 How. 296, ZOZ,per Gierke, J. It seems, however, that the discharge will not operate upon contracts made elsewhere, though to be performed in this State, where a citizen of another State is the creditor. Thus, where on a purchase of goods of merchants in iff ew York by a citizen of South Carolina, a note was given payable in the latter State, upon which judgment was subsequently obtained in its courts, and the defendant was afterwards discharged from his debts un- der the insolvent laws of South Carolina ; it was held in an action commenced in the courts of this State, that the discharge was invalid, as against the creditor who was not a resident of the CH. XIV.] TWO-THIBD ACT. 525 State where the discharge was granted. 3 Sdd. 500, 503. As between citizens of the same State, the discharge of an insolvent by the laws of that State, is valid, so far as it affects posterior contracts ; but it seems, as against citizens of other States, it is invalid as to aU contracts. Ih. 503, per Gardiner, J. ; and see 26 Wend. 53 ; 4 Bosw. 54. But see 29 How. 296, s. c. 19 Alh. 152 ; and see also, under the next head, infra, relating to the effect of the discharge upon the remedy of the creditor. Where, however, the creditor comes in and accepts a dividend of the assigned property from the assignees, he wiU not be per- mitted to object to the validity of the discharge as to his debt on the ground that the creditor was not a resident 6i the State, or that the debt was contracted out of the State, or before the passage of the act under which the debtor obtained his discharge. 7 Paige, 373 ; aff. 26 Wend. 43, 54. And so the discharge will not exonerate the debtor from lia- bility upon a contract made in another State, between parties not inhabitants of this State at the time the contract was made, although previous to presenting the petition for the discharge, they became such inhabitants. 2 Wend. 457. The effect of the discharge upon negotiable paper, is, to destroy its negotiability. It discharges the debt for which the note is given; the note becomes functus officio, and the person to whom it is transferred, after the discharge, acquires no right to maintain an action upon it. 3 Wend. 135 ; 4 Id. 241. The discharge operates, also, to discharge a previously exist- ing judgment obtained against a debtor for a tort. 19 Wend. 629, 630, and noU; 17 Id. 479; 24 Id. 364; 5 Hill 242. It extinguishes the judgment as effectually as if it had been paid or released. And where the debtor was arrested on a ca. sa., issued upon such a judgment after the discharge ; it was held that the party at whose instance it issued, as well as the attorney who issued it, were liable for false imprisonment ; and this, too, whether they were previously notified of the discharge or not. Tb. But the discharge after a verdict, and before judgment ia an action for a tort {e. g. trespass) does not protect or discharge the defendant from his liability upon such judgment. 2 Wend. 248 ; and see 10 Abh. 409. Otherwise, however, if the judgment was rendered in an action upon contract. 1 Cowen, 165. 526 INSOLVENT DEBTORS. [OH. XIV. If a discharge is granted after judgment, as the debtor in such case has had no opportunity in court to plead the discharge, he will be relieved on motion, and a perpetual stay of proceedings on the judgment againsthim wiU be ordered. 19 Wend. 150. And though the creditor may impeach the discharge for fraud ; yet he cannot disregard it, and issue execution on the judgment, and sustain the execution and levy by affidavits of the fraud. But the execution will be set aside, and the plaintiff left to his action on the judg- ment. 7 B^ow. 85 ; 20 Id. 97 ; 11 Abb. 344 ; 14 Id. 291 to 295, and notes ; 10 Id. 258, note ; 9 Wend. 431 ; 1 Cowen 50 ; 9 Johns'. 259 ; 1 Cwmes 249. Nor will the court allow the levy to be retained as security. 7 How., supra ; but see 1 Id. 181 ; 1 Cowen 165. Though where the creditor has levied an execution, aud on a motion to set it aside, he presents facts showing pre- sumptively that the discharge may be successfully assailed, the levy will be retained, and an issue directed to be tried in the original suit, to test its validity. 3 Sand. S. G. M. 700 ; and see 14 Abb. 295, per Daly, F. J. The statute further provides that if the insolvent, after his discharge, shall be arrested on mesne process, in a suit upon any debt or liability in which he is exempted from imprisonment, as declared in the statute, and shall apply to any officer to discharge him from such arrest, the officer shall cause reasonable notice to be given to the plaintiff in such suit, to show cause why such in- solvent should not be discharged from such arrest. 2 Hev. Stat. 38, sec. 21. And the plaintiff in such suit may show as cause against such discharge, any fraud committed by the insolvent in obtaining his discharge, or any cause for avoiding such discharge declared in the statute ; and the officer may require the insolvent to be held to bail in such process, as if no discharge had been granted. Jb. sec. 22 ; 7 Rov3. 89. Where any creditor or creditors of any copartnership firm, or of any joint debtors, unite with any one or more of the members of such copartnership firm, or with any one or more of any such joint debt- ors, in a petition for the discharge of such partner or partners, joint debtor or debtors, from his or their debts, and a dischai^e is granted in pursuance of the prayer of the petition, such discharge has the effect to exonerate such partner or partners, joint debtor or debt- ors, from all and every individual liability incurred by reason of such connection ; but the discharge, in such case, will not exoner- CH. XrV.J TWO-THIRD ACT. 527 ate from liability any copartner or joint debtor, except such as may be designated by the petitioning creditors. Laws of 1849, p. 238 ; Laws of 1838, p. 243. But the discharge of one of two joint debtors, before payment of his codebtor, will not affect the claim of the codebtor for con- tribution against the discharged debtor, towards the payment of the debt by the other, made subsequent to the insolvent assign- ment. 9 Omoen 128 ; 27 How. 188. Effect of the discharge upon the creditor^ remedy.] The statute provides that in any action which shall be brought against such insolvent or his personal representatives, a dis- charge granted pursuant to the provisions of the statute, may be pleaded, or given in evidence, under the general issue and notice thereof, in bar of any action upon any contract made by such insolvent since the twelfth day of April, 1813, within this State, or to be executed within this State ; or made with persons resi- dent within this State, at the time of the first publication of the notice of the application for such discharge ; or made with per- sons not residing within this State, who shall have united in the petition for such discharge, or who shall accept a dividend from the estate of such insolvent ; and in bar of any action upon any liability of such insolvent, incurred by making or indorsing any promissory note or bill of exchange, previous to the execution of his assignment ; or incurred by him in consequence of the pay- ment, by any party to such note or bill, of the whole or any part of the money secured thereby, whether such payment be made prior, or subsequent, to the execution of the assignment by such insolvent. 2 Eev. Stat. 22, sea. 32 ; 3 Seld. 500. The above section was enacted the same as reported by the Kevisers. And in their original note to the section, the Revisers refer to the distinction taken in cases decided by the Supreme Court of the United States, between a law discharging debts, and a law denying a remedy for their collection. And they propose the section to enable parties to avail themselves of that distinc- tion ; so that in the fluctuating state of the law on the subject, if it should be held that a discharge does not operate to extin- guish the debt, " it shall yet protect the person receiving it from suits in our own courts." 3 Rev. Stat. 2d ed. 619 ; and see 29 How. 296, 304, s. c. 19 Alh. 152. 528 INSOLVENT DEBTORS. [CH. XIV Effect of the discharge as evidence.] By the statute, tlie original discharge, the record thereof, and a transcript of such record duly authenticated, shall be conclusive evidence of the proceedings and facts therein contained. 2 Hev. Stat. 38, sec. 19. Notwithstanding the strong language of the above section, the courts have determined that, the facts upon which the juris- tion of the officer depends, may be inquired into ; . and, therefore, that the discharge is not conclusive evidence of those facts, although they are stated therein to have been proved before him. 2 Kern. 575 ; 12 Wend. 102 ; and see 1 Denio, 331. The recitals ill the discharge are rather held to \)Qfrima facie evidence only of jurisdictional facts, 2 Kern. 5Y8 ; though conclusive evidence as to all facts and proceedings not jurisdictional. Thus, after the discharge is granted, if the officer has acquired jurisdiction, it is conclusive in all other proceedings in which it comes in question. And no objections to it, not relating to the jurisdic- tion of the officer can be raised in a collateral proceeding ; but if such objections are well taken, the remedy is by a direct review of the proceedings upon certiorari. 28 BaTb. 416 ; 24 Id. 650 ; and see 12 Wend. 102. " The creditors had the notice required by the statute, to show cause why an assignment of the insolvent's estate should not be made, and he be discharged from his debts. If they neglected to appear and raise objections, they should be concluded, if the officer had the requisite jurisdiction ; except as to matters which the statute declares shall avoid the discharge." P&r Strong, P. J., 24 Barb. 655. What are jurisdictional facts are those facts necessary to be stated in the original papers upon which the order to show cause is founded. And all irregularities in the proceedings subsequent to that order — e. g., a defect in the proof of the service of notice upon creditors, or even on omission to serve the creditors, or to publish the notice required by the statute — are cured by the dis- charge, except upon a direct proceeding by certiorari or appeal to review the proceedings. 2 Kernan 575, per Denio, J. ; 28 Barb. 416 ; New York Superior Court, Bosworth, J., Nov., 1862. {O'Connell v. Sutherland). But see 16 Barb. 319 ; 3 Cowen, 59. But the recitals in a discharge are not the only evidence of the regularity of the proceedings ; and defects and omissions in it, may be remedied by the introduction of other proof. 3 Paige, 338, 346 ; 28 Barb. 416. Nor will the omission to state in the CH. XIV.J TWO-THIRD ACT. 529 discharge an act required by the statute to be done, raise a presumption that sucli act was not done. 3 Paige, 338 ; 20 Johns. 211. Pleading the discharge^ "We have seen, supra^ the cases in which the discharge may be pleaded as a defense to an action against the insolvent. 2 Rev. Stat. 22, sec. 32, ante p. b'2i1. But the insolvent cannot avail himself of his discharge as a bar to an action against him, without setting it up by way of answer to the complaint therein, 17 Wend. 557 ; and the rules prescribed by the Code of Procedure in respect to pleadings will govern in such eases. Code, §§ 149, 471. And where the insol- vent set up the discharge as a defense to the action, and the dis- charge had been granted without jurisdiction ; it was held not necessary for the plaintiff to reply to the answer by stating the facts showing such want of jurisdiction, as, under the Code, the answer was to be deemed controverted as upon a direct denial or avoidance. Bank of Commerce v. Majpf., N. Y. Sp. Term, Feb., 1860, j^er W. F. AUen, J. Under the former system of pleading, the defendant was required, in his plea of discharge, to state distinctly every fact which was necessary to give the officer jurisdiction of the proceed- ing. Thus, that the petition was presented by the insolvent, in conjunction with so many of his creditors residing within the United States, whose debts amounted to two-thirds, 3 Paige, 338 ; and that the petition was presented in the proper county, Ih. 343; 6 Wend. 433; and signed by the insolvent and the creditors who united with him in presenting it. 17 Id. 479. And so, in pleading a discharge in bar of an action on a judgment for a tort, the plea must have alleged that the plaintiff was a res- ident within this State at the time of the first publication of the notice of the application for the discharge, or that, being resident abroad, he united in the petition or accepted a dividend. IT). ; and see 5 Mill 327; 6 /^ "W. F. Allen, J., in the case cited : " The act which will vitiate the discharge must be an act of the insol- vent. He TOMsX jyrocure the creditor to become a petitioner for a larger amount than is in good faith due him. And this must be done in order to procure a discharge, that is, the insolvent must design to perpetrate a fraud upon the act, and to this, knowledge of the amount paid for the debt, by the creditor, is essential." Again, where the insolvent had stated in his schedule that he was indebted to the plaintiff on three notes in a certain sum ; the fact being that he was indebted to him on four notes, and for a larger amount. This was held not suflficient per se, to avoid the proceedings, but the facts were submitted to the jury to determine whether the misrepresentation was willful. 17 Wend. 407. " The question in all cases," says Mr. Justice Emott, " is whether the concealment or misrepresentation is fraudulent, that is willful and designed. All the specific acts enumerated in sec- tion thirty-five, either of which will vitiate the proceedings, abso- lutely, are acts which are necessarily and irresistably proofs of a fraudulent design ; which are, in short, of themselves, and by their necessary consequences, frauds upon the law itself But acts or omissions which may be accidental and innocent, are not to destroy the validity of the proceedings, unless they are deter- mined to have been done with a fraudulent purpose. And although in some cases the misstatements may be so gross, or the omissions so glaring, as to afford conclusive evidence of fraud, yet the question is always one of fraud in fact, and these defects, which under the former statute were legal cause to avoid the 532 INSOLVENT DEBTORS. [CH. XIV disclxarge, now are only, at the most, the evidence of the inten- tion of the insolvent. 24 Barb. 652. And so, a compliance with the provisions of the statute, in conducting the proceedings, is necessary to render the discharge vaHd under the statute. Thus, the insolvent must subscribe and swear to the affidavit annexed to the petition for his discharge, before the officer before whom the proceedings are commenced ; and if this is not done, the discharge will be void. 2 Abh. 175, s. c. 4 E. D. Smith, 306 ; 9 All. 366. And so, a material defect in the debtor's schedule will render his subsequent discharge mvalid ; as, where it states a party to be a creditor, but leaves the amount owing to him in blank. 2 Kern. 575. And so, the omission to publish notice of the contents of the order to show cause, in the manner prescribed by the statute, will render the discharge invalid. 16 Barl. 319 ; 3 Cowen 59 ; 19 Saw. 238, s. c. 10 All. 468. Amending proceedvngs and waiver of defects.'] The omis- sion on the part of the creditors to appear and raise objections on the return day of the order to show cause, will be a waiver of aU irregularities in the proceedings, if the officer has the requisite jurisdiction, except as to matters which the statute declares shall avoid the discharge. Thus, any omission, not jurisdictional, in the affidavit of the creditor, or in the insolvent's schedule, or the want of a certificate that the assignment has been recorded in the office of the county clerk. 24 Barl. 650 ; 28 Id. 416. And per Gridley, J. (16 Barl. 321) : " There is a large class of defects in the proceedings of an insolvent, which are waived by a failure to object to them at the proper time. In truth, the very reason for requiring notice of the day and place of showing cause against the granting of the discharge, is, that olg'ections may made and brought to the notice of the officer before the discharge is granted, that he may pass on them, and deny the prayer of the petitioner, or allow any amendment, if the 'defect is amendable. The court say, in Taylor v. Williams (20 Johns. 21), that there are many exceptions which ought to be allowed, if made at the hearing, and ought not to be listened to, if made after the dis- charge. If the creditors do not attend in due time, to oppose, their assent is presumed, and that they have waived all opposi- tion." CH. XrV.] TWO-THIED ACT. 533 But if the creditors appear on the return of the order to show cause, and object to the regularity of the proceedings, the officer may allow the insolvent to correct his proceedings by amendment. Thus, an amendment was allowed where it was objected that the insolvent's schedule of creditors did not show the consideration of the debts owing by such insolvent. 7 Wend. 239. So, where the defendant had omitted to state certain debts due to him from a conviction that they were worthless, the court permitted him to amend his account by inserting in it the debts thus omitted. 2 Johns. 289. The insolvent, also, in another case, was permitted, on the return day of the order, to show cause, to amend his schedule by adding debts owing by him which had been omitted, and a schedule of property, consisting exclusively of wearing apparel of the insolvent and his family, 2 Seld. 311. But where the affidavit of the insolvent was sworn to before a commissioner of deeds, and not before the officer before whom the proceedings were commenced ; it was held that this was a jurisdictional defect, which rendered the discharge void, and that the same could not be remedied by permitting the insolvent to make an additional affidavit on the hearing before the officer. In this particular the proceedings are not amendable. 2 Abh. 175, s. c. 4 E. D. Smith, 312; and see 2 Hilton, 406 ; s. c. 9 Abb. 366, aff. 28 New York, 365. Certiorari to remove proceedings?^ The statute provides, that whenever any authority shall be exercised by a county court or court of common pleas, or any officer, pursuant to the statute, the proceedings may be removed into the Supreme Court by cer- tiorari, and there examined and corrected. 2 Rev. Stat. 49, sec. 47. But the certiorari cannot issue unless allowed by a justice of the Supreme Court, 11. ; or, it seems, by a judge of the Court of Appeals, county judge, or officer elected to perform the duties of a county judge and surrogate. Laws of 184:7, p. 324, sec. 17; 10 Mow. 181. For form of certiorari, see Appendix, No. 305. In the examination of the proceedings by the Supreme Court, the power of the Court is not limited to the questions of the juris- diction of the officer and the regularity of the proceedings ; but it may examine and correct any erroneous decision of the officer upon a question of law. 2 Seld. 309. 634 INSOLVENT DEBTOES. [CH. XIV. It seems that persons who are not creditors of the insolvent, and have no interest which has been, or can be, affected by his discharge, have no right to sue out a certiorari for the purpose of vacating the discharge. 24 Barb. 650. By the statute, the certiorari is not to operate as a stay of proceedings, unless it shall be so directed in the order of allowance. 2 B&o. Stat. 49, sec. 47. Reviev) in Court of Appeals.] A party aggrieved by the de- cision of the Supreme Court, may have the decision reviewed in the Court of Appeals. This is done by writ of error, and not by appeal, the second part of the Code not applying to this pro- ceeding. Code, § 471 ; and see 19 J^ew Torh, .584 ; 18 Id. 487; 20 Id. 529 ; ante, p. 14 note i. General provisions.] The statute also makes certain parts of article 7th, title 1st, chapter 5th of part 2d of the Eevised Stat- utes, applicable to the proceedings here considered. That article may be foimd in full, post, in section vn. of this chapter. SECTION IV. PROCEEDINGS BY CREDITORS TO COMPEL ASSIGNMENTS BY DEBTORS IMPRISONED ON EXECUTION IN CIVIL CAUSES. The proceeding by creditors, to compel assignments by debt- ors imprisoned on execution in civil causes, is not often resorted to ; and there are no cases reported, giving a construction to the statute. The statute makes up the several sections of article 4th, title 1st, chapter 5th of part 2d of the Eevised Statutes— none of which have been amended or otherwise changed, since the revision of 1830. The article is entitled, " Of proceedings by creditors to compel assignments by debtors imprisoned on execu- tion in civil causes." See 2 Hev. Stat. 5th ed. 99, marginal pag- ing, 24. CH. XrV.] COMPELLIKG DEBTOES TO ASSIGN. 535 In what cases.'] The statute provides that where any person shall have been actually imprisoned for more than sixty days, upon execiition in any civil action, any creditor having a demand against such person to the amount of twenty-five dollars, for which a suit might there be brought, may apply by petition to compel an assignment of the estate of such debtor 2 Bev. Stat. 24, see. 1. The creditor having the body of his debtor in execution, cannot apply under the statute ; but the application should be made by a creditor other than the one who has charged the debtor in execution. 2 Johns. Ch. 430. Petition and affidavit.] The application is founded upon petition, which should state the nature and object of the applica- tion ; and should be accompanied by an affidavit of the creditor, stating that such imprisoned debtor is justly indebted to him in a certain sum, therein to be specified, then due ; that such debtor is imprisoned in a certain county therein to be named, under an execution against him in some civil action ; that he has been so imprisoned for more than sixty days, and that such creditor is apprehensive that the estate of such debtor will be wasted or embezzled. 2 Mev. Stat. 24, sees. 1, 2. Officers to whom application to he made.] The application to compel an assignment of the debtor's estate should be made to one of the justices of the Supreme Court, a county judge, or recorder of the city ; and if made in the city of Schenectady, to the mayor thereof. 2 Bev. Stat. 24, sec. 1 ; IK 34, sec. 1. But no application shall be made to any alderman of the city of New York. n. Order for creditors to appear.] Upon such application being made to such officer, the statute requires him to make an order requiring the creditors of such imprisoned debtor to appear before him at a certain time and place, to be specified in the order, and determine whether they will unite in a petition for an assignment of such debtor's estate 2 Bev. Stat. 24, sec. 3. Notice to lepMished and served.] The creditor making the application, should cause notice of such order to be published 536 INSOLVENT DEBTOES. [CH. XIV. once in each week for eight weeks successively, in the State paper, and in a newspaper printed in the county where such debtor is imprisoned, if there be any, and if there be none, then in a news- paper printed nearest to the place of such imprisonment. 2 Rev. Stat. 24, sec. 4. Such creditor is also required, within ten days after the grant- ing of such order, to serve a copy thereof on the debtor, or on the keeper of the jail where such debtor is imprisoned, who shall deliver the same to such debtor. li. sec. 5. Searing, and p7vceedings thereon.] On the day appointed for showing cause, or on such subsequent days and times as the officer making the order shall direct, upon proof being made to him of the due publication of such notice, and of the service of such order, such officer shall proceed to hear the proofs and alle- gations of the parties. 2 Hev. Stat. 25, sec. 6. If at the time of such hearing any of the creditors of such imprisoned debtor shall unite in a petition for the assignment of such debtor's estate, and shall accompany such petition with the affidavit of each creditor, that the sum specified therein and annexed to the name of the petitioner subscribed to such peti- tion, was justly due from such debtor at the time of granting the order for publication of notice to creditors, as hereinbefore required ; and shaU state the nature of the demand, and whether arising on any written security or otherwise, with the general ground and consideration of such indebtedness ; and that neither he nor any person to his use hath received from such debtor, oi; any other person, payment of any demand or any part thereof, in money or in any other way whatever, or any gift or reward whatsoever, upon any express or implied trust or confidence that he should become a petitioner for the assignment of said estate, the officer to whom the same may be presented, may order such imprisoned debtor to be brought before him, to be examined touching his debts. lb. sec. Y («), and lb. 16, sec. 4. (o) This section, and the three sections following it, were enacted in the samu form aa reported by the Eevisers. And the Eeviser3 in their original note to those sections, say : " The last four sections are new, and are intended to give effect to the act It is made an indispensable requisite, that two-thirds of the creditors should unite in a petition ; and yet there are no means pomted out, by which the fact of CH. XIV.] COMPELLING DEBTORS TO ASSIG]?. 537 Upon the debtor being brongbt before tbe officer, he sliall be examined on oath concerning his creditors, the sums of money due them respectively, and the places of their residence. lb. 25, sec. 8. If the debtor refuse to be so examined, or shall not give full information concerning the matters bo inquired of him, the officer shall, by order in writing, commit him to close confinement in the jail of the county in which he shall be imprisoned, in which order the cause of such commitment shall be particularly specified; and such debtor shaJl thereupon be closely confined, without being entitled to the liberties of the jail, until he shall consent to such examination, and give such information. Ih. sec. 9. Upon any debtor being so committed, the said officer shall proceed to take other proof of the debts owing by such debtor, and the names and residence of his creditors, and of the sums due to them respectively. Ih. sec. 10. If it shall appear by the examination of the debtor, or by other proof, satisfactorily to the said officer, that creditors residing within the United States, having debts due them, amounting to two-thirds of all the debts owing by such imprisoned debtor, to creditors within the United States, have petitioned in the man- ner hereinbefore directed, for an assignment of such debtor's estate, and no good cause to the contrary appear, the officer shall make an order requiring such debtor, by a certain day to be thereia specified, to deliver an account of his creditors and an inventory of his estate to such officer, upon oath, and to execute an assignment of his estate ; or that he show cause why such an assignment should not be made by such officer. li. sec. 11. But if it shall not appear that two-thirds of the creditors of such imprisoned debtor, as aforesaid, have united in the said peti- tion, all farther proceedings thereon shall cease, and such petition shall be dismissed. Ih. sec. 12. Debtor to make an account, imuentory, and assignment^ Within ten days after service of the order requiring the assign- ment, such imprisoned debtor is required to deliver to the their being two-thirds, may be ascertained. The whole proceeding may be rendered futile, by the debtor's refusal to disclose his creditors ; for no one else can, in ordinary cases, tell who they are. Some means of coercing him, seem therefore indispensable to render the act of anv avaiL Beii. Kotes, 3 Bev. Slat. 2d ed. 620. Vol. I.— 38 538 INSOLVENT DEBTORS. [CH, XIV. officer making such order an account of all Ms creditors, and an inventory of his estate, with the hooks, vouchers, and securities relating to the same, in all respects conformahle to the accoimt and inventory required of an insolvent dehtor in pro- ceedings by him to obtain a discharge from his debts, by making a voluntary assignment of his property, as prescribed in the third section of this chapter {ante, p. 506); and also to take and subscribe the oath, in that section required, of a debtor petition- ing for his discharge {ante, p. 505) ; and to execute an assignment of his estate, and produce the evidence thereof, in the same manner and with the like effect as prescribed in that section ante, p. 618). 2 Rev. Stat. 26, sec. 13, Proceedings upon rendering the account^ cBc] Any creditor of the imprisoned debtor may, at the time of such debtor's rendering his account, and inventory, demand that the case of such debtor be submitted to a jury ; and shall be entitled thereto on filing \yith the officer before whom the proceedings shall be had, a specification of the grounds of his objections to such debtor's discharge ; and the same proceedings are required to be had in all respects for the summoning of such jury, and for their determination of the matter, and with the like effect, as prescribed {ante, p. 513) in proceedings by an insolvent debtor to obtain a discharge from his debts. 2 Rev. Stat. 26, sec. 14. And such ' debtor may also be examined in the same manner, and with the like effect, as prescribed in those proceedings {ante, p. 515) ; and may in like manner be required to pay, or secure the payment, of any debts collected by him, or the value of any property assigned by him, after the first publication of the notice to his creditors to appear, with the same exceptions as are specified in those proceedings {ante, p. 516) ; and if it shall appear that he has preferred any creditor, as in said proceedings specified, {ante, p 517,) he shall in like manner be precluded from obtain- ing a discharge under the statute. lb. sec. 15. Discharge, when granted; and its effect.] If the imprisoned debtor shall in all respects comply with the order of the officer, and with the provisions of the preceding sections of the statute, and if the jury shall determine in favor of such debtor ; or in case no jury shall be demanded, or they disagree, if the officer CH. XIV.J COMPELLING DEBTOES TO ASSIGK. 539 before wliom the proceedings shall be bad, shall be satisfied of the fairness of the proceedings of such debtor, and that he has made a full disclosure of his property, of the securities relating thereto, and of his creditors, the officer shall grant to the debtor a discharge from his debts and from imprisonment. 2 Rev. Stat. 26, sec. 16. And erery such discharge shall have the like efiect in all re- spects, both in regard to the debts of such debtor, and the exoner- ating of his person from arrest or imprisonment, as if the same had been granted upon the application of such debtor and two- thirds of his creditors, under the proceedings treated in the third section of this chapter {ante, p. 522) ; and the same in like manner may be impeached, and shall become void in the same cases, so far as they are applicable, in which a discharge granted in those proceedings would be void {ante, p. 530) ; Ih. sec. 17. When officer to make assignment of debtor's property.'] If the imprisoned debtor does not comply with the order of the officer requiring an account, inventory, and assignment, as aforesaid,, and with the provisions of the statute, and if no sufficient cause be shown by him to the contrary, the said officer, upon proof being made of the service of the said order, and of the neglect of the debtor to comply therewith, is required to execute an as- signment of all the estate of such debtor to the assignees nomi- nated by the petitioning creditors, for the benefit of all the cred- itors of the debtor. 2 Rev. Stat. 27, see. 18. Effect of such assignment^ The assignment so executed by such officer shall be equally valid, and have the iike effect up- on all the real and personal property which the debtor had on the first day of the publication of the notice to his creditors, herer inbefore required, as if such assignment had been executed by the debtor voluntarily on that day. 2 Rev. Stat. 27, sec. 19. When d^tor precluded from obtaining discharge.] The stat- ute further directs that every such imprisoned debtor who shall refuse or neglect to render such account and inventory, and to execute such assignment, pursuant to any order made as herein directed, shall thereafter be precluded from obtaining any dis- charge from his imprisonment in any other manner than upon a 640 INSOLVENT DEBTOES. [CH. XIY. petition by himself, and by so many of his creditors, who were puch at the date of the order for publication of notice to the cred- itors, as are required by the preceding provisions of this section, to unite in a petition to compel an assignment. 2 Sev. Stat. 27, sec. 20. Proceedings, if the debtor and his creditors petition.] Upon any such imprisoned debtor making an application for his dis- eharge, in conjunction with his creditors, as in the last section specified, the same proceedings in all respects shall be had there- on, as, are prescribed {ante) in proceedings by insolvent debtors to obtain a discharge from debts; except that any assignment which shall be executed by the debtor pursuant to such applica- tion, shall be made to the same assignees to whom any assign- ment of such debtor's estate shall have been made by any officer under the provisions of the statute ; or to such of them as shall be alive and competent to act; and if there be none, to such assignees as the officer entertaining the proceeding shall appoint. 2 Bev. Stat. 27, sec. 21. Property assigned ly officer to vest in assignees.] Whenever any assignment shall be executed by any officer as herein pro- vided, iu consequence of the refusal or neglect of an imprisoned debtor to execute the same, all property, except such as shall be by law, exempt from execution, which such debtor shall acquire during his imprisonment, and after the first publication of the notice to creditors, shall be deemed to vest in the assignees appointed by such officer, by virtue of the assignment so by him executed. 2 Rev. Stat. 28, sec. 22. General provisions.] The statute also makes certain parts of article 7th, title 1st, chapter 6th, of part 2d of the Kevised Stat- utes, applicable to the proceedings here considered. That article may be found in full {post), in section vn. of this chapter. CH. 2IV.] RELIEr FBOM LIABILTTT TO IMPEISONMENT. 541 SECTION T. PROCEEDINGS BY DBBTOE TO BE EBLIBTBD FROM IMPRISONMENT, . AND LIABILITT TO IMPRISONMENT BY MAKING A VOLUNTARY ASSIGNMENT. The proceeding considered in tiis section relates to applica- tions to relieve a debtor from liability to imprisonment by reason of any debt arising upon contract, and if in prison by reason of any such debt, that he may be discharged from his imprisonment. Tt is entitled, " Of voluntaiy assignments by an insolvent for the purpose of exonerating his person from imprisonment." See article 5, title 1, chap. 5, part 2, of Eevised Statutes. 2 Rev Stat. 28. Petition of debtor.'] The statute provides that every insolvent debtor may present a petition to any justice of the Supreme Court, county judge, recorder of a city, or in the city of Schenec- tady to the mayor thereof, praying that his estate maybe assigned for the benefit of all his creditors, and that his person may there- after be exempted from arrest or imprisonment, by reason of any debts arising upon contracts previously made, and if in prison that he may be discharged from his imprisonment. 2 Hev. Stat. 28, sec. 1. Schedule and affidavit^ On presenting such petition, the insolvent is required to deliver therewith a schedule containing an account of his creditors and an inventory of his estate, similar in all respects to the account and inventory required {ante p. 506] in proceedings by an insolvent to obtain a discharge from his debts ; and to annex to his petition and schedule the following affidavit, which must be taken and subscribed by him before the officer to whom the petition is presented, and must be certified by such officer : " I, , do swear, (or affirm, as the case may be,) that the account of my creditors, with the places of their residence, and 542 INSOLTENT DEBTOES. [CH. XTV. the inventory af my estate, witli the evidences of my title thereto, •which are herewith delivered, are in aU respects just and true ; and that I have not at any time, or in any manner whatsoever, disposed of or made over any part of my estate, for the future benefit of myself or my family, or in order to defraud any of my creditors ; and that I have not paid, secured to be paid to, or in any way compounded with, any of my creditors, with a view that they, or any of them, should abstain or desist from opposing my discharge." 2 Bev. Stat. 28, sec. 2. Order to show cause.] Upon receiving the petition, schedule, and affidavit, the officer is required to make an order requiring the creditors of such insolvent to show cause before the said officer, at a time and place to be specified in the order, why the prayer of the petitioner should not be granted. 2 Hev. Stat. 29, sec. 3. JV^otice to he pvhlished^ Notice of the contents of the order is required to be published for the like time, and in the like manner, as directed {ante p. 510), in proceedings by an insolvent to obtain a discharge from his debts, respecting notices upon the application of an insolvent in conjunction with two-thirds of his creditors. 2 R&o. Stat. 29. sec. i. Demand of Jury, and proceedings thereupon.] Every creditor opposing the discharge of an insolvent under the statute, may demand a jury to determine upon the matter; and shall be entitled thereto, on filing with the officer to whom the petition was presented, at or before the first hearing on such petition, a specification in writing of the grounds of his objections. 2 Rev. Stat. 29, sec. \ The same proceedings shall be had for the summoning and empanneling a jury, who shall hear the proofs and allegations of the parties, and render their verdict in the same manner, and with the like effect, as prescribed in the third section of this chaptei {ante, p. 514:) ; and the jury may be discharged in the same case therein specified, and in such case, the officer before whom the proceedings shall be had shall in like manner decide upon the application. Ih. sec. 6. The petitioner may be examined before the jury or officer in CH. XrV.J RELIEF FROM LIABILITY TO IMPRISONMENT. 543 the same manner as prescribed in the said third section {ante, p. 515) ; and may in like manner be required to pay or secure the payment of any debt collected by him, or the Talue of any prop- erty assigned by him, after the presentation of his petition, except- ing such as shall appear to have been necessarily expended in the support of himself and his family ; and if it shall appear that he has preferred any creditors, as in the said section specified, he shall in like manner be precluded from obtaining any discharge under the statute. Ji. sec. 1. Assigninent, when and how executed.'] If the jury shall find in favor of the petitioner ; or in case of their disagreement, or of no jury being required, if the officer before whom the hearing is had, shall be satisfied that such petitioner is unable to pay his debts, that his account and inventory presented with his petition are true, that he has not been guilty of any fraud or conceal- ment, in violation of the provisions of the statute, but has in all things conformed thereto ; in either case, such officer shall direct an assignment to be made to such assignee, or assignees, as such officer shall appoint, of all the estate of such debtor, excepting such articles as are by law exempt from execution. 2 Hev. Stat. 29, sec. 8. The insolvent is required to execute an assignment with the like efiect, as declared in the third section of this chapter, re- specting the assignment of a debtor petitioning in conjunction with two-thirds of his creditors {ante p. 518), and shall cause the same to be recorded in the same manner. 75. sec. 9. When discharge granted; its terms and effect-l The stat- ute provides, that upon producing and proving a certificate of the assignees and of the county clerk, as prescribed in the third section of this chapter {ante, p. 521) of the execution, and record- ing of such assignment, and of the delivery of the property assigned, or so much as shall be capable of delivery, with the books and papers relating to the same, the officer before whom the proceedings were had, shall grant a discharge under his hand and seal ; declaring (and such shall be its efiect) that the person of such insolvent shall forever thereafter be exempted from im- prisonment by reason of any debt due at the time of his making such assignment, or contracted for before that time, though pay- 544 INSOLVENT DEBTOES, [OH. XIV. able afterwards ; and by reason of any liabilities incurred by him by making or indorsing any promissory note or bill of exchange ; or incurred by him in consequence of the payment by any party to such note or bill of the whole or any part of the money secured thereby, whether such payment be made prior or subsequent to the execution of his assignment. 2 Rev. Stat. 30, sec. 10. And if such insolvent be in prison, in any suit or proceeding, founded upon any contract or liability, as to which he is exempted from imprisonment, according to the last section, he shall be dis- charged therefrom on producing his discharge, granted pursuant to the provisions of the statute, and upon indorsing his appear- ance on any mesne process upon which he may be imprisoned. n. sec. 11 ; 24 Wend. 366. The discharge under the statute extends to debts in judgment, though rendered ia actions for torts. So held, where the defend- ant was arrested on a ca. sa. , issued on a judgment obtained in an action of trover, — the defendant moving for his release from cus- tody, upon producing his discharge under the statute. 19 Werid. 629, 630, and note ; and see, also, 24 Id. 364. But no debt, demand, judgment, or decree, against any insol- vent discharged under the statute, shall be affected or impaired bj the discharge, but shall remain valid and effectual against all the property of such insolvent acquired after the execution of his assignment, and the lien acquired by any judgment or decree upon any property of such insolvent, shall not be in any manner affected by such discharge. 2 Bev. Stat. 30, sec. 12. DiscJiarge, when void.'] Every discharge granted to an insol- vent under the statute shall be void in the same cases, so far as they are applicable, in which a discharge granted under the third section of this chapter {ante), is therein declared to be void. lb. sgc. 13. General provisions.] By the statute, also, certain parts of article 7th, title Ist, chapter 5th, of part 2d of the Revised Stat utes, are applicable to the proceedings here considered. That article may be found in full {post), in section vn. of this chapter. CH. XrV.] DISCHARGE FROM IMPRISONMENT. 545 SECTION VI. PROCEEDINGS BY DEBTOR IMPRISONED IN EXECUTION IN CIVIL CAUSES TO BE DISCHARGED FROM SUCH IMPRISONMENT UPON MAKING AN ASSIGNMENT OF HIS PROPERTY. The object of the statutory proceeding treated under tMs sec- tion, is, to enable a creditor imprisoned under execution in any civil action, to obtain his discharge from such imprisonment upon assigning his property for the benefit of the parties at whose instance he is imprisoned. The statute is entitled, " Of voluntary assignments by a debtor imprisoned in execution in civil causes." See Article 6th, title Ist, chapter 5th of part 2d of the Kevised Statutes. 2 R&o. Stat, ^th ed. 103, in marginal paging, 31. In what cases debtor may apply for discharge.] The statute provides that every person who shall be imprisoned by virtue of one or more executions in civil causes, upon which there shall be due a sum not exceeding five hundred dollars, may at any time petition the court from which such process issued, or the county court of the county in which he is imprisoned, for his discharge from such imprisonment on his compliance with the provisions of the statute. 2 Hev. Stat. 31, sec. 1, as amended Laws of 1847, ch. 390, sec. 1. And every person so imprisoned for a sum exceeding five hundred dollars, may in like manner petition for his discharge after he shall have been imprisoned for three months. 2 Rev. Stat. 31, sec. 2. But the statute does not authorize the discharge of a party in execution for a fine imposed for a contempt of court, or where he is committed for the non-performance of some act or duty which it is in his power to perform. 3 Pai-ge, 38 ; 4 Id. 398. If the judgment upon which the debtor is imprisoned exceeds five hundred dollars, and the defendant has been imprisoned less than three months, a discharge will not be allowed, but would be void if granted. 5 Abb. 141. And so a discharge would not 546 INSOLVENT DEBTORS. [CH. XIV. be allowed where the affidavit or petition is in any respect untrue; as, if the account of his property is in any essential respect incorrect, in a matter or manner implying that he purposely concealed any portion of his property, and did not intend to make a full and complete disclosure in respect to it, but designedly kept back something for the future benefit of himself or family, or intentionally withheld any important or proper information in respect to its condition, or in respect to charges or liens upon it. 14 How. 498. In like manner, a discharge will be refused where the debtor lias fraudulently disposed of his property, or where his proceed- ings have not been just and fair ; and it is immaterial, in such case, whether the fraud upon his creditors is perpetrated before his imprisonment in execution, or intermediate the arrest and examination. 2. E. D. Smith, 429. Accordingly, where, on the application of two joint debtors, imprisoned in execution, for a discharge, under the statute,, it appeared from the examin- ation of the petitioners that, being copartners together in !tfew York, and hopelessly insolvent, they purchased, in November, 1851, a passage to California, and for the purpose, as declared in their testimony, of avoiding arrest or interruption, published in the newspapers, on the same day, a notice of their dissolution, with a statement that one partner would carry on the business, and close up the affairs of their firm ; that four days afterwards, having destroyed their letter-book, they sailed for California, taking with them $8,500, for which no satisfactory account was given; that being immediately brought back on an executive warrant, judgment in a civil action was obtained against them, whereon, in December, 1852, a ca. sa. was issued ; it was held that the facts established a fraudulent disposition of the debtors property, and that the proceedings were not just and fair within the meaning of the statute, and that a discharge would not be granted. Ih. And, it seems, an insolvent will be held to have disposed of his property, within the meaning of the statute, where, with a fraudulent design, he has effectually placed it beyond the reach of creditors, by conveying it to a remote part of the country, and in doing so has, by imprudence or misfortune, lost it himself, although he may not have willfully destroyed it, or given it away. Ih. The statute, as we have seen, authorizes every person im CH. XIV.] DISCHARGE FROM IMPRISONMENT. 54.7 prisoned on execution in a civil action, to petition for his dis- charge from imprisonment, (2 Re'o. Stat. 31, sec. 1, supra) ; and therefore an infant is entitled to a discharge from imprisonment on complying with the provisions of the statute. The prisoner's act in making an assignment will be regarded as valid, notwith- standing his infancy. 26 Wend. 698. It seems a party imprisoned on execution is not entitled to be discharged imder the statute, where he has given bail for the jail limits ; so held in Bylandt vs. Comstock, New York Superior Court, special term, September, 1863, per Eobertson, J. ; 25 How. 429. But see Holmes vs. Lansing (3 Johns. Cos. 75) ; and Peters vs. Henry, (6 Johns. 121), where it is said, that in such cases the jail is to be considered as enlarged from the four walls of the prison to the assigned limits; and that so long as the prisoner is within those limits, so long is he to be considered, in judgment of law, as in prison. See, also, 4 Johns. 45 ; 5 Id. 89 ; 7 Id. 165 ; Id. 168 ; Id. 175. Where applications to ie made.] The statute, as we have seen, requires the application to be made to the court from which the execution issued, or to the county court of the county in which the debtor is imprisoned. 2 Hev. Stat. 31, sec. 1, supra. The application must be made to the court, and cannot be made to a judge out of court, or at chambers. 14 Ahh. 45 ; 2 Duer, 655. And it should be made at the special term of the court, and not at a general term ; so held by the New York Superior Court, in 2 Duer, supra. Petition and inventory ; what to contain.'] The statute requires the application to be founded upon petition ; and that the petition should set forth the cause of the imprisonment of the applicant, and should have annexed to it a just and true account of all his estate, real and personal, in law and equity, and of all charges affecting the same, both as such estate and charges existed at the time of his imprisonment, and as they exist at the time of preparing the petition, together with a true and just account of all deeds, securities, books, and writings whatsoever relating to the estate, and the charges thereon, with the names and places of abode of the witnesses to such deeds, securities, and writings. 2 Bev. Stat. 31, sees. 1, 2, 3, 4. 548 INSOLVENT DEBT0B3. [CH. XIV. The form of the petition is not prescribed by the statute other than is above stated ; but suflBcient should appear upon the face of it, to give the officer jurisdiction. 5 All. 141. The case cited shows, that all the facts to entitle the applicant to a discharge must appear in the petition, and that the specification in the statute of certain facts which must appear, it being apparent that the statute does not attempt to prescribe the full conte^jts of the petition, does not obviate the necessity of averring the existence of other facts, if such facts must exist to give the court jurisdiction. 11, 143, jper Bacon, J. And, therefore, where the petition showed that the judgment upon which the debtor was taken in execution exceeded $500, but did not also show that he had been imprisoned for three months ; it was held upon a motion by the plaintiff for leave to issue a new execution against the body of the debtor, that the petition was defective, and the discharge granted upon it, void for want of jurisdiction. Ih. / and see 1 Selden, 106. The statute, as we have seen, requires that there shall be annexed to the petition, a just and true account of all the debt- or's estate, real and personal, in law and equity, and of all charges affecting the same, both as such estate and charges existed at the time of his imprisonment, and as they exist at the time of pre- paring the petition. 2 Rev. Stat. 31, sec. 4, supra. And Mr. Justice Mullet, commenting upon this statutory provision, and giving the reasons why this double inventory is required, says : " It must be borne in mind, that the sixth article of chapter fifth of the Revised Statutes, relates only to cases where persons im- prisoned in execution in civil causes, propose to assign their prop- erty for the benefit of those creditors by whom they are impris- oned, and thereupon to be discharged from sxich imprisonment. As the imprisonment did not deprive the debtor of the power to dispose of his property in the payment of his debts, nor impair his obligations to those creditors who had not imprisoned him, nor probably increase his kindness or gratitude towards those who had ; and as the discharge to be obtained under the appli- cation which he was about to make, only protected him from being again imprisoned, by the same creditors, for the same debts; his feelings and the policy suggested by his situation, certainly had a tendency to induce him, while imprisoned, to make his terms with his more lenient creditors, and then to CH. XIV.] DISCHARGE FROM IMPRISONMENT. 54S demand his liberty from tlie others, on tendering the remaining fragments of his property. In such a case, and when imprison- ment was acknowledged as a legal means of obtaining satisfac- tion of a debt, it was but justice to the party from whom the surrender of such means was demanded, that the demandant should be required to show the changes, if any, which he had made in his property during his imprisonment, to real or pre- tended creditors ; and the accounts of the property required by tlie sixth article were adapted to that purpose." 1 Selden 121 ; Ih. 123, and note. For form of petition and account, see Ajpj^en- dix, ISTo. 306. Notice^ <&c., to he served.] Fourteen days' previous notice of the time and place at which the petition will be presented, together with a copy of such petition and the account of his estate directed by the statute is required to be personally served by such debtor on the creditors at whose suit he shall be impris- oned, their personal representatives or their attorney. 2 Hev. Stat. 31, sec. 3. For form of notice, see Appendix, No. 307. Affidavit to ie made.] The statute directs, that at the time of presenting the petition, the following affidavit shall be indorsed upon it, and shall be sworn to by the applicant : " I, the within named petitioner, do swear (or affirm, as the case may be,) that the within petition and account of my estate, and of the charges thereon, are, in all respects, just and true ; and that I have not at any time or in any manner, disposed of or made over, any part of ray property, with a view to the future benefit of myself or my family, or with an intent to injure or defraud any of my creditors." 2 liev. Stat. 32, sec. 5. This affidavit must be sworn to at the time of making the application for the discharge ; and where the same was not sworn to at that time, the proceedings were held illegal and void, for that reason. 5 Ali. 141. Application to the court, and proceedings thereon.] The statute provides, that upon presenting the petition, and due proof being made of the service of a copy thereof, and of the account thereto annexed, with the notice above required, the court shall order the applicant to be brought before it, on a day to be assigned; and on such day, and such other days as the court 550 INSOLVENT DEBTOES. [CH. XTV. shall appoint during the same term, shall proceed in a summary way to hear and determine the proofs and allegatiorns of the parties, and may examine the applicant or his wife, or any other person on oath ; and if satisfied that the petition and account of the appL'cant are correct, and that his proceedings are just and fair, shall order an assignment to be made of all his property (except the articles which are by law exempt from execution), or of so much thereof, as shall be sufficient to discharge the executions on which he shall be imprisoned. 2 Rev. Stat. 32, sec. 6. For forms of orders under this section, see Appendix, Nos. 310. The court, as we have seen, may proceed to the hearing of the application on the day assigned, and such other days as the court shall appoint during the same term. And where the applicant failed to appear on the day to which the hearing had been adjourned, and the proceedings were dismissed, with leave to come in upon terms ; and the applicant, deeming that he had a sufficient excuse for his non-attendance, moved to open the de- fault ; it was held that the court had lost jurisdiction, by the omission to adjourn the proceeding on the day assigned for the hearing, and that the time to which the hearing is adjourned must be fixed by the court. 25 Hoto. 429. Upon sufficient cause shown by any creditor, the court, also, may adjourn the hearing of the petition to the next term thereof; but no adjournment can be made extending beyond the next term. 2 Bev. Stat. 32, sec. 7. At such adjourned hearing no objections to matters of form shall be received ; and unless the opposing creditor shall then be able to satisfy the court that the proceedings on the part of the prisoner are not just and fair, the court shall order an assignment as aforesaid, and grant a dis- charge, as hereinafter directed. Ih. sec. 8. Assignment, and discharge of debtor. 1 The court, if satisfied that the petition and account of the applicant are correct, and that his proceedings are just and fair, will order an assignment to be made of aU his property (except the articles which are by law exempt from execution), or of so much thereof as shall be sufficient to discharge the executions on which he shall be imprisoned. 2 Rev. Stat. 32, sec. 6, supra. For form of order see Appendix, No. 311. The court will appoint one or more assignees, and the assign- CH. XIV.] DISCHARGE FROM IMPRISONMENT. 551 ment must be made to tte persons so appointed by an indorse- ment on the petition ; wLicli assignment vests in the assignees all the estate right and interest of the applicant, in all the prop- erty, real and personal, so directed to be assigned for the benefit of the creditors upon whose executions he is imprisoned. Ih. sec. 9. For form of assignment, see Appendix, No. 312. The applicant is required to furnish satisfactory evidence to the court of the actual delivery to the assignees so appointed, of all the property so directed to be assigned ; or he shall give such security for the future delivery thereof, as the court shall approve. Ih. sec. 10. For form of assignee's certificate, see Appendix, No. 313. Upon such assignment being made, and such evidence or security being furnished, the court is required to order the dis- charge of the applicant from his imprisonment, by virtue of any execution which shall have been specified in his petition ; and the sheriff shall discharge him accordingly, on being served with such order, without any detention on account of any fees. IK sec. 11. For form of order, discharging the debtor from impris- onment, see Appendix, No. 314. Effect of discharge.] Notwithstanding the discharge of the debtor from his imprisonment, the statute provides that the party in whose favor any execution shall have been issued, shall be entitled to the same remedies against the debtor, by execution against his property only, or by suit on the judgment upon which such execution was issued, for any balance that may be due thereon, as he might have had, if such execution had not been issued ; but the debtor shall not be held to bail in any such suit, nor shall execution issue against his person, or any jadgment obtained thereon. 2 Rev. Stat. 33, sec. 12. But if the applicant shall be convicted of perjury in any of the proceedings authorized by the statute, the party at whose suit he was imprisoned may issue execution againt the body of such applicant. Ih. sec. 13. Rights and duties of assignees.'] The assignees are vested with all the rights in, and powers over, the property so assigned, which are specified in the 8th article of title 1st, chapter 5tli of part 2d of the Revised Statutes, (see post section vnr. of this 552 INSOLVENT DEBTORS. [CH. XIY. cliapter) ; and are subject to the same duties, obligations, and control in all respects, except as herein otherwise provided. 2 Rm. Stat. 33, sec. 14. It is not necessary for the assignees to publish any notice call ing a general meeting of creditors ; but they shall proceed to collect, sell, and distribute the proceeds of the property assigned to them, as follows : 1. They shall pay the jail fees, on the imprisonment and discharge of the applicant. 2. They shall distribute the net produce of the property that shall come to their hands, among the creditors who charged such applicant in execution, previous to the exhibition of his petition, in propor- tion to the amounts due on their respective executions ; and for that purpose shall give personal notice to such creditors or their attorneys, of the time and place of making a dividend, instead of publishing such notice. 3. They shall pay over to such applicant, or his personal representatives, the surplus which may remain, after dischargiag such executions and defraying their expenses. lb. sea. 15. Debtor inay be required to apply for discharge.] When any person shall have remained charged in execution for the space of three months, after being entitled to make an application for his discharge, according to the provisions of the statute, without having made such application, and without having applied for a discharge under the third or fifth article of title 1st, chapter 5th, part 2d, of the Revised Statutes, (ante, sections m. and v. of this chapter), any creditor at whose suit he shall have so remained charged, and his personal representatives, may, by notice in writ- ing, subscribed by him or them, require such prisoner to make application for his discharge, according to the provisions of the statute. 2 Rev. Stat. 33, sec. 16. Consequences of his neglect or omission to do so.] If within thirty days after personal service of such notice, the prisoner shall not present a petition to a proper officer, either under said third or fifth article (see ante, sees, m and v.), or shall not serve upon the creditor giving such notice, or his attorney, a copy of a peti- tion and of an account of his estate, with notice of his intention to apply for his discharge, according to the provisions of the stat- ute ; or if, after presenting such petition under the said third and CH. XIV.] DISCHAEGE FROM IMPEISONMENT. 553 fifth articles, or serving a copy of a petition tinder this section, such prisoner shall not diligently proceed thereon to a decision, he shall be forever barred from obtaining his discharge from any execution in which he shall be so imprisoned, nnder the pro- visions of the statute, or of the said third and fifth articles. 2 Re's. Stat. 34, sec. 11. When creditor may discharge his debtor, without discha/rgi/ng the judgment^ It was formerly the law that the voluntary dis- charge of the debtor from arrest on execution, extinguished the judgment, 7 Cowen 274 ; 8 Id. 171 ; 9 /d 128 ; 5 Johns. 364; even though it was not the intention of the creditor to discharge the debt. 3 Weiid. 184. And such is no doubt the law at the present time, except that where the defendant has remained charged in execution for the space of thirty days from the date of his imprisonment, any creditor at whose suit he shall have remained charged, may, by a written notice, require the sheriff of the county in which the debtor is imprisoned to discharge him from imprisonment; and thereupon the prisoner shall be dis- charged from imprisonment, so far as he is held under such exe- cution. And thereafter the creditor is entitled to the same civil remedies to enforce payment of the judgment upon which the execution issued, as if such execution had not been issued, and the debtor had not been charged in execution by the creditor. But no further execution against the person of the debtor can be issued on the judgment. See Laws of 1S57, vol. l,p. 850. General provisions.] By the statute, also, certain sections of article 7th, title 1st, chapter 5th, of part 2d of the Revised Statutes, are made applicable to the proceedings considered in this section. That article may be found in fall (post) in section vn. of this chapter. Vol. I.— 39 654 INSOLVENT DEBTORS. [CH. IIV. SECTipiT yn. GENERAL PROVISIONS APPLICABLE TO THE PRECEDING SECTIONS OF THIS CHAPTER. Officers to whom application to he made.'] It is provided by the statute, that applications for attachments under the first sec- tion of this chapter ; for the appointment of trustees under the second section ; for the discharge of an insolvent from his debts, under the third section ; to compel an assignment under the fourth section ; and for the exemption of a debtor's person from imprisonment and arrest, under the fifth section, may be made to either of the following officers : Justices of the Supreme Court, county judges, recorders of cities ; and if made in the city of Schenectady, the mayor thereof; and applications under the third and fifth sections, to any county judge. 2 Rev. Stat. 34, sec. 1. But no application under any of said sections, can be made to any alderman of the city of If ew York. li. Applications under the third, fourth, and fifth sections of this chapter must be made to an officer residing in the county in which the insolvent or imprisoned debtor resides, or is impris- oned ; and proof of such residence or imprisonment must be made at the time of presenting the petition, and before any order shall be granted thereon. Ih. sec. 2. But if there be no justice of the Supreme Court, recorder or judge of a county court residing within any county, and disin- terested as creditor or otherwise, to whom application can be made under the third, fourth, and fifth sections of this chapter, then application under the said sections may be made to any such officer residing in any other county. But no place shall be appointed for the hearing on any application out of the county in which the insolvent resides or is imprisoned. 7 i. sec. 4. JProceedings how continued, if officer dies.] In case of the death, sickness, resignation, removal from office, absence from the county of his residence, or other disability of any officer before CH. XrV.] GENERAL PROVISIONS. 655 whom any proceedings may have been commenced nnder the first, second, third, fourth, or fifth sections of this chapter, the said proceedings may be continued by his successor in ofiice, or by any other officer residing in the same county who might have originally instituted such proceedings, in the same manner and with the like effect as if originally commenced before him. 2 Sev. Stat. 35, see. 5. But if there be no officer in the same county competent under the last section to continue such proceedings, then any judge of the county courts may attend at the time and place ap-^ pointed for the hearing of any matter, and may adjourn the same to the next county court to be held in and for the county in which such hearing was appointed ; and the said court shall pro- ceed therein in the same manner and with the like authority as the officer who commenced such proceedings. Ih. sec. 6. Corporations and pa/rtners, as creditors.] A corporation by the statute, is deemed a creditor within the meaning of the pro- visions of this chapter ; and may present or unite in any petition, as other creditors, under either of the preceding sections. And such petition may be signed by a director or other officer of the corporation thereto duly authorized under its common seal ; and any affidavit rejjuired of creditors by the preceding sections may be made and signed by such director or officer. 2 Mev. Stat. 36, sec. 7. And whenever partners or joint companies are creditors of any debtor, any petition and any affidavit required by the preced- ing sections of creditors, may be made and signed by either of the partners, or any one of such company. Ih. sec. 8. Non-resident creditors.'] Creditors residing out of this State, and within the United States, may petition and unite in any peti- tion, in the same manner as resident creditors, under either of the preceding sections. They are required to annex to every such petition, the original accounts or sworn copies, and the original specialties or written securities, if any, on which their demands arise or depend. Affidavits sworn to by them before a judge or clerk of a court of record of the State, district, or territory in which they reside, duly authenticated under the seal of such court, shall be received by every officer or court, in proceedings under this chapter, in the same manner as if such affidavit was 656 INSOLVENT DEBTOES. [CH. XIV. made before a proper officer in this State. 2 Rev. Stat, 36, sec. 9. Discharge void in cases of collusion.'] Where the insolvent shall, by collusion with any prosecuting creditor, procure himself to be imprisoned in a county different from that of his residence for the purpose of obtaining a discharge in such county, under the third or fifth sections of this chapter, a discharge granted in such county where the insolvent is so imprisoned by collusion shall be void ; and if such collusion shaU be proved on the hear ing, it will defeat the application. 2 Sev. Stat. 35, sec. 3. Debts purchased for less than their nominal amount.'] The statute provides that whenever a petitioning creditor under any of the preceding sections, shall have purchased or procured to be assigned to him, any debt or demand against the debtor in respect to whom, or whose estate he is a petitioner, for less than the nominal amount of such debt or demand, and that whenever any executor or administrator shall petition in respect to any such debt or demand, the person petitioning shall be deemed a credit- or to the amount only of the sum or value actually and in good faith paid by him, or by his testator or intestate, for such debt or demand. 2 Hev. Stat. 36, sec. 10. Where the insolvent debtor procured a person to purchase in an outstanding judgment for a nominal consideration only, and the purchaser afterwards became a petitioning creditor, under the third section of this chapter, for the whole amount of the judgment, and that amount was necessary to make up two-thirds of all the money owing by the insolvent, and the debtor obtained a dis- charge ; it was held that the discharge was void. 1 Wend. 166. But the fact that a person becoming a petitioning creditor in such case for the nominal amount of a debt, purchased by him at a dis- count, rather than for the amount paid by him, will not, of itself, vitiate the discharge. To have that effect, the debtor must, with a view of obtaining a discharge, procure the creditor to become a petitioner for a larger amount than is, in good faith, due him. And, therefore, where the petitioning creditor purchased the de- mand three or four years before the debtor, applied for his dis- charge, and there was no evidence that the creditor did not hold it as a, debt against the insolvent, to the full amount, or that the C.H. XIV. J GENERAL PROVISIONS. 557 latter had any knowledge of the circumstances attending such purchase, or of the amount paid for the demand ; it was held that the mere fact of the creditor signing the insolvent's petition as a creditor for the full amount of the demand, when he had pur chased the same for a less amount, would not avoid the discharge 7 Barb. 576. " The act which will vitiate the discharge must be an act of the insolvent. He vauAt procure the creditor to become a petitioner for a larger amount than is in good faith due him. And this must be done in order to procure a discharge, that is, the insolvent must design to perpetrate a fraud upon the act, and to this knowledge of the amount paid for the debt, by the creditor is essential." Ih. 580,per Allen, J. WTien securities must ie relinquished hy creditors.] When- ever a petitioning creditor, under the first, second, third, or fourth sections of this chapter, shall have in his own name, or in trust for him, any mortgage, judgment, or other security, or assignment by way of security, for securing the payment of any sum of money upon any real or personal estate of the debtor in respect to whom, or whose estate he is a petitioner, he shall not become a petitioner in respect to the debt so secured, unless he shall add to his signature to the petition a declaration in writing, that he relin- quishes to the assignees or trustees who shall be appointed pursuant to such petition, every such mortgage, judgment, or other security, for the benefit of all the creditors of such debtor ; which declaration shall operate as an assignment of such mortgage, judgment, or secu- rity, to the assignees or trustees who shall be subsequently appoint- ed under the proceedings upon such petition, and vest ia them all the rights and interest of such petitioning creditor therein. 2 Ben Stat. 36, sec. 11. For form, see Appendix, at the foot of JSTo. 285. And where the creditors have collateral security for any part of the debts due them, and neglect to sign such declaration, they will not be regarded as petitioners in respect to the debts so se- cured ; and when, after rejecting such debts, less than two-thirds in amount of the creditors of the insolvent, as shown by the peti- tion, have joined in signing and presenting it, the officer to whom it is presented obtains no jurisdiction to grant a discharge. 2 Selden 309, per Edmonds, J. , If, however, two-thirds in amount of the creditors after rejecting such debts, have joined in the pro- ceeding, such omission, it seems, would be only an irregularity, 658 INSOLVENT DEBTORS. [CH. XIV. •wMcli -would be waived, unless objection is made on tbe bearing before the officer. 12 Abi. 472; 43 Barh. 108, s. c. 19 AU. 281. Perudty for false swearing.'] Eyery creditor, who shall swear, in any proceedings under this chapter, that any sum of money is due to him from any debtor, which is not really due, or that more is due than the sum really due, knowing the same not to be due, shall forfeit double the sum so falsely sworn to be due, to the assignees or trustees of the estate of such debtor, to be recov- ered by them. 2 S&o. Stat. 37, sec. 12. Proceedings on the hearing of any petition.] On the hearing of any petition under the third, fourth, fifth, or sixth sections of this chapter, the officer, or court before whom the same may be pending, may adjourn the same from time to time, and may issue a subpoena requiring the wife of the debtor, or any other person, whether an opposing creditor or not, to appear and testify con- cerning the subject matter ; and the debtor and any creditor may in all cases be examined at the instance of any creditor in any proceedings under those sections. 2 Rev. Stat. 37, sec. 13. Witnesses, <&c.] The appearance of every person duly sub- poenaed and neglecting or refusing to appear, may be enforced by attachments, to be issued by such officer or court ; and if, after appearance, any such person shall refiise to testify, he shall be committed to prison until he submit. 2 Rev. Stat. 37, sec. 14. Every person disobeying such subpoena willfiilly shall forfeit one hundred and twenty-five dollars, to be recovered by, and in the name of, the party at whose instance he was subpoenaed. Ih. sec. 15. Officers or court to Teeep minutes.] Whenever any hearing shall be had before any officer singly, or before him and a jury, or before a court, under any of the provisions of this chapter, it is made the duty of such officer, or of the presiding judge of the court, to keep minutes of the material parts of the testimony delivered before him, and of the examination of any debtor. 2 Rev. Stat. 87, sec. 16. CH. XIV.] GENERAL PEOVISIONS. 559 Penalty mi ju/rors.] Every person who shall be subpoenaed as a juror under the provisions of this chapter, and shall refuse or neglect to attend without reasonable cause, to be determined by the officer issuing such summons, shall forfeit ten dollars, to be recovered by any creditor at whose instance such summons was issued ; and in case of his neglect to prosecute for the same, then it shall be competentfor the insolvent to sue for and recover the said penalty. Laws of 1830, ch. 258, see. 3 ; 2 Rev. Stat. 5th e4. Ill, sec. 17. J^'ees of sheriff, constahle, and juror.] The sheriiBf or con- stable summoning a jury under the provisions of the statute treated in this chapter, is entitled to receive one dollar and twelve and a half cents, and each juror attending and sworn, twenty- five cents. These fees, together with all other expenses of the bearing of any case by a jury, are required to be paid by the creditors requiring the same. 2 Rev. Stat. 38, sec. 18. Discharge, assignment, and other papers to he filed and re- corded^ The statute requires every discharge granted under the third, fourth, and fifth sections of this chapter, to be recorded by the clerk of the county in which it was granted, (2 Rev. Stat. 38, sec. 19), and that every assignment executed under the third, fourth, fifth, and sixth sections, shall also be recorded by the clerk of the county in which it was executed, upon being acknowledged or proved in the same manner as deeds of real estate. Fb. sec. 20. And so, all petitions, affidavits, schedules, inventories', orders, and other papers upon which any such discharge shall be granted, are required, within three months from the granting thereof, to be filed and recorded by the clerk of the county in which the insolvent resided at the time of the presentation of his petition, or such discharge shall thereafter be inoperative, until such papers shall be duly filed and recorded, as aforesaid. 2 Rev. Stat. 38, sec. 19, as amended, 1866, ch. 116. The clerk is entitled to receive five cents per folio for record- ing the papers, and no other fee for filing the same. lb. Effect of the discharge, assignment, and other papers as evi- dence.'] By the terms of the statute, the original discharge, the record thereof, and a transcript of such record duly authenticated, 660 INSOLVENT DEBTOES. [CH. XIV. shall be conclusive evidence of the proceedings and facts therein contained. 2 Rev. Stat. 38, sec. 19. And by the statute, also, the original assignment, the record thereof, and the transcript of such record, shall be received in evidence, in the same manner and with the like effect, as deeds of real estate duly recorded, Tb. sec. 20. So, the record of the petitions, afBdavits, schedules, invento- ries, orders, and other papers upon which any discharge shall be granted under the third, fourth, and fifth sections of this chap- ter, and a transcript of such record, duly authenticated, shall be presumptive evidence of the facts and proceedings therein con- tained. 2 E&o. Stat. 38, sec. 19 ; as amended by ch. 116, Laws of 1866. In respect to the effect of the discharge as evidence, the courts have determined, notwithstanding the strong language of the statute, that the facts upon which the jurisdiction of the officer depends, may be inquired into ; and, therefore, that the discharge is not conclusive evidence of those facts, although they are stated therein to have been proved before him. 2 Kern. 5Y5 ; 12 Wend. 102; and see 1 Denio, 331. The recitals in the discharge are held rather to be jprima fade evidence only of jurisdictional facts, 2 Kern. 5Y8, supra; though conclusive evidence as to all facts and proceedings not jurisdictional. Thus, after the dis- charge is granted, if the officer has acquired jurisdiction, it is conclusive in all other proceedings in which it comes in question. And no objections to it, not relating to the jurisdiction of the officer can be raised in a collateral proceeding; but if such objections are well taken, the remedy is by a direct review of the proceedings upon certiorari. 28 Barb. 416 ; 24 Id. 650 ; and see 12 Wend. 102 ; 2 Kern. 575 ; 1 Benio 331, ^pra. See, also, under the head of "Effect of the discharge, as evidence," in section m. of this chapter awfe, p. 528, and cases there cited. Proceedings if debtor is arrested after discharge.] If any insolvent, discharged under the third, fourth, fifth, or sixth sec- tions herein, shall be arrested on mesne process, in a suit upon any debt or liability in which he is exempted from iinprisonment, as in those sections declared, and shall apply to any officer to discharge him from such arrest, such officer shall cause reasonable notice to be given to the plaintiff in such suit, to show cause why CH. XrV.] GENERAL PEOVISIONS. 561 such insolvent sliould not be discharged from sncli arrest. 2 Rev. Stat. 38, sec. 21. And the plaintiff in such suit may show as cause against such discharge, any fraud committed by the insolvent in obtaining his discharge, or any cause for avoiding such discharge declared in the said sections ; and the officer may require the insolvent to be held to bail ia such process, as if no such discharge had been granted. Ih. sec. 22, Proceedings if assignees refuse to sign certifcate.] Wherever an assignment shall have been executed to one or more assignees appointed pursuant to the provisions of the third, fourth, fifth, or sixth sections of this chapter, and they, or any of them, shall refuse to sign a certificate of the fact that such assignment has been ex- ecuted upon complaint made to the officer or court who directed the assignment, the assignee so refusing, shall be cited to ap- pear, and the matter shall be investigated. 2 Rev. Stat. 38, sec. 23. And if it shall appear that such assignment has been duly executed, and that such insolvent has dehvered all his estate directed to be assigned, and all the books, vouchers, and securities relating to the same, capable of delivery, such officer or court may grant a discharge of the debtor, notwithstanding the refusal of the assignees to certify the fact of an assignment. Jh. sec. 24. Or, in such case, the officer or court may revoke the appointment of assignees, and grant a certificate of such revocation, which shall be recorded in the office of the clerk of the county ; and thereupon the assignment that may have been previously executed to the assignees so refusing to certify, shall be void. li. sec. 25. And the officer or court is required thereupon to direct a new assignment to be made to such persons as shall be appointed for that purpose ; and in case of such new assignment being executed, the certificate of the assignees to the fact, shall be required ia the same manner as of the first assignees. JTb. sec. 26. What debts are not affected hy discharge.] No debt or duty to the United States shall be in any way affected by a discharge under the provisions of the statute ; nor can any debtor to the United States be discharged or exonerated from imprisonment by any proceedings under this chapter, in any suit or proceeding 562 INSOLVENT DEBTORS. [CH. XIV. founded upon a debt to the United States. 2 Rm. Stat. 39, sec. 29. But all debts and duties to this State, except taxes, shall be affected by proceedings under this chapter, in the same manner as debts to individuals ; and debtors may be discharged and exonerated from imprisonment, in suits brought in the name of the State, in the same manner as in suits by individuals ; and in such case, whenever it shall be necessary to serve any notice upon plaintiffs, according to the provisions of the statute, the same may be served on the attorney-general, who, in all such proceedings, represents the State. li. sec. 30. SECTION VIII. THE POWERS, DUTIES, AND OBLIGATIONS OP TRUSTEES AOT) ASSIGNEES OP INSOLVENT DEBTORS. The statutory provisions relating to the powers, duties, and obligations of trustees and assignees of insolvent debtors, make up in the main the eighth article of title first, chapter fifth, of part second of the Eevised Statutes. (See 2 Bev. Stat. 113, Uh ed., marginal paging, 40.) And those provisions, with the amend- ments and additions since made, constitute the present law of this State on the subject, and may be found substantially in fiiU in this section. Who are trustees / their general powers, ). (a.) " The last two sections are in conformity to § 31 of title 2, of chapter 6, of the 2d part, (2 Rev. Stat 88, sec. 31.) It is believed that the same principle of an equitable distribution among creditors, should prevail in suits against heirs and devisees, as in suits against executors. They are equally trustees of the property of the deceased, and they ought not to be permitted to give a preference to one creditor over another." Rev. Notes, 3 Rev. Stat. 152, 2d ed. (6.) " It seems doubtful whether payment to other creditors, even to the value of the laud descended, would avail an heir. KeSway, 63 ; Gomyns Pleader, 2 B. 1. Con- tra, Strange, 665. The above section is drawn to settle this rule, and to conform to the principles of the preceding sections." Rev. Notes, 3 Rev. Stat. 152, 2d ed. 604 PBOCEEDINGS BY AND AaAINST [CH. XV. SEOTIOE" 11. PROCEEDINGS AGAINST JOINT DEBTORS, PERSONAL REPRESENTA- TIVES, HEIRS, DEVISEES, LEGATEES, AND TENANTS. The remedy considered in this section is authorized by chapter second, of title twelve, of the Code of Procedure, entitled, " Proceedings against joint debtors, heirs, devisees, legatees, and tenants, holding under a judgment debtor." Code, §§ 3Y5 to 381 (a). Formerly, so far as related to the obtaining of execution against personal representatives, when the defendant died after final judgment and before execution, the remedy was had by writ of scire facias, under the Revised Statutes, (2 Hev. Stat. 516) ; but that writ was abolished by the Code, and the proceeding here considered substituted in its place. Code, § 428 ; 11 How. 209. The proceeding is not an action, though it is conducted in (a) An additional remedy is provided, also, for creditors of a deceased judgment debtor, whose judgments are liens upon real estate, hj an act passed April 10, 1850. That act provides that, notwithstanding the death of a party after judgment, execution thereon against any property, lands, tenements, real estate, or chatties real, upon which the judgment shall he a lien, either at law or in equity, may be issued and executed in the same manner and with the same effect as if he were still living, except that such execution cannot be issued within a year after the death of a defendant, nor in any case, unless upon permission granted by the surrogate of the county, who has jurisdiction to grant administration or letters testamentary on the estate of the deceased judgment debtor, which surrogate may, on sufficient cause shown, make an order granting permission to issue such execution as aforesaid. Laws of 1850, p. 639. To entitle the plaintiff to an execution under this statute, he should, after obtaining permission of the surrogate, apply to the court for leave to issue execution upon the judgment. The application should be upon af&davit, setting forth all the facts, together with the surrogate's permission ; and personal notice of the applioatioii should be given to the parties interested. But if the parties are absent or non- resident, or cannot be found to make personal service, then an order to show cause should be obtained, in the usual manner, directing how, and on whom, such order should be served. Code, % 284; 11 ffm. 209, 214. If, upon the hearing of the motion, questions of fact arise, not proper to be determined by affidavit, a reference may be ordered, under § 271, sub. 3, of the Code, to try the matter before a referee. lb. 215, per James, J. CH. XV.] LEGATEES, HEIES, JOINT DEBTORS, ETC. 605 many respects the same as an action ; but is strictly a special proceeding, as defined by the Code of Procedure. Code, §§ 2, 3, 127, 380, 381, 307, mb. 7; avd see 12 How. 387; s. c. 2 Ahi. 432 ; 14 Id. 340, 342. Proceedings agairist joint debtors.} It is provided by the Code (§ 136), that where the action is against two or more defendants, and the summons is served on one or more of them, but not on all of them, the plaintiff, if the action is against defendants jointly indebted upon contract, may proceed against the defendant served, unless the court otherwise direct ; and if he recover judgment, it may be entered against all the defend- ants thus jointly indebted, so far only as that it may be enforced against the joint property of all, and the separate property of the defendant served, and if they are subject to arrest, against the persons of the defendants served. The plaintifi', therefore, can obtain a personal judgment only against joint debtors who are personally served; though, upon the service of one of them, he may enter a judgment in form against all of them. And, to enable him afterwards to obtain a personal judgment against the defendants not served, the Code further provides, that when a judgment shall be recovered against one or more of several persons jointly indebted upon a contract, by proceedings under the above section, those who were not originally summoned to answer the complaint, may be summoned, to show cause why they should not be bound by^ the judgment, in the same manner as if they had been originally summoned. Code, § 375 ; and see 14 Ahb. 421 ; 18 How. 457. It is not necessary that the party served with the summons in the original action should be joined as a party defendant in the proceeding. Id. ibid. By § 136 as recently amended, {Laws of 1866, eh. 824,) it is provided that if the name of one or more parties shall, for any cause, have been omitted in any action in which judgment shall have passed against the defendants named in the summons, and such omission shall not have been pleaded in the action, the plaintiff, in case the judgment therein shall remain unsatisfied, may, by action, recover of such partner separately, upon proving his joint liability, notwithstanding he may not have been named 606 PEOCEEDINGS BY AND AGAINST [CH. XV. in tlie original action ; but the plaintiff shall have satisfaction of only one judgment rendered for the same cause of action. Proceedings against heirs, devisees, legatees, or tenants.] In case of the death of a judgment debtor after judgment, the heirs, devisees, or legatees, of the judgment debtor, or the tenants of real property owned by him and affected by the judgment, may, after the expiration of three years from the time of granting letters testamentary, or of administration, upon the estate of the ' testator or intestate, be summoned to show cause why the judg- ment should not be enforced against the estate of the judgment debtor in their hands respectively ; and the personal representa- tives of a deceased judgment debtor may be so summoned, at any time within one year after their appointment. Code, § 376. The proceeding under the above section is not to be treated as an action ; though it is a proceeding in court, with most of the forms of an action, for only one specific.object, however, viz., to enforce the original judgment against the estate of the deceased judgment debtor, in the hands of the parties sum- moned. 12 Bow. 385, s. c. 2 Abb. 432. Who should be made parties.} If the proceeding is insti- tuted against joint debtors, it is sufficient if only those not served in the original action, are made parties to the proceeding. 14 Abh. 421 ; 18 Sow. 457. But in proceedings against heirs, devisees, legatees, and tenants, all persons having an interest in, or who will be affected by the proceedings, should be made parties thereto. And where a judgment against the testator was, after his death, revived, and premises devised by him sold under the execution, the tenants for life then surviving being the only parties to the proceeding ; it was held that such sale did not affect the title of the devisees in remainder. 18 ]^ew York, 412, 421 ; 19 Bwrb. 498. Proceedings to revive a judgment or recovery against tenants of any real estate, may be brought against the persons by whom the estate shall be actually occupied, claiming any interest therein, whether in fee, for life, or for years. 2 Bev. Stat. 577, sec. 4. And where any judgment or recovery shall be revived as against real estate, the right of any person not made a party to CH. XV.] LEGATEES, HEIRS, JOINT DEBTOES, ETC. 607 the proceeding, will not be impaired or affected by such revival, unless he claim title from the tenant of the real estate, who was duly made a party thereto. li. sec. 5 ; 18 N'ew York, 412, 421 ; 19 Barb. 494, 498. Within what time proceedings may he commenced^ If the proceeding is instituted against the personal representatives of a deceased judgment debtor, it may be commenced at any time within one year after their appointment. K against his heirs, devisees, legatees, or tenants, it cannot be commenced until after the expiration of three years from the time of granting letters testamentary, or of administration upon his estate. Code, § 376. Under the Revised Statutes, writs of scire facias for which the proceeding here considered is substituted, — when brought to revive a judgment against the personal representatives of the deceased judgment debtor, were required to be brought within ten years after the time of the docketing of the judgment. 2 Rev. Stat. 577, sec. 3. In respect to the time within which actions may be com- menced against heirs and devisees to charge them with the debts of their ancestor or testator, see ante, p. 592. . Summons and affidavit.'] The summons is required to be subscribed by the judgment creditor, his representatives, or at- torney ; and must describe the judgment, and require the person summoned, if a personal representative, heir, devisee, legatee, or tenant, to show cause, within twenty days after the service of the summons, why the judgment should not be enforced against the estate of the judgment debtor in his hands, or if a joint debtor, to show cause within twenty days after such service why he should not be bound by the judgment in the same manner as if he had been originally summoned. Code, §§ 377, 376, 375; 14 Abb. 421 ; 18 How. 457. For iorm%^Bee Appendix, Nos. 315, 316. It is not necessary to insert in the summons the time and place for showing cause; though if that is done, the summons is not vitiated for that reason. 14 Abb. 340. If the proceeding is against heirs, devisees, or tenants, the summons should describe the estate of the judgment debtor sought to be charged with the payment of the judgment. 2 Bev. Stat. 578, sec. 11. 608 PEOOEEDINGS BY AND AGAINST [CH. XV. The summons must be served in like manner as in actions. Code, §§ 377, 134. The summons is required to be accompanied by an affidavit of the person subscribing it, that the judgment has not been satisfied, to his knowledge or information and belief, and which must specify the amount due thereon. Ih.% 378. For form, see Appendix, l^o. 317. Answer of defendant.'] The party summoned may answer the summons within the time specified therein, denying the judgment or setting up any defense which may have arisen subsequently, (8 Johns. 78 ; i Cowen 457) ; and in addition thereto, if he is proceeded against as a joint debtor under § 375, swpra, he may make any defense which he might have made to the action if the summons had been served on him at the time when the same was originally commenced, and such defense had been then interposed to the action. Code, § 379, as amended. Lams of 1866, ch. 824. Whenever the proceeding is brought against the tenants of any real estate, other than heirs or devisees, to charge such real estate with any judgment sought to be revived, the tenants, or any of them, may set up in their answer in abatement or defense of the proceeding, 1. That the heirs or devisees of the party against whom the judgment was had, or any of them, have not been summoned ; or, 2. That there are other persons who are joint tenants, or ten- ants in common, with those so pleading, of the same lands, in respect to which they have been summoned ; or, 3. That there are other tenants of other lands in the same county, which, if the lands of the defendants be chargeable with the judgment sought to be revived, are equally chargeable there- with, specifying the names of such parties, and the lands held by them. 2 Eev. Stat. 677, sea. 6. In like manner, in proceedings against heirs or devisees, to en- foi^ce any liability arising from their being tenants of or claiming any real estate, the defendants, or any of them, may set up in their answer in abatement or defense of the proceeding, that there are other heirs or devisees who ought to be charged, who have not been summoned. Ih. sec. 7. CH. XV.] LEGATEES, HEIES, JOINT DEBTORS, ETC. 609 And thereupon, if any such defenses are admitted or estab- lished, the proceedings against those so answering will be sus- ptended until the plaintiff shall have summoned the parties named in the answer ; but no second or further answer of the like nature will be allowed in the proceeding. Ih. sec. 6 and 7. But no person against whom a recovery is had, will, by reason of any omission to plead any of the defenses above mentioned, or of anything contained in the statute, be precluded from his reme- dies for coatribution against other persons bound to contribute to the satisfaction of the judgment or recovery, and not made a party thereto. 75. sec. 8. Any defendant, also, in a proceeding to enforce the judgment against the estate of the judgment debtor ia his hands, may set up in bar of the proceeding, 1. That he is not tenant, and does not hold any of the lands in respect to which he is summoned ; or, 2. That he is not tenant of any particular part or parcel of such lands ; or, 3. That he holds in severalty, any such lands in respect to which he is summoned, as joint tenant or tenant in common. Ih. sec. 9. The answer is required to be verified in the like cases, and manner, and be subject to the same rules as the answer in an action. Code, % 381. Subsequent pleadings, dec, same as in actions.\ The party issuing the summons may demur or reply to the answer, and the party summoned may demur to the reply ; and the issues may be tried, and judgment maybe given in the same manner as in an action, and enforced by execution ; or the application of the property charged to the payment of the judgment may be com- pelled by attachment, if necessary. Code, § 380. If a reply is interposed, it must be verified in like cases and manner, and be subject to the same rules, as the reply in an action. Ih. § 381., " When the Code," says Mitchell, J., " directed the summons to be to show cause why judgment should not be enforced against the estate of the deceased in the defendant's hands, it limited the objects of the proceeding to that purpose ; when it directed judg- ment to be given in the same manner as in an action, it meant in^ the same manner as in an action like this, instituted for a certain specified purpose, and against executors ; and when it gave an alternative, that the application of the property charged to the pay- 610 PROCEEDINGS BT AND AGAINST [CH. XT, ment of the judgment may be compelled by attachment, it shows the same intent, and that the judgment to be entered was one charging certain property (' the property') with the payment." 12 Row. 389, 8. e. 2 Ali. 432. Trial of issue, and Judgment.'] The issues, as we have seen, are to be tried, and judgment given, in the same manner as in an action under the Code. Code, § 380, supra. A judgment, however, against executors, is not authorized as broad as if it had been founded on a summons in an ordinary action, in which the executors could be made personally liable for the amount of the judgment. But the judgment to be entered in such case, is one charging the property of the judgment debtor in the hands of his executors. 12 ITow. 389, supra, per Mitchell, J., 8. c. 2 All. 432. If the proceeding is against tenants, and the defenses interposed by them are admitted or established, the judgment must be as follows : 1. Where the defendant does not hold any part of the lands, in respect to which he is summoned, judgment shall be rendered in favor of the defendant; 2. Where the defendant holds only a part of such lands, the plaintiff shall have judgment only as to the part so held; and if the cause is tried by a jury, they shall specify such part in their verdict, as in an action to recover the possession of real estate ; and 3. If the defense of several tenancy be admitted or estaiblished, the plaintiff shall have judgment according to the title of the defendant ; and if the cause is tried by a jury, they shall in like manner specify the same in their verdict. 2 Rev. Stat. 578, sec. 10. Hjxecution.] The execution, if against personal representar tives, heirs, devisees, legatees, or tenants, should describe the property of the judgment debtor in the hands of the defendant, {see 2 Bev. Stat. 578, sec. 11,) and should require the officer to satisfy the judgment out of such property, real or personal. Code, § 289, ante, p. 686, note a, 12 Sow. 389, s. c. 2 Alb. 432. Costs of the proceeding.] The costs of the proceeding are allowed to the plaintiff or not, the same as in actions ; and when allowed, are to be at the same rate allowed for similar services in civil actions, Code,% 307, st«J. 7; 12 Ifow. 385, s. o. 2 All. 432; Laws of 1854, p. 592, ante, p. 14, note I. CH. XV.] LEGATEES, HEIES, JOINT DEBTOES, ETC. 610-1 SUPPLEMENT TO CHAPTER XY. Conveyance by heir or desisee, to an innocent purchaser ; new statute. By a recent statute, it is provided as follows : No real estate, the title to which shall have passed out of any heir or devisee of the deceased, by conveyance or other- wise, to a purchaser in good faith and for value, shall be sold by virtue of the provisions of this act, or of title four, chapter six, part two, of the Revised Statutes, unless letters testamentary or of administration, upon the estate of said deceased, shall have been applied for vrithin four years after his death, nor unless appUcation for such sale shall be made to the surrogate within three years after the granting of such letters testamentary or of administration, pro- vided the surrogate of any county in this State had jurisdiction to grant such letters of administration. And provided further, that the period during which an action may be pending in favor of any creditor against any executor or ad- ministrator for the recovery of any debt or claim against the testator or intes- tate, shall not be part of the time limited for makjug such application to the surrogate for such sale ; provided the plaintiff in such action shall file in the clerk's office of the county where the real estate is situated, a notice of the pendency of such action, stating the object thereof, and that the said real estate will be held as security for any judgment obtained in such action. But the court in which such action is pending may, on special motion, after eight days' notice to the plaintiff's attorney, on such terms as the court shall see fit, by order discharge the said real estate, or a specific portion thereof, to be described in such order, from any lien or incumbrance by reason of such action, and direct an entry to be made by the clerk on such lis pendens, or on the record thereof, that t-uch lien or incumbrance is " discharged as per order of the court, dated ," specifying the date of such order; and thereupon the said real estate, or the specific portion thereof described in said order, shall be dis- charged from such lien or incumbrance, with the same effect in all respects as if no such action had been commenced. Laws of 1873, p. 340, amending % 73 of ch. 460, of Laws of 1837, as amended by ch. 845, of Laws of 1809. In a case where the mortgagor had died, and it was sought to enforce the payment of the mortgage ; it was held that the mortgagee was not confined to his remedy against the mortgaged premises, but could resort, at once, to his remedy upon the bond, which the statute gives him against the mortgagor's heirs, and the real estate which they take by descent. 28 Barb., 426. Tlie special remedy prescribed by |§ 375 to 381 of the Code is not inconsistent with the remedy by action, and, therefore, where an action is brought against two or more defendants upon a joint contract, and the summons is served only upon one and judgment is perfected as prescribed by § 136 of the Code, a second action may be brought against aJl the defendants. The new remedy given by those sections is cumulative only. 51 N. T., 1, reversing 4 EoVt, 239. If judg- ment is rendered against one not served with process he may be proceeded against under § 375 of the Code. 44 New Toi% 63. Remedy against deceased joint debtor's estate. The executor of a deceased partner cannot be joined with the surviving partner in an action at law to collect a partnership indebtedness. The remedy must be exhausted against the surviv- ing partner, in the first instance, and the creditor may then have an action, in equity, against the representatives of a deceased partner. 43 New York, 373, 8. C, 9 Abb., N. S., 263, affirming 57 Barb., 309, and 39 How., 82. Pr&iwrvption of joint indebtedness. Where the action is upon a judgment against the defendants, entered in form against them jointly, it will be presumed to be an action against joint debtors. 2 Landng, 60. Statute of limitations. Formerly, it was held, in a proceeding for the pur- pose of having a defendant adjudged to be bound by a prior judgment, that the defendant could not set up the Statute of Limitations as a defence, even although the statute had run against the demand prior to the service of process 610-2 XEGATEES, HEIRS, JOINT DEBTORS, ETC. [CH. XV. in the original suit. 48 Barb., 442 ; 35 Bari., 637. But now, by §379 of the Code, as amended in 1866, the defendant may interpose any defence he might have made to the action, if the summons had been served on him at the time ■when the same was originally commenced, and such defence had been then inter- posed to such action. The new Oode of Civil Procedure. The recent alterations in the practice pre- scribed by the Code of Civil Procedure, do not affect the proceedings authorized by sec. II. of this chapter ; the sections of the old Code (§§ 375 to 381) haTibg been retained by the general repealing act. Lcma, 1877, eh. 417. CHAPTER XVI. PEOCEEDINGS TO ACQUIEE LIENS- UPON BTJILD- m"GS, AND SHIPS AND VESSELS, IN FAYOE OP MECHANICS AND OTHERS. Section I. LiEir, law dt fatoe op mechanics and others m the citt and odtjntt OP NEW YORK. n. Lien law, Df payor op mechanics and others in all the counties op THE state, except THE COUNTIES OP NEW YORK, ERIE, KINGS, AND QUEENS. m. Lien law, EELAinfa to ships and vessels SECTION L LIEN LA"W RELATING TO THE CITT AND COUNTY OF NEW YORK. The first act upon the subject of liens in favor of parties per- forming work or famishing materials, in the erection or alter- ation or repairing of buildings, in this State, was passed on the 20th of April, 1830, and applied exclusively to the city and county of New York. Zaws of 1830, p. 412. That act, with the amendments, alterations, and additions subsequently made (Zaws of 1832, f. 181; Laws e created.'] The lien, as we have seen by the statute, may be acquired by any person who, as contractor, laborer, workman, merchant, or trader, in pursuance of, or in conformity with, the terms of any contract with, or employment by, the owner, or by or in accordanceSvith the directions of the owner, or his agent, shall perform the labor, or furnish the materials. Laws of 1863, p. 859, § 1, supra. And the lien may be acquired in favor of every person 'who shall be employed by any owner, contractor, sub-contractor, jobber, or master-workman. Formerly, however, the right to acquire a lien was confined by the statute to the original con- 618 LIEN LAW : NEW TOEK CITY. [cH. XVI. tractor, and his sub-contractor, or employe, or person famishing materials; and, therefore, the employes of the sub-contractor, or persons furnishing materials for him, could not acquire a Hen. Laws of 1851, j). 953 ; and see 1 E. D. &mith 716 ; 4 Id. Y68 ; 17 Wend. 550 ; aff. 22 Id. 395. But this, as we have seen, is now changed by the statute. Laws of 1863, § 1 ; anfe, p. 611. If o transfer or assignment of his interest in the contract, by the contractor, will be valid as against parties entitled to file liens, under the contract, against the contractor. Ih. § 13 ; ante, p. 615, note. The assignee of a claim for work and labor, or materials furnished, cannot acquire a lien under the statute. 4 Ahb. 263, s. c. ; 3 E. D. Smith, 632. The statute confers only a personal right on the contractor, laborer, or other person above mentioned, and not any right upon his assignee. Id. ibid. Against whom, the lien may he created.'] By the statute, the lien must be obtained against the owner of the building or buildings, or the appurtenances thereto, in the city of New York, upon which the work has been performed, or for wHch the materials have been famished. Sec. 1, supra. ■ And for the purposes of the statute, any person or persons, who may have sold or disposed of his or their lands upon an executory contract of purchase, contingent upon the erection of buildings thereon, will be deemed the owner, and his vendee the contractor ; and such owner will, in all respects, be subject to the provisions of the statute {a). Laws of 1863, p. 859, § 14 ; ante, p. 615, note. Though, under former statutes on the subject, the vendee, in such a case, was deemed the owner of the premises ; and no lien could be acquired against the vendor. 6 Seld. 435, aff'ing / 2 E. n. Sjnith, 681; 1 Id. 725; Id. 652, and note; 2 Id. 643, 548, note ; Id. 662 ; 4 Id. 721 ; 1 Buer, 676. It is sufficient if the party proceeded against is the owner of the building; and it is not necessary that he should be the owner of the land also. As, where a sub-tenant erects a building upon the demised premises, which he claims the right to remove (a) By the recent amendment of the statute, a party is entitled to a lien to the extent of the interest which the owner had at the time of filing the notice of lien, and to no greater extent. Laws of 1866, cJuip. 752. CH. XVI.] LIEN LAW NEW YOKE CITY. 61S ■when the tenancy ceases, he is to be deemed the owner of the building, within the meaning of the statute ; and the proceeding may be instituted against him. 21 Barb. 520, off. 19 JSfew TorJc, 234. The lien would extend to his interest in the building, and also in the land, if he has any. II. If the owner sells the premises, in good faith, before the notice of lien is filed, the right to effect a lien is lost {a). Laivs of 1866, chap. 752; 2 E. D. Smith 694; Id. 616; 3 Id. 678; 4 Id. 721 ; 29 Barb. 631 ; s. c. 17 Sow. 449. The death of the owner will be fatal to a lien subsequently acquired. It was so held, at least, under the act of 1851, where the contracting owner died, and the contractor afterwards filed his notice to acquire a lien, specifying the amount of his claim, the name of the deceased owner, and the names of his executors ; it not appearing that a devise of the premises in question had been made by the testator to his executors. 2 E. D. Smith, 583. And the court, ^er Ingraham, F. J., remarked: "If no lien has been created prior to the death of the owner, and the title has passed to another, whether by purchase, devise, or otherwise, no lien can be acquired against such subsequent owner by proceed- ings founded on claims arising under a contract with the deceased owner." lb. 589. And in respect to the question whether a lien could be acquired against an executor in any case, the same judge further observes : " There may be cases where such a pro- ceeding can be instituted against executors, such for instance as that of a devise by the testator, of his real estate to his executors ; but without title to the property of the testator on which the lien exists, no such proceeding can be maintained against the execu- tors of the deceased owner." lb. Q>). In respect to married women, having separate estates, it was (a) Under the act of 1863, (p. 859, § I,) a lien could be acquired against the owner, notwithstanding any sale, transfer, or incumbrance made or incurred at any time after the commencement of the work, or furnishing of the materials. But by the recent amendment of the statute, {chap. 152, Laws of 1866, anfe, p. 615, note,) such sale, transfer, or incumbrance will take precedence over the lien, if the same is made or incurred in good faith, before the notice of lien is filed. (J) Under the act of 1863 (p. 859, § 1, anie, p. 611, «ofe), a lien may be created " notwithstanding any sale, transfer, or incumbrance made or incurred at any time after the commencement of the work, or furnishing of materials." This language is * quite general, and may possibly be held to include a " transfer " by operation of lawi arising from the death of the contractmg owner. 620 LIEN LAW : NEW YOBK CITY. [CH. XTL formerly doubted whether they could make a contract for the erection of a building ; or whether they could, by any contract, subject such building to a lien, except by mortgage or other pledge, in writing, duly acknowledged. 1 K D. Smith, 729 ; 2 Id. 662, note; 4 Ahh. 472, s. c. 3 K D. Smith, 666 ; 21 Barh. 551 ; 22 Id. 371 ; 26 Id. 419. But the question is no longer in doubt, it having been determined both by statute and by the court of ap- peals that a married woman may contract, in such a case, the same as if she were unmarried. Laws of 1860,^. 157 ; 1862, j?. 343 ; 20 New York, 247. The person for whom the building is erected, and who con- tracted to pay for it, is " the owner " within the meaning of the statute. 12 Ahh. 129. And, therefore, where a lien was sought to be obtained upon a public school building in the city of New York, the ward school oflScers, who selected the site and contracted for the building ; the board of education, under whose direction the school of&cers acted in so doing, and who paid for the build ing ; and the mayor, aldermen, and commonalty of the city, who had the use of the building, and the right to dispose of it after its use as a school ceased — were all held to be proper parties to be joined as owners of the building within the meaning of the stat- ute.. Ih. Extent of owner's liahility.} It is provided by the Statute that the owner of the building and premises shall be liable to the contractor, or other party entitled to a lien, for the full and fair value of his claim or demand, &c., to the extent of the right, title, and interest of such owner in the house or building, and the appurtenances and lot on which the same shall stand, and which the owner shall have therein at the time of filing the notice of lien, and to no greater extent. Laws of 1866, chap. 752 ; 1863, jp. 859, § 1; ante, p. 611, note. But that such owner shall not be obliged to pay a greater amount than the price agreed to be paid by the contract, or if there be no specific contract, a greater amount than the value of the work performed and materials famished. Ih. ; and see 1 K D. Smith, 700. It was settled, under the previous statute, that the claimant, in his proceedings againt the owner, was confined to the building, &c., which had been erected, or altered, or repaired, and to the lot of land upon which the same stood, and that no judgment, CH. XVI.] LIEN LAW : KEW YORK CITY. 621 under the statute, cx)uld be awarded against tlie owner personallyj where he was not personally liable by contract to the claimant. 1 K D. Smith, 626 ; 2 Id. 589 ; Id. 595 ; Id. 657; Id. 664 ; 4 Id. 721 ; Id. 729. But this liability has been extended by the recent statute ; and now, the owner is personally liable to the party having the lien, to the extent of the amount due by him to his contractor. laws of 1863,^. 859 ; ante, p. 614, note. The owner's liability is also limited to the amount due upon his contract, at the time the notice of lien is filed ; and this, too, whether the lien is in favor of the original contractor, sub-con- tractor, or other party. Thus, under the previous statute it was held, that the contract of the owner was conclusive as to the amount which he could be compelled to pay, if he had observed good faith and performed his contract according to its terms; and that he could not be compelled, in any event, to pay more than the contract price. " I regard this proposition," says Wood- ruff, J., " as lying at the foundation of the whole proceeding, and as declaratory of and controlling the rights of the parties. And, therefore, in applying the subsequent provisions of the statute, which are merely designed to secure and enforce those rights, we are to keep the provisions of this first section always in view, and mould or adapt the remedy, so far as it is entrusted to us, so as to effectuate the object, and, if possible, harmonize the whole." 1 E. D. Smith, 639 ; and see Id. 647 ; Id. 651 ; Id. 692 ; Id. 681 ; 4 Id. 719 ; Id. 727 ; Id. 760. And so, the contract is to govern in respect to the time when the moneys are to be paid ; and therefore, the owner cannot be required to pay money to the claimant before it becomes payable according to the owner's agreement with the contractor. Id. ibid. And where the owner has contracted with another for the erection of a building, all sub-contractors and others furnishing labor or materials to the contractor, must, so far as they rely upon the owner or his house as security under the statute, be deemed to do so in subordination to the owner's contract, and upon the credit which the terms of such contract offer for their reliance. Id. 626 ; Id. 641. But it is sufficient if the claimant makes out in the first instance a prim,a facie case, and this he can do by showing a contract between the owner and contractor, and a performance on the part of the contractor, which will entitle the latter to a 622 LIEN LAW : NEW YORK OITT. [CH. XVI. payment under the contract. 1 E. D. Smith, 668 , Id. 684 ; Id. 722. Notts Lien Law, 115. It was held previous to the recent amendment of the statute, that where the contractor for the performance of work towards tlie erection of a building, abandoned the work before the same was completed, and before any payment became due, so that by the terms of the the contract the owner was not liable, the laborers and sub-contractors employed by the contractor, could not, by filing the notice prescribed by the statute, acquire liens upon the building or lot of ground, and compel the owner to pay them for the work and labor actually performed by them (a). 2 E. D. Smith, 560 ; «. c. 1 Ahb. 360 ; and see 4 Id. 433 ; s. c. 3 E B. Smith, 650; 2 Hilton, 365. JSTor could they ac- quire a lien, in such case, by proofs that the contractor was induced to enter into the contract by the owner's false and fi-audulent representations, respecting the subject of the contract. And even if the contractor, in case of such representations, in- stead of suing for the fraud and claiming damages therefor, had his election to waive the tort, and sue for the value of his work and labor, the laborers and others employed by him, could not make that election for him ; they could not waive the fraud practiced upon their employer, nor relieve the owner from liabil- ity for damages incurred by the fraud. Id. ibid. Nor could the owner be made liable to a sub-contractor, or other party dealing with the contractor, where unliquidated damages had accrued to the contractor by reason of the violation of the con- tract on the part of the owner ; but the lien was restricted to the funds due, or to grow due, upon the contract. Id. ibid; and see 4 mil, 193 ; 7 Id. 525 ; 7 How. 352. And so, where, in a proceeding by a sub-contractor,it appeared that the work and materials for which he claimed to recover, did not conform to the original contract ; that the deviations there- from were not authorized by the owners, nor, except in part, by (a) Under the recent statute, a party is entitled to a lien if the labor was per- formed or materials furnished "in pursuance of, or in conformity with, the terms of any contract with, or employment by, the owner, or by or in ouxordance with (he directions of the owner or his agent." Laws of 1863, p. 859, § 1. If; therefore, the work is done or the materials furnished by, or in accordance with, the directions of the owner or his agent, the owner is liable to the sub-contractor or laborer, or other person performing the work or fiimishing the materials, notwithstanding that the con- tractor has abandoned his contract, and the owner is not liable to him. CH. XVI.] LIEN LAW : NEW TOEK CITT. 62S their architects, and that the work, &e., had not been accepted by them ; it was held that the owners were not liable. 2 E. D. Smith, 693. And Judge Brady, in that case, after stating the facts necessary to be established to enable a party to recover, remarked : " These are essential prerequisites ; and it would be unjust to a defendant owner to dispense with either, but more particularly to hold him responsible to the mechanic or material man, if the work done or materials furnished are not, and neither of them is, in conformity to the contract, and nothing, therefore, due to the contractor. It is true that this would seem to impose upon the persons named the duty of ascertaining that the mate- rials or work were in conformity to the contract ; but the law must make their lien, thus acquired by legislative enactment, sub- servient to the owner's right ; between whom and them there is no privity of contract, and to whom they must be strangers." Ih. 695 ; and see 1 Id. 692 ; 2 Hilton 365, ante, p. 622, note. If payments are made by the owner, in good faith, according to the terms of his contract, before the notice of lien is filed, they must be allowed to him in making up the aggregate which he is liable to pay. 1 K D. Smith, 625 ; Id. 647 ; Id. 658 ; Id. 692. And, consequently, if there is nothing due to the contractor, upon his contract, the owner cannot be made liable, whether the pro- ceeding is instituted by the contractor, or a sub-contractor, {a). Id. ibid, and Id. 651 ; Id. 717 ; 3 Kern. 70 ; s. c. 2 E. D. Smith, 689. And where the proceedings were instituted at the request of the owner, who had promised to pay the demand on being furnished with an order from the contractor, which was done ; it was held that this, at most, was only an implied admission on the part of the owner, that there was something due on the con- tract, and that it did not preclude him from showing the truth to be otherwise. 1 Sand. S. C. R. 14. But even though tliere is money due under the contract of the owner which has not been paid to the contractor, yet if there (a) Whether the owner can avail himself of payments made before they become due, according to the terms of the contract, where a sub-contractor is the plaintiff, and his lien is filed after such payments are made, though before they are due, qiMxref See 1 E. D. Smith, 141. He may, it seems, if the payments are made in good faith ; though otherwise if they are made with intent thereby to defraud the sub-contractor, or other party, and defeat the beneficial design of the statute. 3 Id. 660 ; and see 1 Id. 742. 624 LIEN LAW : NEW YORK CITY. [CH. IVI. are prior liens upon the property, the owner is entitled to have them taken into account in determining the extent of his liability. 1 E. D. Smith, 647 ; Id. 673. And if those liens exceed, in amount, the sum due to the contractor, it is a good defense to the proceeding. Id. 664. The owner, however, may be prosecuted in an ordinary action for a balance due to the contractor ; and it is no defense to such action, that parties have acquired liens for labor performed and materials furnished by them at the request of the contractors. 2 Duer, 354. Extsnt of the lien.] The claimant's lien extends only to the right, title, and interest of the owner, in the house or building erected, altered, improved, or repaired, and the appurtenances and lot on which the same stands, existing at the time the notice of lien is filed. Laws 0/I866, cha^. 752 ; 1863, p. 859, § 1, ante p. 611, note. And it extends to such right, title, and^nterest, notwithstanding any sale, transfer, or incumbrance made or incurred at any time after the commencement of the work, or furnishing of the materials (a) ; provided that all mortgages given in good faith for full value, which shall have been executed, and recorded at any time prior to any actual work done, or materials furnished, are not to be affected, or impaired by such lien (a) ; and provided, also, that no owner is to be required to pay a greater amount than the contract price, or value of the work and mate- rials furnished where no specific contract is made. Ih. ante, p. 611, note; and see 20 New York, 247. Formerly the lien did not operate to create a personal liability against the owner, where he was not personally liable by contract to the claimant. See 1 E. D. Smith, 626 ; Id. 662 ; 2 Id. 589 ; Id. 595 ; Id. 657 ; Id. 664 ; 4 Id. 721 ; Id. 729. But, under the recent statute the owner is now personally liable to the extent of the amount due by him to the contractor. Laws of 1863, p. 859, § 9, OMte, p. 614 note. It is not necessary that the owner should have title to the lot on which the building stands ; but it is sufficient if he is the general owner of the building. The lien extends to his interest in the building, and in the land, if he has any. 21 Barb. 520 ; aff. 19 New York, 234. (a) See the modification of this statutory provision by the recent amendment of the statute, ante, p. 615, note. CH. XVI.] LIEN LA-W : NEW YOEK CITT, 625 Where materials are fumislied for several buildings upon adjacent lots, under one contract for the construction of all, a single lien charging the whole debt upon all the buildings is proper. 6 Abb. i)d ; s. a. more fully reported, 4 K D. Smith, 735. And in such case, the lien-holder is entitled to be paid out of all or any of the houses. As, where a lien for materials fur- nished for the erection of seven houses under an entire contract had been prosecuted to judgment and sale ; it was held, that the lien-holder was entitled to the payment of the fall amount of his lien from the surplus moneys arising upon the foreclosure and sale of four of the houses under a prior mortgage, and not merely to four-sevenths of his claim. 16 Abh. 371. Where the owner has transferred the property, and parted with the whole legal title, but has reserved in the deed an equit- able interest, it is doubtful whether such interest could be se- cured under the statute. In construing the statute the terms, " right, title, and interest," it seems, must be taken to mean the legal right, title, and interest which the owner had at the time the notice of lien was filed. 2 K D. Smith, 595 ; Notfs Lien Law, 111. Nor does the lien operate to the prejudice of parties having prior liens and incumbrances upon the premises in question. The right, title, and interest of the owner is to be bound, but not to be enlarged, by the proceeding. lb. 120 ; \ E. D. Smith, 664 ; Ld. mQ ; Id. 673, How a lien is created.'] The lien is created by filing with the county clerk, at any time before the whole work is completed, and within three months after the work is done or the materials furnished, for which a lien is sought, if the work is then finished or abandoned, the notice prescribed by the statute. Laws of 1863,^. 859, §§ 1, 6; ante, p. 611, note ; and see post, p. 626. In order to the acquisition of the lien, the statute must be strictly pursued. 2 E. D. Smith, 611 ; 3 Id. 632. ISTor can the court in the subsequent proceedings to foreclose the lien, disre- gard or amend any defect in the notice to be filed, which is made by the statute a matter of substance. 1 Id. 654. " We cannot, by amendment," says Woodruff, J., " give the claimant a lien when the act has not been complied with, any more than in a proceeding to foreclose a mortgage, we can (on discovering that 626 LIEN LAW : NEW TOEK CITY. [CH. XVL the plaintiff has no niortgage)^ direct the defendant to execute and deliver one." Ih. 658. But under the recent statute, no variance as to the persons named as contractor, owner, or debtor, in the notice of lien, will affect or impair the rights of the claim- ant. Laws of 1863,^. 859, § 2; ante, p. 612, note. Under the previous statute, the notice of lien must have been filed within six months after the performance of the labor, or the furnishing of the materials. And in a case where it appeared that the work was performed more than six months before the notice was filed ; it was held that no lien was obtained ; the fil- ing of the notice within the designated time, being held to be one of the conditions to the creation of the lien. 1 E. D. Smith, 695 ; 3 Id. 622. Requisites of the notice of lien.^ The statute requires the notice to state the residence of the claimant, the amount claimed, from whom, and to whom due, or if not yet due, when it will become due, with a brief description of the premises, by street, number, or a diagram, or boundary, or by a reference to maps open to the public, so as to furnish information to persons examining titles, and the supposed owner, although no error in the owner's name will impair the validity of the lien. Laws of 1863, -p. 859, § 6 ; ante, p. 613, note. The notice should also show that the labor was performed or materials furnished, in the erection of, or in altering, improving, or repairing, the house or building, or appurtenances to the house or building ; and that such house or building and appurtenances, were situated in the city and county of iN'ew York. Laws o/" 1863, ^.859, §§1,6; am,te,p.Qll,note; and seel I!.D.Smith,Q88:]Vott''s Lien Law, 10. In respect, however, to the last requirement, in a case arising under the previous statute, where the notice was addressed to the clerk of- the city and county of New York, and the building was described in the notice as situated in 85th street, between 4th and 5th avenues, but without stating that it was in the' city ; it was held that it was a sufficient compliance with the statute to sustain a judgment. 75. / and see 4 Ahh. 432. In respect to the matters expressly required by the statute to be stated in the notice, the claimant, as we have seen, must specify the " amount claimed." And the omission to state any sum so due to the claimant would no doubt render his proceed- CH. XVI.] LIEN LAW : NEW TOEK CITY. 627 ings to acquire a lien illegal and void. Care should also be taken by the claimant to state in the notice the whole amount due to him, as his subsequent recovery would be Umited to the amount there claimed. See 1 E. D. Smith, 6T1 ; JVotfis Lien Law, 10. The notice, under th'e previous statute, was required to specify the name of the owner of the building ; and it was held that an omission to comply with this requirement rendered the proceeding invalid. 1 K D. Smith, 654 ; and see 4 Abb. 4Y2 ; s. c.Z E. B. Smith, 666. Under the present statute, as we have seen, the notice is required to state the supposed owner of the building. No error or variance, however, in the owner's name wiU impair the validity of the lien. Laws of 1863, p. 859, §§ 2, 6 ; ante, p. 612, note. If the owners are a corporation, it should be named in the notice as owner ; but if they are an unincorporated association, the individuals composing it should be named as defendants in the proceedings to foreclose, and the notice should describe them either by their associate or joint name, or otherwise, so that they can be identified. 1 E. D. Smith, 656. The statute further requires that the notice shall contain " a brief description of the premises, by street, number, or diagram, or boundary, or by a reference to maps open to the public, so as to furnish information to persons examining titles." Laws of 1863, jj. 859, § 6 ; ante, p. 613, note. Under the previous statute, the notice was required to state the situation of the building, by its street and number, if the number was known ; if the building was not known, it was held necessary to- describe the building briefly by its situation on the street, and the distance at which it commenced from some other street or known boundary. Though a description by a general st'atement, that the premises were on the west side of a street, between two others, was suffi- cient, if the number was unknown. In such case, however, the complaint, upon the foreclosure of the lien, should be made more definite, so that the sheriff, in case judgment should be rendered for the claimant, cc old determine, beyond doubt, the premises to be sold. 4:Ahb.i32. It is proper, also, though not necessary, to state in the notice when the work was done or the materials furnished, so as to show that three months had not since then elapsed. This, how- ever, is matter of defense, and the defendant may be relieved even on motion from a lien filed more than three months after 628 LIEN law: new tore city. [ch. xvi the work is done, or the materials fiimished ; or he may set it up as a defense at the trial. See 3 Abh. 475, per Ingraham, F, J. ; s. c. 3 E. D. Smith, 621, ' The notice should be verified by the oath or affirmation of the claimant. Laws of 1863, j>. 859, § 6. For forms, see Appendix, Nos. 321, 322. In respect to the form of the notice prior to the recent amendment of the statute, see Laws of 1851,^. 953, § 6; 1 jE! L>. Smith, 654; Ld. 668; Id. 671; Id. 688; Id: 716; 3 Id. 621 ; Id. 662 ; 4 Id. 724 ; 3 Abb. 475 ; 5. c. 3 E. D. Smith, 621 ; 4 All. 432 ; Id. 472; s. c. 3 E. D. Smith, 666; 20 New York, 247 ; Nott's Lien Law, 10, 11. Duty of the county cleric.'] The county clerk is required to enter in a lien docket the name and residence of the claimant, the person against whom claimed, the amount, and the date of filing, the street and particular place where located, in such man- ner as to be convenient in searching for the Hens by street and block. Lams of 1863, p. 859, § 6 ; ante, p. 613, note. And he will be entitled to charge and receive for this service a fee of ten cents on filing the same. Ih. The clerk is also required to enter in this do,cket a notice that a suit is commenced thereon, upon a notice of that fact and . affidavit of service being filed with him, for which he will be entitled to receive five cents. LI. % The county clerk is required to make searches for such liens on being furnished with a proper description of any property, and without reference to the individuals against whom the lien is filed — ^his fee's to be five cents per year for the time embraced in the search. Id. Efect of the lien.] The filing of the notice of lien will have the effect of a lis pendens, in respect to any subsequent change of interest in the property affected, and as to liens upon the prop- erty thereafter acquired. See 1 E. D. Smith, 679 ; Laws of 1863,^. 859, § 1 ; anU, p. 611, noU. In respect to the effect of the lien upon the remedy of a party to whom the owner or contractor is indebted, it has been decided that the contractor may, notwithstanding he has acquired a lien, commence a distinct personal action against the owner for the CH. XVI.] LIEN LAW : NEW YORK CITY. 629 price or value of the labor performed, or the materials famished 2 E. D Smith, 541. And that the Bub-contractor, or other party dealing with the contractor, may, in like manner, prosecute the contractor, after acquiring a lien against the owner. Id. 540. And that he may do this, even though he has commenced proceedings to foreclose his lien against the owner, 1 Id. 670 ; though otherwise in respect to the original contractor. 2 Dv^r, 612. Nor will the filing of a notice of lien, showing work per- formed in pursuance of an agreement with a contractor, and in conformity with a contract between the contractor and owner, estop the claimant from prosecuting an ordinary personal action against the owner, and averring therein a direct employment of the plaintiff by the owner. 4 E. D. Smith, 756. Where the contractor brings a personal action against the owner to recover a balance alleged to be due him upon a con- tract for the erection of a building, the defendant cannot set up as a defense to the action that mechanics and others, dealing with the contractor, have acquired liens upon the building for labor performed, or materials furnished, at the request of the con- tractor, 2 Buer, 354. The remedy of the defendant, in such case, is to institute a cross-action, making all the persons claim- ing liens parties thereto ; or he may make a special application for leave to pay into court the amount due from him upon the contract, to abide a final decision upon the claims, and for a stay of proceedings in the mean time. Ih. And the fact that there are claims under the lien law which have not been satisfied, or even established, can be no defense to an action for the recovery of the sum which the owner had covenanted to pay. IV. The payment by the owner of any valid lien, operates as a payment to the contractor, of the amount of such lien. The priority of different liens.] The statute provides, that in case of successive liens by the contractor, sub-contractor, workman, person, or persons furnishing materials, and of a num- ber of liens in favor of different persons, their rights and priori- ties shall be determined as follows : The lien of the laborer, cartman, material man, and sub-con- tractor, shall be entitled to a priority over the contractor for the payments due for his services or materials : In case of several buildings done under one contract, in con- VoL. I 44 630 LIEN LAW : NEW YOEK CITY. [CH. XVL flicting lienB, each shall have priority on the particular building where his labor is performed, or his material is used : Persons standing in equal degree as colaborers, or various persons furnishing materials, shall have priority according to the date of the filing of their liens : "Where several lien notices are filed for the same demand, as in case of a contractor including claims for workman to whom he is indebted, and a lien by the workman, the judgment shall provide for the proper payments, so that under the liens filed, double payment shall not be required ; but no payments volun- tarily made shall impair the lien of any person, except the one to the person so paid. Laws of 1863, p. 859, § 3 ; amie^ p. 613, note. In cases other than those above provided, the liens are to be paid according to the priority of notice filed with the county clerk. 1 E. D. Smith, 672 ; and see Id. 664 ; Id. 666 ; Id. 699. How long liens to continue.] It is provided by the statute, that liens shall, in all cases, cease after one year, unless by order of court the lien is continued, and a new docket made, stating such fact (without a discharge of the lien.) Laws of 1863, p. 859, § 11 ; ante, p. 614 ; and see 1 E. D. Smith, 740 ; 4 Id. 734; . c. 6 Abb. 99 ; 19 Id. 132 ; and j?os<, " Discharge of lien." Where the holder of the lien has in good faith commenced proceedings to enforce it, an order will always be granted to con- tinue it ; and this order may be made ex-parte, or on notice. 19 Abi. 132. Discharge of lien.] The lien so filed, may be discharged as follows : 1. By filing a certificate of the claimant or his successor in interest, acknowledged or proved as the satisfaction of a mortgage is required to be, stating the lien is discharged. 2. By depositing the amount of any lien and interest to the credit of the lien, with the clerk where the lien is filed, provided no action shall have been commenced for the enforcement of said ien, and in case an action shall have been commenced, then such additional amount as security for the costs thereof, as a judge of tie court where such action shall have been commenced, shall CH. XVI.] LIEN LAW : NEW YORK CITY. 631 deem proper, whict sum shall be held subject to such lien in place of the land and building ; 3. By an entry of an order to discharge the same, by any judge of a court of record, made on due proof that one year has elapsed, and that no action or proceeding has been had on such lien ; and a certificate of the clerk that no notice of such proceeding has been filed with him ; 4. By a judgment or docket of a judgment exempting such property after ten days, on proof of notice of such judgment, and that ten days have elapsed, and no appeal has been taken there, from; 5. By an entry by order of the court that the judgment has been secured on appeal ; and, 6. By satisfaction of any judgment on such lien. Laws of 1863, p. 859, § 10 ; anU^ p. 614, note. The lien will also be discharged by a judgment of non-suit, or other judgment against the claimant, in proceedings commenced by him to enforce the lien. 1 E. D. Smith, 682 ; 5. e. 8 How. 207. The efiect of depositing with the clerk a sum of money equal to the amount claimed, is simply to reclaim the land from the lien. The right to the money remains still to be determined ; and to recover it, the plaintiff must prosecute his action before the court, "i, E. D. Smith, 535. " The payment of the money to the county clerk by the owner," said Ingraham, F. J., in the case cited, "has no other effect than to reclaim the land from the plaintiff's lien, and to substitute in its place the money so paid. The right to the possession of the money still remains to be dis- posed of; and to recover it, the plaintiff must still prosecute his claim before the court. If he fails in establishing his claim, the defendant would be entitled to a return of the money from the clerk." II. 538; and see Id. 652, per Woodruff, J. n. PEOCEEDmoe TO Botoeob oe Poebolosb a Lien. The proceeding to foreclose a lien, under the statute, is an equitable proceeding, in which the powers of the court, as a court of equity, are invoked to mould the remedy to suit the cir- cumstances of each case. 1 E D. Smith, 626 ; Id. T40. The proceeding operates only as the foreclosure of a lien, and not aa 632 LIEN LAW : NEW TOEK CITT. [CH, XVI. an action for the collection of a debt, Id. 662 ; 2 Id. 657 ; 3 Id. 637 ; 5. c. 4 All. 205, 208 ; though, as we shall see hereafter, the contractor may be made personally liable to the claimant to the whole extent of his indebtedness, and the owner to the extent of the amount due by him to his contractor. Laws of 1863,^. 859, sec. 9, ante, p. 614, note. The proceeding to foreclose a lien is analogous to an action for the foreclosure of a mortgage, and is governed by the same rules. 1 E. D. Smith, 662 ; 2 Id. 657 ; 3 Id. 637; s. c. 4 All. 205, 208. How proceedings commenced^ The proceedings to foreclose a lien are commenced by the service of a notice upon the owner and incumbrancers when they can be found, and upon all persons having filed notices of lien at the place by them designated, requiring them to appear in court at a day and hour named, and be served ten days before the time specified, except those acquiring after liens, who shall be required to appear suminarily at such time as the court, or a judge thereof, shall order. Laws of 1863, f. 859, §. 5 ; ante, p. 613, note. If the proceeding is instituted by a sub-contractor, or other person having a claim against a contractor with the owner, such contractor may be made a defendant with such owner ; and in such case, the like notice of foreclosure should also be served upon him in the same manner as upon the owner. II. §§ 7, 9 ; and see Laws of 1855, p. 561, § 5. The notice is a substitute, in effect, for a summons in an ordi- nary action, 1 Code B., JV. S. 230 ; 2 Hilton 579 ; and whether the owner, or other party served, appear or not on the day speci- fied, the proceedings thereafter are as in an action. Id. ibid. Who may commence the proceeding.'] Any person or persons who have filed a notice of lien, may institute a proceeding to enforce or foreclose the same. Laws of 1863, p. 859, § 4; ante, p. 612, note. And so, the proceedings to foreclose the lien may be instituted by the owner of the premises, or any other person interested. II. Under the former statute the contractor could not summons a sub-contractor or other claimant of a lien, to appear and account, 2 E. D. Smith, 571 ; Id. 654 ; but this has been changed, as we have seen, the statute not only authorizincr CH. xvl] lien law: new toek city. 633 the party having the lien, to institute the proceeding, but the owner and other persons interested. See % i, supra. Against whom the proceedings may he instituted.'] The pro- ceeding is instituted by the contractor, laborer, workman, mer- chant, or trader against the owner of the building. And all persons who have acquired liens under the statute, and all incum- brancers of the property, should be united as defendants in the action. Zaws oflS63j). 859, §§ 4, 5 ; ante, p. 612, Twte. Where the plaintiff is a sub-contractor or other person deal- ing with the contractor, he may join such contractor with the owner as a party defendant in the proceedings. This he could do at least under the previous statute, (Zaws of 1855^. 761, § 5) ; and the present statute seems to contemplate the same thing, if it does not actually require it to be done. Zaws of 1863 _p. 859, §§ 7, 9 ; ante, p, 614, note. Within what time the proceedings to he commenced^ The proceedings to enforce or foreclose the lien may be commenced after ten days, and within one year, from the time the notice of lien is filed. Zaws ^ 1863, j?. 859, §§ 4, 10, 11 ; anU, p. 612, 614, note. The courts having jurisdiction.] Previous to the recent amendments of the statute, the only courts having jurisdiction in the proceedings for the foreclosure of the lien, were the court of common pleas of the city and county of New York, the marine court, and the district courts of that city. See Zaws of 1851,^, 953, § 4 ; 29 Barb. 631 ; s. c. 17 Zlow. 449 ; 19 J^ew York, 440. But now, where the aggregate of the liens shall be less than five hundred dollars, the proceedings may be had before any court in that city ; and where they exceed that sum at the time the proceedings are commenced, the action must be conducted in a court of record having equity jurisdiction, *'. e., in the Supreme Court, or the superior court, or court of common pleas. Zaws of 1863,^. 859, § 4; ajitep. 614, note. None of the courts in the city of New York can be deprived of jurisdiction by reason of the residence of any parties else- where. Zh. Notice of foreclosure, and service thereof I\ The notice should be in writing, and should require the defendants to appear in the 634 LIEN LAW : NEW TOEK CITY. [CH. XVI. proper court (to be specified in the notice,) at a day and hour named, not less than ten days irom the service thereof, and sub- mit to an accounting and settlement in such court, of the amount due, or claimed to be due, for the labor performed, or the mate- rials famished. Laws of 1863, p. 859, §§ 4, 5 ; ante, p. 612, note. The notice, in analogy to the previous practice, should also contain a suflScient reference to the alleged lien, 1 E. D. Smith, 687 ; stating the amount of it, and when it was docketed. 1 Code H., JV. S. 286. But the statute does not require that the time when the lien was docketed should be stated in the notice ; and, it seems, it is sufficient if it appears on the trial that it was filed and docketed at any time before the whole work was completed, and within three months after the work was done, or materials furnished. Laws of 1863, p. 859, § 6y ante, p. 613, note ; 1 £. D. Smith, 689. It should also be stated that the labor had been performed or the materials furnished, though it need not state the time when this was done (a). Lh. The notice should also require the owner to appear in the court in which the proceeding is instituted ; and it would be ir- regular to summon him to appear before the clerk of the court. 1 How. 353. If the proceedings are pending in a court of record, it should require him to appear at a special term of the court. Lh. For forms of notice, see Appendix, Nos. 323, 324. No variance as to the persons named as contractor, owner, or debtor, in the notice of foreclosure, will impair 'or a£Pect the rights of the claimant, as defined by the statute. Laws of 1863, p. 859, § 2; ante p. 612, note. The statute requires the notice to be served iipon the owner and incumbrancers when they can be found, and upon all per- sons who have filed, notices of lien, at least ten days before the time therein specified, in which the defendant is required to appear. Laws of 1863, p. 859, § 5 ; ante p. 613, note; except that all persons filing liens, before final judgment, shall be notified to appear and join in the proceedings, by a notice to be served at least five days before the entering of the judgment. Ih. § 4 ; (a) Whether the notice should also describe the building upon which the lien has been obtained, other than by a reference to the notice of lien on file with the clerk, SuoBre ? \E.D. Smth, 681. CH. XVI.] LIEN law: NEW TORE CITY. 635 and except those acquiring after liens, who shall be required to appear summarily at such time as the com-t, or a judge thereof, shall order. li. § 5. The statute does not specify the manner of service, except that the service may be by publication, as to any of the parties not residing in tljis State, or who may have removed therefrom. li. It does not say, even, that the service shall be personal. And in respect to persons who have filed notices of Uens, it re- quires the notice to be served at the place by them designated in the notice of lien, / h. ; though personal notice served upon them at any place in the city would no doubt be held sufficient. In the absence of any more definite rule on the subject, the better course would be to serve the notice in the manner required by Eule 18 of the Supreme Court, in respect to the service of a sum- mons, &c. ; which rule requires the party making the service, if made by any other person than the sherifiF, to state in his affi- davit of service, when, and at what particular place, he served the same ; and that he knew the person served to be the person mentioned and described in the summons, as defendant therein ; and also whether he left with the defendant such copy, as well as delivered it to him. And see NotCs Lien Law, 23. For form of affidavit of service, see Ajypendix, ~Eo. 325. Bill of particulars.] The practice in these proceedings is, in substance, the same as in ordinary actions under the Code. The plaintiff, therefore, may be required to give to the owner, or other defendant, a bill of particulars of his alleged claim, which must be prepared and served the same as in other actions. Code, § 158 ; Laws of 1863, p. 859, §§ 2, 5 ; ante, p. 613, note; and see Laws of 1851, p. 953, § 6. In drawing the bill of particulars, care must be taken to include all the items of the plaintiff's claim ; as he will not be permitted to recover for any work, &c., not included in it. 3 Aih. 475 ; s.e.S K D. Smith, 622. No variance in the bill of particulars, as to the persons named as contractor, owner, or debtor, will impair or affect the rights of the claimant. Laws of 1863, p. 859, § 2 ; ante, p. 612, note. Proceedings in case of owner's default.'] In case the owner, or other person notified, shall neglect to appear, and object or 636 LIEN LA-W : NEW TOEK CITY. [CH. XIV. insist on any claim, as required by the notice, on filing with the clerk of the court an affidavit of the service of such notice, and of the default of the defendants to appear, the court will take the proofs, and determine the equities of the parties. And in such case, the court may determine the rights of all the parties, and the amounts due to each, and by whom to be paid, and may order any question tried by a jury, or refer the whole matter to a referee, to examine and pass upon the rights of the respective parties, and report upon the same in a summary manner, as in case of claims to surplus moneys in mortgage cases, on which every party will be at liberty to take proofs for or against any claim or lien; and such judgment or decree shall be made thereon, as to the rights and equities of the several parties among themselves, and as against any owner, as may be just. Laws of 1863,^. 859, § T ; ante, p. 613, note. If any question is referred to a jury, a writ of inquiry is issued in the usual form, the same as in other actions. And in respect to the proceedings upon the execution of the writ, the practice is stated by Mr. Nott, in his Treatise, substantially thus: The times when the sheriflf's jury sit can be ascertained from printed lists, issued at the sheriff's office. The attorney for the plaintiff, before the time when it will be convenient to take the inquest, must deliver to tljie sheriff the writ, order, &c. He should, also, before the inquest, have prepared an inquisition for the sheriff and jury to sign. The sheriff's fees are three dollars, and are to be paid at the time of commencing the inquest. After the inquisition is taken, it is to be signed by the sheriff and jury, and the sheriff must attach his seal. And the jury should find a verdict, and sign their inquisition, before hearing any other case. Motfs Lien Lom, p. 47. Upon the return of the writ of inquiry, or the report of the referee, or the assessment by tlie court, as the case may be, judgment is to be entered upon the same, and execution may issue for the enforcement of the claim so adjudicated and estab- lished, in the same manner as in similar cases upon other judg- ments, in courts of record having equity jurisdiction. Laws of 1863, p. 859, §§ 3, 7, 9; ante, p. 611, noU ; and see post, "Judgment" and "Execution." If the contractor was joined with the owner as a defendant in the proceedings, the court, upon his default, may render judgment CH. XrV.] LIEN LAW : NEW YORK CITY. . 637 against Mm for the amount whicli shall be found owing by bim, in addition to the judgment provided for against the owner. Laws of 1863, § 9, supra ; and see ante, p. 614, note. Appearance hy owner, and service of hill of particulars.] If the owner intends to appear in the action, which he may do either in person or by attorney, a notice of appearance should be given to the attorney for the plaintiff. The object of this is the mutual convenience of the attorneys, who vnll thus be enabled to enter into a stipulation and rule for pleading, and thereby save the trouble and delay of an unnecessary appearance at the special term. See Laws of 1863, p. 859, § 5 ; ante, p. 613, note; JV^otfs Lien Law, 29. If the owner has any demands which he desires to offset against the plaintiff's claims, he should serve a bill of particulars of the same, if the plaintiff has demanded it. The bill of partic- ulars should contain all the items of the defendant's set-off; and items not contained in it would not probably be allowed to him. Bee 3 Aii. 475 ; s. c. 3 E. D. Smith, 622. In respect to the extent of the owner's right to set-off, see post, " What may be shown in defense." The service of the bill of particulars should be the same as in personal actions. But the service of a bill of particulars upon the claimant, when demanded, is unnecessary to entitle the owner to prove that the work was not done in accordance with the contract, or that the contract has not been performed ; nor is it necessary that a bill of particulars should be served to entitle him to recoup his damages for imperfections in the work. 1 E. D. Smith, 697. It is only when a set-off is claimed that the defendant is required to serve a biU of particulars. Lb. Proceedings on issue joined between the parties.] The stat- ute provides that, within ten days after the service of the no- tice of foreclosure, each party shall file in court, or with the clerk, a brief statement of his claim. Thereupon, any party in- terested may, in five days, state his objections to the claim ; and copies of these, if in a court of record, are required to be served on the attorney of any claimant whose claim is to be affected by the objection. The issue thus made is then to 63S LIEN LAW : NEW YORK CITT. [CH. XYI. be tried, as in ordinary actions. Laws of 1863, p. 859, § 5 ; aute^ p. 613, 7iote. Under the previous statute, an issue to be joined in open court was contemplated. But the practice was, in the court of common pleas, upon filing the notice of foreclosure, &c., to enter a rule requiring the plaintiff to file a complaint as in an action, and to serve a copy thereof, within ten days, upon the defendant ; and that the defendant in like manner file his answer, and serve a copy thereof within twenty days after the service of the com- ].laint. 1 Code B., JSf. S. 230 ; NotCs Lien Law, 31. The pro- ceedings then assumed, in all respects, the form of an ordinary civil action, and were in all things governed by the same rules as other civil actions brought for the enforcement of similar rights. Id. ibid; and 1 E. D. Smith, 626 ; Id. 700. If the suit was brought by a sub-contractor, or other party dealing with the contractor, and the owner desired the contractor to be brought in as a party to the proceedings, he could make the application for that purpose on the appearance of the parties in court, and without waiting until issue was joined. Ih. 699. " And this appears to me," said Woodruff, J., " to be the most convenient practice. The facts are all then before the court, which show the necessity of summoning the contractors. The notice of claim filed with the county clerk, the notice to the owner to appear and submit to an accounting, &c., by which the foreclosure is instituted, and the bill of particulars of the plain- tiff's claim, and probably, also, the counter-claims set up by the defendant in his bill of particulars, all show what relation the contractors bear to the controversy, and that their presence is necessary." II. 712. And so, in the marine and district courts, the parties ap- peared on the return day of the notice (which was treated like a summons), and the notice and bills of particulars of the parties were then filed. Issue was then joined as in ordinary actions. Notfs Lien Law, 78. If the defendant desired the contractor to be made a party to the proceedings, the application for that purpose was made on the appearance of the parties in court ; and both the marine and the district courts had the same power to require the contractor to be brought in as a party, as the court of common pleas. 11.; 2 E. D. Smith, 577; s. c. 1 Abb. 415. There is nothing in the present statute inconsistent with the CH. XVI.] LIEN LAW : NEW YOKK CITY. 639 practice above stated ; and it is presumed it is still applicable to proceedings for the foreclosure of a lien under the statute. Pleadings.'] The pleadings of the jjarties are not regulated by statute, nor by any express rule of the court ; except tliat each party is required within ten days -after the service of the notice of foreclosure, to file in court, or with the clerk, a brief statement of his claim. And any person objecting to the same, may, within five days, state such objections, and serve copies thereof on the attorney of any claimant, and tlius an issue is joined as in ordinary actions. Laws of 1863, j>- 859, § 5 ; ante, p. 612, note. In practice, however, the "statement" and "objections" referred to, take the form of an ordhiary complaint and answer in an action under the Code of Procedure ; and therefore the rules prescribed by the Code in regard to the form of pleadings, will determine the pleadings in these proceedings. See 1 E. D. Smith, 626 ; 3 Id. 657; Id. 677; Notfs Lien Law, 31. 1 Complaint. The complaint should allege the facts relating to the plaintififs claim and lien, necessary to be established on the trial to entitle him to the relief sought. Thus, it should aver that the labor was performed and the materials furnished at or before the time when the notice of lien was filed, 2 E. D. Smith, 639 ; that such labor and materials were furnished in pursuance of, or in conformity with, the terms of any contract with, or employment by, the owner, or by, or in accordance with, the directions of the owner or his agent. Id. 554 ; Id. 558 ; s. cases 1 Abh. 319 ; Id. 322 ; Laws of 1863, § 1 ; ante, p. 611, note; that the owner or contractor, as the case may be, is indebted to the plaintiff, 1 E. D. Smith, 626 ; and generally, it should allege all the facts, showing not only that the plaintiff has a valid claim for work performed and materials furnished, but also the facts, showing that he has acquired a valid lien upon the premises of the defendant for the security of the same. See the cases supra ; and see also, 1 E. D. Smith, 626 ; Id. 722 ; 2 Id. 639; Id. 556; s. c. 1 Abh. 321 ; ZED. Smith, 677; Id. 657; 8. c. 4 Abh. 432 ; and see 1 Abh. PI. 522 ; Notfs Lien Law, 32, 33. For forms, see Appendix, Nos. 326, 327. If the complaint is defective, it may be set aside on motion, for irregularity, 2 E. D. Smith, 556 -, s.o.l Abb. 321 ; or if the 640 LIEN LAW : NEW TOEK CITT. [CH. XVI. complaint does not definitely describe the premises, so as to enable the sheriff to determine without doubt the premises to be sold, the defendant may demur, 4 Id. 432 \ s. c.Z E. D. Smith, 65Y ; or when it does not appear how the labor or materials were fur- nished, the court may require it to be made more definite and certain. 1 Abb. 319 ; s. o. 2 E. D. Smith, 554. 2. Otlier pleadings. The defendant may either answer or demur to the plaintiff's complaint. And the plaintiff may, in a proper case, reply to the answer. These pleadings are the same in form as the pleadings in ordinary action under the Code of Procedure. See 1 E. D. Smith, 626, 649 ; 2 Id. 639 ; Nott's Lien Law, 33. Parties to the action.'] Under the former practice, the claim- ant and the contracting owner were the only necessary parties to the action. 1 E. D. Smith, 713 ; Id. 719 ; 2 Id. 577, 582 ; s. c. 1 Abb. 415. But now, not only the owner and claimant are necessary parties, but every person who has filed a notice of lien is required to be made a party to the proceeding, and to have notice of the same. Laws of 1863, p. 859, § 4 ; ante, p. 612, note. The contractor is not in terms required to be made a party, but in analogy to the previous practice he may be brought in at the instance of either party. Thus, the plaintiff, who is a sub-con- tractor, or an employe or vendor of the contractor, may, in the first instance, make the contractor a party to his proceedings. And judgment may thereupon be rendered in the suit against the contractor for the amount found owing by him to the plain- tiff, in addition to the judgment against the owner. Laws of 1863, p. 859, § 9 ; ante, p. 614, note. And as the plaintiff may, by making both the contractor and owner parties, secure a judg- ment against the former,, though failing as against the latter, it will be found advisable, in most cases, to make the contractor one of the original parties to the prbceedings. See 2 E. D. Smith, 693. Besides, it would seem to be necessary to have both the contractor and owner before the court, in order to do justice. " The lien-holder," says "Woodruff, J., " may claim more than is due to him ; and if so, the contractors are interested, and are the only persons interested, to reduce it. The owner has no interest in that question. The owner may deny that he owes the con- tractors ; and if so, the cdntractors have even a greater interest CH. XVI.] LIEN LAW : NEW YORK CITY. 641 than the plaintiff in the determination of that question." * * * " The more my attention is given to this statute, the more I am satisfied that it cannot be rightly administered where the claim is by a sub-contractor or employe, or vendor of the eon- tractors, but by regarding the foreclosure as in the nature of an interpleading suit in equity, in which the presence of all three parties is necessary in order to do complete justice" (a). 1 E. D. Smith, 710, Til ; and see Id. 666 ; and see also, the observations in Wott's Lien Law, 124, 126. And it has been held, therefore, that the contractor may also be brought in as a party to the suit on the application of the defendant, where the plaintiff has not made him a party in the first instance. 1 E. L). Smith, 699 ; 2 Id. 5Y7 ; s.c.l Abb. 415. And not only are the prior lien-holders necessary parties to the action, but those who have acquired liens subsequent to the com- mencement of the plaintiff's proceedings, and before final judg- ment therein. Laios of 1863,^. 859, §§ 4, 5 ; ante, p. 612, note. The application to add other parties to the proceedings may be made on the appearance of the parties pursuant to the notice to appear ; or at any subsequent stage of the proceedings. 1 E. D. Smith, 719 ; Id. 699. In respect to the manner in which parties shall be brought in, "Woodruff", J., in the case last cited, says, "Upon this subject there can be no difficulty in following in substance the former equity practice. An order being made to add the contractors as parties, they can be summoned to answer the plaintiff's complaint with the other defendant already in court ; and, on being served with the order, summons, and complaint, they would be clearly bound to do so, or they could never after complain of any judg- ment which might be rendered between the claimant and the owner." Id. 713 ; and see Id. 721. The Marine Court and the District Courts possess the same power to require the contractor to be brought in as a party, as a court of record. 2 Id. 577 ; s.' c. 1 Abh. 415. And those courts may make any order which is essential to carry into full execu- (o) Whether the law would not be unconstitutional if its administration had not been committed to the court with power to make the contractors parties, as a law by which the contractors' property is taken from them withoirt notice and without "due process of law," quceref 1 K D. Smith, 699, 109, per Woodruff, J.; and sea Nott'e Lien Law, 124 to 126 612 LIEN LAW : NEW YORK CITY, [CH. XVI. tion tlie jurisdiction wliicli tlie statute has conferred upon tliem by authorizing them to entertain these proceedings ; and in this respect it is not material whether the foreclosure be deemed a strictly legal, or an equitable proceeding. Ih., per Woodruff, J. Amendments; waiver of defects, &g7\ In the proceedings to enforce or foreclose a lien, the statute requires the court to proceed without regard to matters of form, which shall be amendable at all times while the proceedings progress, without costs, and judgment shall be rendered according to the equity and justice of the claims of the respective parties. Laws (j/" 1863, _p, 859, § 5 ; ante, p. 612, Twte. And no variance as to the persons named as contractor, owner, or debtor, in the lien, notice, or bill of particulars, or statement of claim, or in any pleading, will impair or affect the rights of the claimants, as defined by the statute ; and every party shall have relief according to the rights of the parties as they shall appear in evidence. Ih. § 2. Before the statute referred to, the court allowed amendments to the same extent as in ordinary actions. 1 E. D. Smith, 639 ; Id. 654, 658 ; Id. Y19 ; 1 Code B., N. S. 285 ; 4 Ahb. 232. In the case of The Em/pire Dressing Go. v. Pickering (cited in NotPs Lien Law, 44), the plaintiff was permitted to amend his complaint, and a new trial was granted after the cause had once gone to trial and been submitted by the counsel. And the court was understood to say, in that case, that inasmuch as the plead- ings in lien cases are required by the court, and not by statute, the court will look upon them with greater leniency than upon ordinary pleadings, and will exercise, with respect to amendments, a more liberal discretion. And so, defects in the proceedings to foreclose a lien may be waived by the parties. Thus, in a case under the previous stat- ute, where the notice of foreclosure omitted to state the name of the contractor, it was held too late to make the objection after the defendant has entered upon his defense, and contested the claim on the ground that nothing was owing by him to the con- tractor. 1 E. D. Smith, 658, 659. And so, it seems, a general appearance by the defendant would waive a merely formal error in the notice. II). 657 ; and see Id. T22. But the court has no power to allow an amendment of the CH. XVI.] LIEN LAW : NEW YORK CITY. 643 notice of lien, with the view of remedying a material defect in it. 1 E. D. Smith, 654, 658. If the complaint, however, con- tains proper averments, the court will overlook immaterial errors, or sustain an imperfect notice, which was in substantial compli- ance with the statute. Ih. ; and see 4 Abi. 432. Notice of trial, and other proceedings. 1 Issue being joined between the parties, the cause is noticed for trial, and placed upon the calendar by either party, the same as in ordinary equity actions. Laws of 1863, f. 859, § 5 ; ante, p. 612, note; Code of Pro. % 256. And the ordinary practice in respect to the other proceedings, before trial, such as the notice of inquest, affidavit of merits, note of issue, and the like, is to be piu-sued. Id. Hid; and 1 Code R., N. S. 230. Trial and proceedings thereon.] The trial is conducted in the same manner, in all respects, as in ordinary actions. The action, however, is tried by the court, without a jury ; except where, on motion, it is directed to be tried by a jury, and the issues are settled aa in other actions, under Eule 33 ; and except where the whole issue is referred to a referee for trial. Laws of 1863, p. 859, §§ 2, 5, 7; ante, p. 612, note. The statnte provides, that all persons having liens, in order to enforce the same, shall prove their demands in the same manner as in ordinary actions at law, except that no variance as to the persons named as contractor, owner, or debtor, in the lien, notice, or bill of particulars, or statement of claims, or in any pleading, shall impair or affect the rights of the claimants, as defined by the statute ; and every party shall have relief according to the rights of the parties as they shall appear in evidence. Laws of 1863, p. 859, § 2 ; ante, p. 612, note. And the court is required, also, to proceed without regard to matters of form, which shall be amendable at all times while the proceedings progress, with- out costs, and judgment shall be rendered according to the equity and justice of the claims of the respective parties. Ih. § 5. The statute farther provides, that in cases where the defend- ants appear and plead, the court may determine the rights of all parties, and the amounts due to each, and by whom to be paid, and may order any question tried by a jury, or refer the whole matter to a referee, to examine and pass upon the rights of the respective parties, and report upon the same in a summary man- 644: LiEsr LAW : new toek citt. [ch. ivl ner, as in case of claims to surplus moneys in mortgage cases, on which every party shall be at liberty to take proofs for or against , any claim or lien ; and such judgment or decree shall be made thereon as to the rights and equities of the several parties, among themselves, and as against any owner, as may be just. lb. 1. What the claimant must show. In respect to the proof required to be given by the claimant to establish his action, it may be stated generally, that he must prove the same facts which it would be necessary for him to prove to entitle him to recover in any ordinary action for work performed and materials fur- nished ; and also the additional facts showing that he has ac- quired a valid lien upon the premises as against the owner. Thus, the claimant must show the notice of lien, and that the same was properly filed. This is proved by a copy of the origi- nal lien, duly exemplified by the county clerk, and his certificate of the filing. 1 K D. Smith, 663 ; and see N'oti's Lien Law, 48, 49,50. The claimant must also show the time when the labor was performed, or the materials furnished, so that it may appear that at the time the notice of lien was filed, three months had not elapsed since the work was completed, or the materials furnished. Laws of 1863, p. 859, § 6 ; ante, p. 613, note ; 1 K D. Smith, 687 ; II. 689 ; li. 695 ; JSTott's Lien Law, 50 ; hut see 3 All. 476. The existence of a contract between the owner and contractor, authorizing the performance of the work and the delivery of the materials, or, that the work was done and materials furnished, in pursuance of an employment by the owner, or by, or in accord ance with, his directions, or the directions of his agent, must also be shown on the trial. Laws of 1863, p. 859, § 6 ; ante, p. 613, note ; and see 1 E. L>. Smith, 722 ; 2 Id. 662. And this, too, whether the proceedings are instituted by a contractor, or em- ploye, or vendor of the contractor. II. Hid. And not only must the claimant show a contract between the owner and contractor, or an employment by the owner, or that the work was done by his directions or that of his agent ; but he must show that the labor was performed and the materials fur- nished in conformity with the tei-ms of such contract, or employ- ment, or 'direction. 1 E. D. Smith, 627; Id. 722; Id. 725 • la. 728; 2 Id. 662; Laws of 1863, p. 859, § 1 ; ante, p. 611, note. ' CH. XVI.] LIEN- LAW : NEW TOEK CITY. 645 It should also be shown that the defendant is the owner of the building upon which the Ken is claimed ; though in the Marine and District Courts, where the notice of lien is informally treated as the complaint, if there be in that an averment of ownership which is not denied by the defendant's answer, nor a recovery objected to for want of proof, the judgment will not be reversed, though no evidence of ownership was given on the trial. 1 M B. Smith, 722 ; NoU's Lien Law, 50. The claimant must show, also, before he will be entitled to recover, that a payment has become due, according to the terms of the contract with, or employment by, the owner. 1 E. D. Smith, 626 ; Id. 668 ; Id. 717 ; Id. 728 ; Id. 740 ; 4 Id. 721. And this proof must be given whether the proceeding is instituted by a contractor, or a sub-contractor, or other person dealing with the contractor (a). Id. ibid. " Is it necessary, then," says Ingraham, F. J., "that the sub-contractor or material-man should show that a payment has become due upon the contract before he can re- cover against the owner ? Or is it sufficient to show merely the existence of a contract between the parties ? If the action had been between the contractor and the owner upon the contract, the contractor, to make out a primM facie case against him, would be requu-ed to show the performance of work sufficient under the contract to entitle him to payment. The operation of the lien law is to transfer to the sub-contractor so much "of the contractor's claim against the owner as would be sufficient to pay the debt of the contractor to his sub-contractor. It would be but reasonable to require the same amount of proof to recover against the owner for the same debt, whether the suit is brought by one or the other claimant. It is said that this would be requiring the plaintiff to prove a negative. This is not so. It is an affirmative proposition, ifl) The statute does not in terms require this ; nor did the previous statute. The statute now gives a lien to any person who, as contractor, laborer, workman, mer- chant, or trader, in pursuance of, or in conformity -with the terms of any contract with, or employment by, the owner, or by or in accordance with the directions of the owner or his agent, shall perform any labor or furnish any materials. Laws of 1863, p. 859, § 1 ; crnle, p. 611, note. Under the previous statute, a lien was given to any person who, by virtue of any contract with the owner, or his agent, or any person who, in pursuance of an agreement with any such contractor, shaU, in conformity with the terms of such contract, perform any labor or furnish materials. Laws of 1851, p. 353, § L Vol. L— 45 646 LIEN LAW : NEW TOEK CITT. [CH. XVI. that there was a contract, and also that a payment has become due upon it." 1 E.D. Smith, 684 ; «, c. 8 Eow. 209. The same learned judge also remarks in Hawptman v. Halsey (1 E. D. Smith, 669), that "it rests with the plaintiff to make out a case to show that he is entitled to recover against the owner. To do this he must show the work done under the contract, for the con- tractor, and the performance on the part of the contractor, so as to entitle the latter to a payment under it." And see Id. Y22 ; and 12 Wend. 3Y3. But the claimant wiU not be required to prove that the con- tractor has not been paid ; and when he shows work done under the contract, and aU the days of payment past, the onun is upon the owner to prove actual payment to the contractor. "The plaintiff is not bound to negative a possible defense. It is enough that he shows a prima fa^e right to recover. The statute gives him the lien, and the right to institute proceedings to test its extent, and enforce it at any time after his work is done. If pay- ment to the original contractor is a good defense to the owner, he must set np such payment in his answer." 1 E. D. Smith, 631. per Woodruff, J. ; and see 1 Jlill, 27T, aff. 7 Id. 529. Where the claimant took the note of the contractor for the amount of his claim, and afterward indorsed and transferred it to a third person, who discounted it, and paid the amount of it to him ; and the indorsee subsequently recovered a judgment upon the note against the contractor, upon which execution was issued and returned unsatisfied ; it was held that the claimant could not recover without proof showing that he had, by payment to the indorsee, or otherwise, become reinvested with the title to the debt. 2 E. D. Smith, 621. And the mere production of the note at the trial, with an offer to give it up to be cancelled, is not suffi- ciQnt. Ih. 2. Wha,t may he shown in defense. The defenses which the owner has to the plaintiff's claim, are in general the same in effect as those which he may avail himself of in an ordinary action commenced for the recovery of the value of the work per- formed, or the materials furnished. Thus, he may introduce and prove any offsets which he may have to the plaintiff's claim. And where the proceeding is instituted by the contractor, he may avail himself of offsets arising out of CH. XVI.] LIEN LAW: NEW YORK CITY. 647 other matters than those connected with the contract {a). 8 How. 199 ; s.c.l E. D. Smith, 691. But the owner would not be permitted, in an ordinary action, commenced by the contractor to recover the amount due upon the contract, to show in bar of the action, that mechanics and others had filed notices of claims for labor performed and materials furnished at the request of the contractor. 2 Duer, 354. The remedy of the owner, in such case, is to institute a cross-action, making the persons claiming liens parties thereto ; or by a special application for leave to pay the amount due from him into court, to abide a final decision upon the claims, and for a stay of proceedings in the mean time. Ih. The owner may also show that the work was not done in con- formity with the original contract, and that the contract has not been performed, 1 E. D. Smith, 697 ; 2 Id. 693 ; and also that the contractor abandoned the work before any payments became due. 2 Id. 560 ; s. c. 1 Abb. 360 ; and see 1 E. D. Smith, 692 ; Id. 717. Though the fact that the work was not performed within the period prescribed by the written contract, will not bar the claimant from the benefits of the statute, where th e delay was caused or consented to by the owner. 4 Id. 724 ; and see Id. 729. And the owner may also recoup his damages for imperfections in the work (5). 1 E. D. Smith, 697 ; Id. 739. The owner is also entitled to show as a defense to the pro- ceeding, that there are liens upon the premises prior to that of the plaintiflf, exceeding in amount the sum due from the owner. 1 E. D. Smith, 647; Id. 664; Id. 666 ; 1 Code R., N. 8., 284. And if such prior liens are less in amount than the sum due from the owner, he is also entitled to have the amount of the same allowed to him (as sums to be first paid out of the fimd in his (a) Whether the owner may set off demands he has against the contractor not arising out of the contract, when the action is between the owner and a suh-con- tractor, or employe, or vendor of the contractor, qiusre? See 4 SiU, 193 ; s. c. in error, 1 Id. 525 ; 1 E. D. Smith, 741 ; Id. 692 ; Nott's Lien Law, 128. As the present statute authorizes a personal judgment against the owner to the extent of the amount due by him to his contractor {Laws of 1863, § 9; ante, p. 614, note), such set off would probably now be allowed. (6) If it was intended by the statute to prevent these defenses where the proceed- ings are instituted by a sub-contractor or other party dealing with the contractor, that intent should have been clearly and definitely expressed. But it has not been. See the statute, aTiM, p. 611, see. 1, twU. 648 LIEN LAW : NKW YOHK CITT. [CH. XVI. hands), before he can be required to pay anything to the plaintiff. 1 E. D. Smith, 673 ; Id. 704 ; and see Id. 647 ; Id. 664 ; Id. 666. The plaintiff being now required to make lien-holders parties to the action, may ia all cases contesl; the validity or amount of prior liens upon the premises. Id. ibid. ; Laws o/'1863,j?. 859, §§ 4, 7; ante, p. 612, note. In cases of successive hens by the contractor, sub-contractor, workman, person furnishing materials, and of a number of Hens in favor of different persons, their rights and priorities are directed by the statute to be determined as follows : The lien of the laborer, cartman, material-man, and sub-contractor shall be entitled to a priority over the contractor for the payments due for his services or materials. In case of several buildings done under one con- tract, in conflicting liens, each shall have priority on the par- ticular building where his labor is performed, or his materials used. Persons standing in equal degree as colaborers, or various persons furnishing materials, shall have priority according to the date of filing their liens. Where several lien notices are filed for the same demand, as in ease of a contractor, including claims for workmen to' whom he is indebted, and a lien by the workmen, the judgment shall provide for the proper payments, so that under the liens filed, double payment shall not be required ; but no payments voluntarily made shall impair the lien of any person, except the one to the person so paid. Laws of 1863, j>. 859, § 3 ; ante, p. 612, note. It is a defense, also, to the claimant's proceedings, that there was nothing due from the owner to the contractor at the time the notice of lien was tiled, or that nothing has become due subse- quently. 1 K D. Smith, 647 ; 4 Id. 721 ; 1 Sand. 8. C. E. 14. And so, payments made by the owner, in good faith, before the notice of lien is filed, are to be allowed to him. Id. ibid. ; and see 1 E. D. Smith, 718 ; Id. 789. So of credits given by the owner to the contractor, in pursuance of a mutual understanding between them, where the credit was given in good faith, and before the notice of lien was filed. Id. 692; and see ante, p. 647, note h. And the owner may, also, show in bar of the plaintiff's claim that a judgment of nonsuit, or judgment dismissing the plain- tifl"'s proceedings, or other judgment, has been rendered against the plaintiff in a former proceeding to enforce the same lien. 8 CH. XVI.] LIEN LAW : NEW YORK CITT. 649 How. 20T; s. c. 1 E. D. Smith, 682; Zaws (/1851, p. 953, sec. 9. He may show also that the plaintiff has net acquired a valid lien upon the premises ; as, that the notice of lien was not filed until more than three months after the work was done, or the materials furnished. Laws of 1863, j). 859, § 6 ; ante, p. 613, note; and see 3 E. D. Smith, 622 ; s. c. 3 All. 475. If the claimant has made the contractor a party defendant, the latter may set up a counter-claim against the plaintiff, and recover judgment for an excess. 6 All. 306 ; s. c. 4 E. D. Smith, 754. And in such case he may avail himself generally of the same defenses which would be available to him if he were sued for the same matter in an ordinary action. H. Witnesses, c&g.] The rules of the Code of Procedure in re- spect to witnesses, their competency and examination, and the examination of parties, apply to these proceedings. Code, §§ 889 to 399. Judgment.^ The statute, as we have seen, authorizes a lien to be created in favor of a contractor, laborer, workman, merchant, or trader, upon the house or building, and the appurtenances and lot on which the same stand, to the extent of the right, title, and interest of the owner, existing at the time the notice of lien •w?a filed. Laws of 1863, p. 859; ante, p. 611, note. And by subse- quent sections of the statute, the court is required to proceed without regard to matters of form, which shall be amendable at all times while the proceedings progress, without costs, and to render judgment according to the equity and justice of the claims of the respective parties. LI. § 5. And the court may deter- mine the rights of all parties, and the amounts due to each, and by whom to be paid ; and if there are conflicting claims, or liens, such judgment shall be made thereon as to the rights and equities of the several parties, among themselves, and as against any owner, as may be just. LI. § 7. "Where several lien notices are filed for the same demand, as in case of a contractor, including claims for workmen to whom he is indebted, and a lien by the workinen, the judgment must provide for the proper payments, so that under the liens filed, double payment shall not be required. LI. § 3. The statute further provides that the contractor shall be per- 650 LIEN LAW : NEW YOKE CITY. [CH. XVI. Bonally liable to the lien or for the whole amount of his indebted- ness, and the owner to the extent of the amount due by him to his contractor. Ih. § 9. When the proceeding, therefore, is instituted by a sub-con- tractor, or employe, or vendor of the contractor, and the con- tractor is made a party to the proceedings, judgment may be rendered against him for the amount which shall be found owing by him, in addition to the judgment against the owner ; and the court may award costs against such of the parties as shall be just. See Laws of 1863, ante, p. 614, note, § 9; 1855, jp. 760, § 5; 6 Abh. 306 ; s. c. 4 E. D. Smith, 754. The primary object of the proceeding is the foreclosure of a lien, as such. 1 E. D. Smith, 626 ; Id. 661 ; Id. 740 ; 2 Id. 596 ; 3 Id. 637, 642 ; s. c. 4 Abh. 205 ; lb. 208, note. And in administering the statute, the court acts as a court of equity, and can adapt the judgment or decree to the special circumstances of the case. Id. ibid. Laws of 1%QZ, p. 859, § 5 ; ante, p. 512, note. Where both the contractor and owner are joined as defen- dants, judgment may be awarded against the former, though the plaintiff may fail as to the latter ; so held where the plaintiff, who was an employe and vendor of the contractor, performed labor and furnished materials, in pursuance of his agreement with the contractor, but which were not in conformity with the contract with the owner. 2 E. D. Smith, 693. And judgment, in that case, was awarded in favor of the ownei*s for their costs of suit, and in favor of the plaintiff, against the contractor, for the amount claimed, with interest, lb. ; and see 6 Ahb. 306 ; s. c. 4 E. D. Smith, 754. The judgment must be special, whether the claim arises upon a contract between the owner and the contractor, or between the latter and a sub-contractor, or other party having the lien. The contractor is made by the statute personally liable to the lienor for the whole amount of his indebtedness, and the owner to the extent of the amount due by him to his contractor. Laws oflSea,^. 859, § 9 ; ante, p. 614, note; though formerly no judg- ment could be awarded against thB owner personally where he was not personally liable by contract to the plaintiff. 2 E. B. Smith, 595 ; Id. 664; 4 Id. 721 ; lb. 729 ; lb. 539; 6 Ahb. 306. The judgment against the owner is a judgment against his right, title and interest in the premises, at the time the notice CH. XVI.] LIEN LAW : NEW TOEK CITT. 651 of lien was filed; thougli a decree over against him maybe made to cover a deficiency, in case there should be any. 2 E. D. STnith, 695 ; Id. 664; 6 Abb. 306, s. c. 4 E. D. Smith, T54 ; 2 Id. 657; Laws of 1863, p. 859, § 9 ; ante, p. 614, note. The proceeding to enforce a lien, being analogous to a pro- ceeding to foreclose a mortgage, the judgment, in form, should direct a sale of the owner's interest in the specific premises npon which the lien exists, to the extent of his right, title, and interest at the time the notice of lien was filed, and should provide that the proceeds be applied to the payment of the costs, and' the amount found due, with interest ; that the residue of such pro- ceeds, if any, be paid to the county clerk, to abide the further order of the court ; and that in case of a deficiency, the sheriff certify the amount in his report of sale ; and that the claimant have execution therefor. 2 E. D. Smith, 657 ; and see Id. 664 ; Id. 673 ; 4 AU. 205, 208, note ; 2 Dusr, 613 ; laws of 1863, p. 859, § 9 ; ante, p. 614, note. And if the claim is in favor of a sub-contractor, or other party dealing with the contractor, and the contractor is a party to the action, the judgment should direct a sale of the right, title, and interest of the owner in the premises on the day the lien was filed, and that the proceeds to the extent of the Hen, or the amount due from the owner, be applied to the satisfaction of the plaiutift^s claim and costs, and if there is a deficiency, that the plaintiff have execution against the contractor for the same. See Id. ibid; 2 E. D. Smith, 644 ; and see 6 Abb. 306 ; s. c. 4 E. D. Smith, 794. The plaintiflPs judgment will be limited to the amount claimed by him in his notice of lien, with interest and costs. 1 E. D. Smith, 671. "Where liens exist against several parcels of land which have passed to several owners, the court may apportion the burden among the different grantees, accordiug to the equity of the case, and consistent with a due enforcement of the claim. lb. ; and see Laws of 1863, i?. 859, §§ 6, 7 ; ante, p. 613, note. Effect of judgment and sale.\ If judgment is obtained by the claimant against the owner, and is paid by the latter, such payment will operate, as a payment to the amount thereof, to the contractor, see Laws of 1855, p. 760, § 4; and a judgmen* 652 LIEN LAW : NEW YOKE CITY. [CH. XVI. and sale of the premises will cut off aU subsequent liens. 16 Abb. 371. Nor will tie operation of such sale ' be affected by the foreclosure of a prior mortgage intermediate the filing of the notice of lien and the sale, so as to deprive the lien-holder of any surplus moneys. Tb. If a sale of the owner's interest in the premises takes place under the judgment, the whole of such interest will pass thereby, without any right of redemption to such owner. 4 Abb. 205 ; s. c. 3 E. D. Smith, 642. If judgment, however, is rendered against the claimant, the effect of it will be, to discharge the lien ; and this will be so whether the judgment is a judgment of nonsuit, or dismissal of the plaintiff's proceedings, or other judgment. 1 Id. 682 ; s. c. 8 Sow. 207. The failure, however, to recover against the own- er, will not deprive the claimant of his demand against the con- tractor. Ih. The judgment will relate back to, and take effect as an in- cumbrance, at the time when the Hen was filed. 4 E. D. Smith, 736 ; 20 mw York, 247. Maecution.'] The statute provides, in effect, that execution may issue to enforce the judgment, in the same manner as upon judgments in ordinary actions. It directs the judgment to be enforced by an execution on which the property on which the lien is adjudged, may be sold, and the proceeds distributed as ordered by the judgment ; that personal liabilities may be enforced by execution against the property of any party against whom a personal judgment shall have been rendered ; and that the con- tractor shall be personally liable to the lienor for the whole amount of his indebtedness, and the owner to the extent of the amount due by him to his contractor. Laws of 1863, p. 859, § 9 ; ante, p. 614, note; and see Laws ofl2>^l,p. 955, §§ 7, 8 ; 3 K D. Smith, 637 ; «. c. 4 Abb. 205. It is settled, howeyer, by the practice of the court, and the recent statute has not changed it, that the execution, like the judgment, should be special, and direct the sale of the owner's interest in the land and premises upon which the lien exists, at the time the notice of Hen was filed ; and that the proceeds of the sale be applied to the payment of the amount found to be due to the claimant, with interest, and of the costs of the pro- CH. XVI.] LIEN LAW : NEW YORK CITT. 653 ceedings, and that the residue of such proceeds, if any, be paid to the clerk of the county, to abide the further order of the court, and that in case of a deficiency, the sheriff certify the amount in his report of sale. 2 E. D. Smith, 673 ; 1 Id. 626 ; and see ante, p. 649, "Judgment." Laws of 1863,^. 859, §§ 6, 9, 10; ante, p. 613, note. And it would be irregular for the ezecution to direct the sale of ihe property, instead of the owner's interest ihQxem. 2 E. D. Smith, 673 ; Id. 626 ; and 4 Ahh. 205, 208, note; s. c. 3 E. D. Smith, 637. If the judgment is rendered by the Marine Court, or by a District Court, a transcript of such judgment should be obtained, and filed with the county clerk, who will thereupon issue an execution, for the enforcement of the same. See 2 E. D. Smith, 673 ; Code of Pro. §§ 68, 63, 64, sub. 13. The transcript and docket should be special, showing that the judgment directed the sale of the owner's interest in the premi- ses, existing at the time the notice of lien was filed, &c. 2 E. B. Smith, 673. Sale of the premises, &g.~\ The sheriff is only authorized to sell the owner's interest in the premises ; and where he sold the property described, and not the owner's interest, a resale of the premises was ordered. 4 Abb. 208, note ; and see 11. 205 ; s. c. 3 E. D. Smith, 637, 642. It is not necessary to seU subject to mortgages, or other in- cumbrances. 3 E. D. Smith, 642. But the statute, now requiring lien-holders and incumbrancers to be made parties to the action, a sale under the statute, where the proceedings have been regular, would no doubt divest the interest of such incumbrancers, as well as that of the owner. See Laws of 1863, p. 859, §§ 3, 4, 5, 7 ; ante, p. 612. Redemption from sale on executio?!.] The owner haa no right of redemption from the sale under the execution in these proceedings ; and the provisions of the Revised Statutes (2 Hev. Stat. 370, post, chap, xxvm)., allowing the redemption of real estate sold on execution, do not apply to sales under this statute. 4 Abb. 205 ; s. p. 3 E. D. Smith, 637; Id. 642. The sale of the premises on the foreclosm-e of the lien, is an 654 LIEN LAW : NEW YORK CITY. [CH. XVI. absolute sale, as in case of the foreclosure of a mortgage, of all the interest of the owner. Id. ibid. Costs of the action.] The proceeding to foreclose a lien is an equitable proceeding, and the costs therein may be allowed or not, in the discretion of the court. Code, § 306. When allowed, they are the same as in an ordinary action, in which judgment upon failure to answer, can only be taken on application to the court. In reference to costs in ordinary actions, see Code of Pro. §§ 304 to 309 (a). Ifo costs are recoverable until the service of the notice to foreclose the lien. 1 Code E., JST. S. 230. An extra allowance will not be granted in these proceedings, where the plaintiff's damages have been assessed by a sheriff's jury after the defendant's default. Such assessment is not a "trial," within the meaning of § 308 of the Code. 4 Abb. 262 ; s. c. 3 ^. D. Smith, 648. J!for do the proceedings to foreclose a lien under the statute constitute an action " for the foreclosure of a mortgage," or " proceedings to compel the determination of claims to real property," within the meaning of that section. Id. ibid. In respect to motions in these proceedings, the costs are allowed, in the discretion of the court or judge, the same as in actions. See Voorhies' Code of Procedure, sec. 315, and note. Where the owner moves to bring the contractor in as a party to the proceedings, it seems that in granting the order the court will not charge the plaintiff with costs. 1 ^. D. /Smith, 719. The owner, it seems, where the proceeding is instituted by a sub-contractor, or other party dealing with the contractor, will not be compelled to pay costs, when it appears that the whole sum due from him to the contractor is insufficient for that pur- pose ; though otherwise, perhaps, in respect to costs made or in- curred in consequence of improper litigation produced by the owner himself. See 1 K D. Smith, 626; 2 Id. 536, and note; Id. 644 ; but see JVott's Lien Law, 53 to 58. " The court have repeatedly intimated, that this proceeding is an equitable pro- (a) See, however, in respect to costs in the Marine Court, and the District Courts, Laws of im, p. 1166; 1857, voL L p. 724, §§ 67, . § 19. And the justice before whom, or the judge of the court in which, the action is commenced, upon the request of the owner or his agent, may grant a stay of pro- ceedings sufficient to enable the owner to give such notice, and call in such claims. Ih. See further under this head, ante, p. 659, "Extent of owner's Liability." And in respect to the defenses of which the owner may avail himself under the New York law, see ante, p. 646. Witnesses, die.] The rules of the Code of Procedure in respect to witnesses, their competency and examination, and the examination of parties, apply to these proceedings. Code, §§ 389 to 399. Judgment.'] The statute does not point out the form or ex- tent of the judgment to be entered upon the" action to enforce the lien, except that judgment may be rendered the same as in other actions arising on money demands upon contracts. Seas. 11 and 14, supra. Under a former statute relating to the city and county of New York, which assumed, somewhat, to direct the form of the judgment, it was settled that the judgment must be special, and must direct a sale of the owner's interest in the specific premises upon which the lien exists, &c., substantially Hke judgments upon mortgage foreclosures. See ante, p. 649. CH. XVI.] LIEN LAW : GENERAL ACT. 671 It may well be doubted, however, whether, under the statute here considered, anything more than a general judgment against the owner for the amount claimed, is intended. See Laws of 1854, p. 1087, §§ 6, 11, and 14. The execution which is issued upon tne judgment is special — the statute requiring it to direct the officer to sell the right, title, and interest which the owner had in the premises at the time the notice of lien was filed (§§ 11 and 14, swpra) ; and thus, the execution seems fully to answer the purpose of a special judgment. Besides, the judgment, when docketed in the clerk's office of a county, is, by the statute, gen- eral in its operation as a lien upon the real property of the owner situated within that county. li. §§ 17 and 20. If judgment is rendered against the claimant, the clerk is re- quired to enter the word " discharged," under the last head in the docket. lb. § 17. In respect to the judgment under the New York statute, see ante, p. 649 ; and see as to the efiect of a judgment under that law, ante, p. 651. For forms of judgment, see Appendix, Nos. 341 and 343. Transcript of judgment, c&c] If judgment is rendered in the proceedings, and docketed with the county clerk, within a year after the notice of hen is filed, it is made, by the statute, a lien npon the real property of the person against whom it is ob- tained, to the extent that other judgments are now made a lien thereon. Zaws of 1854, p. 1091, § 20. And a transcript of every judgment rendered under the stat- ute, headed " Lien Docket," is required to be furnished by the clerk of the county where rendered and docketed, to the success- ful party, who may file the same with the county clerk of any other county ; and the same shall thereafter be a lien on the real property in the county where the same is filed and docketed, of every person against whom the same is rendered, in hke manner, and to the same extent, as in other actions for the recovery of money arising on contract. lb. § 17. Executions.] It is provided by the statute, that upon judg- ment being rendered in favor of the claimant, an execution for the collection and enforcement thereof may issue, in the same 672 LIEN LAW : GENERAL ACT. [CH. XVI." manner as executions upon other judgments in actions arising on contract for the recovery of money only, except that the execu tion shall direct the officer to sell the right, title, and interest which the owner had in the premises at the time of filing the notice of Hen (a). Sees. 11 and 14, supra. For form, see Ap- pendix, No. 344. And it would be irregular for the execution to direct the sale of the property instead of the owner's interest therein. Ih. / and see i Abb. 205, 208, note; a. c. 3 E. D. Smith, 637; Id. 642. The statute is silent in respect to the enforcement of the judg- ment, where it has been docketed in the clerk's office of a county 80 as to make' it a Ken upon other real estate than that upon which the Hen was first obtained. In such case, an execution in the usual form, against the real property of the defendant, situ- ated in the county, and owned by him at the time the judg- ment was docketed, would no doubt be held to be proper (5). For form, see Appendix, No. 345. If judgment should be rendered against the claimant, execu- tion for the owner's costs and disbursements issues, the same as in judgments in other actions. Sees. 11 and 14, supra. Costs and disiursements.'] The statute directs costs and dis- bursements to be aUowed to either party, upon the principles, and by the same rules in such proceedings, as they are now aUowed by law in actions arising on contract ; and they shall be included in the judgment recovered in the same. Zaws o/'1854, p. 1090, § 16. In respect to costs in actions, see Code of Pro. §§ 304 to 309. The costs are not recoverable until the service of the notice to foreclose the lien. 1 Code R., JF. S. 230. Whenever a judgment is rendered against the owner, and in favor of any laborer, or person furnishing materials, and the (a) Under the New York law, as we have seen, where the premises upon which the lien was obtained are insufficient to satisfy it, the plaintiff is permitted to have execution against the owner, generally, for the deficiency. See ante, p. 652. The same relief would no doubt be afforded, in some form, under the statute here con- sidered, in a case where the owner was personally liable for the debt, though the statute does not give any directions on the subject. (i) See ante, p. 659 ; and see also note a, above. CH. XVI.J LIEN LAW : GENERAL ACT. 673 owner has funds in his possession due to the contractor, the costs of the proceeding are to be deducted from such funds, unless otherwise directed by the court in which the action is brought. Laws 0/1854,^. 1090, § 15. In respect to costs under the New York law, see ante, p. 654. Appeals.] After judgment has been rendered in pursuance of the statute, either party may appeal therefrom in the same manner, and within the time, appeals may now be taken in actions for the recovery of money arising on contract. Jh. § 21 ; Code of Pro. §§ 323 to 348. And the appeal is thereafter to be heard, governed, and de- termined upon the same principles and by the same rules as appeals in actions, with the like costs and disbursements; and the judgment thereon is to be enforced and collected in the same manner as other judgments on appeals. Sec. 21, supra. III. PKOOEEDINaS IK JUSTICES' COTJBTS TO ENFOKOE LeENS. Action to ie commenced.'], "We have seen that justices' courts of the town where the premises are situated, have jurisdiction in these proceedings, where the amount of the lien is one hun- dred dollars or under. Zaws of 1854:, p. 1088, § 8. The action is commenced by the service of a notice upon the owner, or his agent, requiring the owner to appear before a jus- tice of the town in which the property is situated. Ih. The notice must contain a statement of the facts constituting the claim, and the amount thereof; and must require the owner to appear before the justice in person or by attorney, at a time cer- tain, not less than thirty days after such service, and answer the same, or in default thereof, that the claimant will take judgment against the owner for the amount so claimed to be due, with in- terest thereon and costs. lb. At the time of the service of the notice, a bill of particulars of the amount claimed to be due from the owner, his contractor, or sub-contractor, verified by the oath of the claimant, or his attorney, to the effect that the same is true, must be served upon the owner or his agent. Ih. §. 10. For forms of notice and bill of particulars, see Appendix, Nos. 346, 347, 348. 674: LIEN LAW : GENEEAL ACT. [CB. ZVI. Service of notice and Mil of particulars J] The notice and bill of particulars may be served upon the owner, or his agent, any- where within the State; and they must be served personally, unless by reason of absence from the State, or being concealed therein, personal service cannot be made; in which case the service may be made by leaving a copy of the notice and bill of particulars at the owner's last place of residence, and publishing a copy of the notice for three weeks successively in a newspaper published in the county where the property is situated. Laws of 1854, p. 1088, §§ 9, 10. The bill of particulars need not be published with the notice. Ih. The statute does not specify the number of times per week the notice must be published ; though a single publication each week would probably be sufficient. If the service of the notice is by publication, the thirty days in which the owner is required to appear and answer, will com- mence to run from the date of the first publication of the notice. Sec. 9, supra. For forms of affidavit of service, personal as well as by publication, see Appendix, No. 349. Commencement of action to he noted in lien docket^ To pre- serve the rights of the plaintiff, and prevent the equities of third parties arising, a proper entry should be made in the lien docket of the town clerk, showing the commencement of an action to enforce the lien. Proceedings, if owner does not appear.] In case the owner does not appear, as required by the notice served, then, on filing with the justice an affidavit of the service of the notice and bill of particulars, and the failure of the owner to appear as therein required, the justice may assess the amount of the plaintifi's claim. Sec. 11, svpra. For form of affidavit, see Appendix No. 350. ' Upon such assessment, judgment shall be entered, establishing the amount of the lien with costs ; and execution shall thereupon issue for the collection and enforcement of the claim so adjudi- cated and established, in the same manner as executions upon other judgments in justices' courts, in actions arising on contract, for the recovery of money only, except that the execution shall direct the officer to sell the right, title, and interest, which the CH. XVI.] LIEN LAW : GENERAL ACT. 675 owner liad in the premises, at tlie time of filing the notice pre- scribed by the statute. Sec. 11, swpra. See farther on this subject, ante, p. 667. What is there stated in respect to the practice in the Supreme Court, and in the county courts, is applicable, also, to the proceedings in jus tices' courts. Issue and trial in justices^ courts.} On the appearance of both parties before the justice, the owner is required to put in an answer, in writing, duly verified, with a bill of particulars of his set-off, if any, annexed. Sec. 12, supra. The statute does not specify the person who may make the verification ; but, like that in the Supreme Court and the county court, it may, no doubt, be made by the owner or his agent, or contractor, and should be to the effect that the answer is in all respects true. See Ih. § 7. For form of answer, &c., see Appendix, ~Eo. 351. The issue thus formed by the service of the notice and bill ot particulars on the part of the claimant, and the answer and bill of particulars of set-off on the part of the owner, is to be tried and governed by the same rules as other issues in justices' courts; and the judgment therein shall be enforced, if for the claimant, as above provided in respect to the judgment entered upon the owner's failure to appear, — and if for the owner, as in other actions arising on contract. Sec. 12, supra. In respect to the proceedings upon the trial, and the evi- dence to be given by the claimant to establish his claim, as well as the proceedings of the owner in his defence. See ante, p. 669. Costs in justices' courts.'] The costs and disbursements in justices' courts are to be allowed to either party the same as in actions; and are to be included in the judgment recovered. Sec. 16, supra. In respect to costs in those courts, see 2 Rev. Stat. 247; Ih. 265 ; laws of 1857, vol. 2, p. 723 ; Fub. Acts, p. 49 ; Laws of 1860, p. 983; 1866,^. 1481 ; 1869, ch. 820. If the notice was served upon the owner by publication, the expenses incurred for that purpose may be allowed, and added to the amount of costs allowed in those courts. Sec. 16, supra. "WTienever a judgment is rendered against the owner, and in favor of any laborer, or person furnishing materials, aaid the owner has funds in his possession due to the contractor, the costs 676 LIEN LAW : GENEEAL ACT. [CH. XTT. of the proceeding are to be deducted from such funds, unless otherwise directed by the court. lb. § 15. Appeals from Judgments therein.'] Either party may appea. from the judgment rendered by the justice, the same, ia aL respects, as in ordinary actions. And the appeal is to be heard, governed, and determined upon the same principles, and by the same rules, and with like costs and disbursements, as appeals in other actions, and the judgment thereon enforced in the same manner as judgments on appeals are now enforced and collected. lb. § 21. IV. MlBCELLAHEOUS PbOCEEDINGS. The owner may require claims to be presented?^ The statute provides, that the owner or his agent, may, at any time, give public notice, in the sam.e manner as notice is required to be given for the sale of real estate by virtue of an execution (a), to all persons having claims under any of the provisions of the act, against the building, land, or appurtenances in question, at tlje time of the date of publishing the notice, to present the same, with vouchers in support thereof, to any justice of the peace in the town where the building is situated, on or before a certain hour or day, to be specified in the notice, and to be at least six weeks from the first publication. Laws of 1854:, p. 1091, § 18. For form, see Appendix, No. 352. In case of the failure of the persons having such claims to present the same, as required by the notice so given, each and every person so failing will forever lose the benefit of his lien. Sec. 18, supra. When the proceeding is instituted by a contractor, the statute authorizes the owner or his agent to give the notice above pre- scribed, and to present, as a set-off, all claims and liens thereupon (a) The notice, therefore, must be publicly advertised for six weeks successively, as follows : 1. It must be fastened up in three public places in the town where the premises are situated; ^ 2. A copy thereof must be printed once in each week, in a newspaper of such county, if there be one j 3. If there be no newspaper printed in the county, then the notice must be pub- lished in the State paper once in each week. 2 i?ev. Siai. 363, «ec 34. CH. XVI.] LIEN LAW : GENERAL ACT. 677 presented and established. Tb. % 19. And the justice before whom, or a judge of the court in which the proceedings are commenced, may, upon the request of the owner or his agent, grant a stay of proceedings suflBcient to enable the owner to give such notice and call in all such claims ; which claims, if estab- lished and allowed by the justice, or court, shall be a set-off to such contractor's claim, to the amount so allowed. lb. The owner may require liens to he enforced.'] The owner, or his agent or attorney, may serve upon the claimant, a notice requiring him to commence an action for the enforcement of his lien, within twenty days after the service of such notice. For form, see Ajppendix, No. 353. If such notice is served, and the action is not commenced within the time therein required, upon filing with the county clerk an affidavit of such service, and the omission to commence such action, the lien will be discharged. Laws of 1854, j>. 1092, § 23, sub. 4. And see note a, oujp. 678, post. For form, see Appendix, No. 354. The like notice may also be served by the contractor of the owner, or a sub-contractor, and with the like effect in all respects. Sec. 23, supra. How long lien to continue.] It is provided that every lien created under the provisions of the statute, shall continue until the expiration of one year, unless sooner discharged by the court, or some legal act of the claimant in the proceedings ; but when a judgment is rendered therein and docketed with the county clerk, within the year, it shall be a lien upon the real property of the person against whom it is obtained, to the extent that other judgments are now made a lien thereon. Laws of 1854:, p. 1086, § 20. Under a similar statutory provision, it has been held that the lien expires at the expiration of one year from the commence- ment thereof; and that neither the pendency of an action will prolong it, nor a judgment subsequently obtained will relate back to it. 3 Corns. 305, 308, 309, per Ruggles, J. In respect, however, to the statute here considered, although the question is not free from difficulty, yet the better opinion is, taking all the provisions of the statute together, that the lien is continued indefinitely, if, within the year, a proper action is Vol. 1.-^7 678 LIEN LAW : GENERAL ACT. [CH. XVI. brought to enforce it ; and that the intention of the section was, rather, to indicate the time within which the action to enforce the lien must be commenced. See §§ 4, 6, 11, 14 and 20, supra ; and see Notth Lien Law, 210, 211 ; and see under the New York law, ante,p: 630. Order in which liens are to he paid.'] The liens created and established by virtue of the provisions of the act, are to be paid and settled according to the priority of the notice of lien filed with the clerk, (a) Laws of 1854, p. 1092, § 22. Row liens discharged.'] The statute authorizes liens to be discharged as follows: 1. By filing with the town clerk {a) a certificate of the claimant, or his successors in interest, acknowledged or proved in the same manner as a conveyance of real estate, stating that the lien has been paid or discharged (for forms, see Appendix, No. 355) ; or, 2. By depositing with the justice, or clerk of the courts, a sum of money equal to double the amount claimed; which money shall be thereupon held subject to the determination of the lien ; or, 3. By an entry of the town clerk, made in the book of liens, that the proceedings on the part of the claimant have been dis- missed by the court in which the action to enforce the lien is brought, or a judgment rendered against the claimant ; or, 4. By an affidavit of the service of a notice from the owner, or his agent, attorney, contractor, or sub-contractor, to the claim- ant, requiring such claimant to commence an action for the enforcement of his lien within twenty days after the service of said notice ; and the failure of the claimant to commence an action as aforesaid. Laws of 1864:, p. 1092, § 23. The lien will also be discharged by the failure of the claimant to commence an action for the enforcement thereof, within one year from the time the notice of lien was filed. /5. § 20. (a) Under the recent amendment of the statute, as wo haye seen [arde, p. 658, 661), the notice of lien is now required to be filed in the office of the county clerk of the county in which the property is situated, and not with the town clerk, as for- merly. This would seem to render necessary that the certificate for the discharge of the lien should be filed with the clerk of the county. CH, XYI."| LIEN LAW: SHIPS AND VESSELa 679 SECTIOIf ni. PROCEEDINGS FOR THE COLLECTION OF DEMANDS AGAINST SHIPS AND VESSELS, (a) The first statute authorizing liens upon vessels was passed in 1798, and was entitled " An act authorizing the arrest of ships or vessels for debts contracted by the master, owner, or consignee, for and on account of such ships or vessels, in this State." 1 H. L. of 1813, p. 130. This act applied only to vessels of non-resi- dents. In 1817, it was amended by extending it to vessels of residents. Laws of 1817, ch, 60. In 1830, the statute was revised, 2 Rev. Stat. 493 ; and subsequently by successive laws which may be found collected in 3 Rev. Stat., 5th ed. 795, was amended ; and was again further amended by the Zaw^ of 1859, j>. 228 ; Zaws of 1860,^. 347 ; Id. 900. But by the laws of 1862 (j>. 956, § 34), all the provisions of the Revised Statutes, and all acts amendatory of the same, and also the act of 1831 (Zaws of 1831,^. 421), extending the provisions of the statute to cases of collision, &c., were repealed, and an entirely new statute was substituted in their place; the provisions of which, as well as the decisions of the courts under the former statute, so far as the same are applicable to the new statute, may be found embodied in this chapter (a). The lien cannot exist, even by the agreement of the parties, except in the manner and upon the conditions provided for in the statute. 3 Corns. 438. The proceeding under the statute, prior to the giving of the bond is in rem / but upon the discharge of the vessel, the pro- ceeding ia in perso7iain ; so held under the act of 1817, which was substantially like the present statute. 2 Wend. 303 (a) The act of 1862, which is the only statute authorizing proceedings under this section, has recently been declared invalid by the Court of Appeals, as being in conflict with the Constitution of the United States, and the acts of Congress, passed in pursuance thereof. In the matter of Bird, against the steamboat Joscphin* in Court of Appeals, June, 1868. 680 LIEN LAW : SHIPS AND VESSELS. [CH. XVI I. PnocEEDmos to obeate a Libs. In what cases a lien may he created^ The statute provides (a) that whenever a debt amounting to fifty dollars or upward, as to a sea-going or ocean-bound vessel, or amounting to fifteen dollars or upward, as to any other vessel, eliall be contracted by the master, owner, charterer, bi^lder, or consignee, of any ship or /essel, or the agent of either of them within this State, for either of the following purposes : 1. On account of work done, or materials or other articles tiirnished, in this State, for or toward the building, repairing, fitting, famishing, or equipping such ship or vessel ; 2. For such provisions and stores furnished within this State as may be fit and proper for the use of such vessel at the time when the same were furnished ; 3. On account of the wharfage and expenses of keeping such vessel in port, including the expense incurred in employing per- sons to watch her ; 4. On account of loading or unloading, or for advances made for the purpose of procuring necessaries for such ship or vessel, or for the insurance thereof ; 5. Or whenever a debt amounting to twenty-five dollars or upward shall be contracted as aforesaid, within this State, on account of the towing or piloting such vessel, or on account of the insurance, or premiums of insurance, of or on such vessel or her freight; Such debt shall be a lien upon such vessel, her tackle, apparel, (a) Laws of 1862, jo. 956. The section of tho Revised Statutes corresponding with this section, and for which this section was substituted, is as follows : When- ever a debt, amounting to fifty dollars or upward, shall be contracted by the master, owner, agent, or consignee of any ship or vessel, within this State, for either of the following purposes : 1. On account of any work done, or materials or articles furnished, in this State, for or toward the building, repairing, fitting, furnishing, or equipping such ship or vessel ; 2. For such provisions and stores furnished within this State as may be fit and proper for the use of such vessel, at the time when the same were furnished; 3. On account of the wharfage and the expenses of keeping such vessel in port, including the expense incurred in employing persons to watch her. Such debt shall be a lien upon such ship or vessel, her tackle, apparel, and furniture ; and shall be preferred to all other liens thereon, except mariners' wages. 2 ife». SiaX. 493, sea. 1. CH. XVI.] LIEN LAW : SHIPS AND VESSELS. 681 and furniture, and shall be preferred to all other liens thoreoUj except mariners' wages. Laws of 1862,^. 956, § 1. The statute further provides, that whenever any ship or ves- sel shall have been run down or afoul of by any other ship or vessel, through the negligence or willful misconduct of those navi- gating such other ship or vessel, and shall thereby have sustained damage to the extent of fifty dollars, the owner of the ship or vessel so sustaining damage shall have a lien upon the ship or vessel causing such damage in manner aforesaid, her tackle, ap- parel, and. furniture, to the extent of such damage. II. § 33. In respect to the description of vessels intended by the stat- ute, it was held under the Revised. Statutes that proceedings were not authorized against a ferry-boat used for crossing the river from New York to New Jersey, 17 Johns. 54 ; nor against a canal-boat navigating the canal between Albany and Troy, 5 Hill, 34; nor against small, open, undecked boats, employed within a port, and not performing voyages coastwise from State to State, or from one port to another, 5 Wend. 564 ; nor against any ship or vessel, except such as navigate the ocean, and such as are required to have a coasting license under the laws of the United States. 5 Sill, 34 ; and see 1 Wend. 557 ; 17 Johns. 54 ; 3 Seld. 508 ; affirming 3 Sand. S. C. R. 572. But under the substituted act of 1862, as we have seen {ante, p. 680), a lien is given against a sea-going or ocean-bound vessel where the claim amounts to fifty dollars or upward, and against any other vessel where the claim amounts to fifteen dollars or upward. And this act has been held to apply to canal boats. 30 Sow. 398. " When a legislature, in its enactments, distin- guishes between sea-going and other vessels, the latter clause should be received in its largest sense, and be held to include all craft used in navigating any of the waters or canals of the State." Ih. 400, per James, J. A part-owner of a ship furnishing supplies for it, does not thereby acquire a lien upon it, which can be enforced under the statute. 6 Bosw. 648. Nor does one acquire a lien who acta as agent for the owners in purchasing supplies, though he pledge his own credit for the articles furnished. 5 Wend. 510, 513. And where the party furnishing materials, was building the vessel for himself, and during the progress of the work, contracted to finish and deliver it to the defendant, for a stipulated price, the 682 LIEN LAW : SHIPS AND VESSELS. [CH. XVI. principal part of wliicli was paid ; it was held that he was not entitled to a lien for the amount remaining due, on the ground that, imtil the vessel was finished and delivered, the plaintiff was himself the owner of it. Van Dusen v. Howe, Supreme Court, circuit, October, 1864, ^e/- Davis, J. It was held under the Revised Statutes that a lien could not be acquired for labor and supplies furnished under an agreement with the contractor for building the vessel. 20 Wend. 181. Though if the vessel was built under a contract to build and deliver at a future day, it was held that in such case a lien could be acquired, the builder, until the completion of the contract, being regarded as the owner of the vessel. 20 N. York, 181 ; affirming 25 Barh. 26 ; and see 1 Kern. 35. This distinction, however, does not now exist, since, under the present statute, the lien can be acquired for materials furnished, &c., under a con- tract with the builder, as well as with the owner, of a vessel. Imws of 1862,^. 956, § 1, supra. To give effect to the lien, it is not necessary that the vessel shall be completely finished and equipped ; but the lien attaches as soon as the structure, although still on the stocks, assumes the form or shape of a vessel. 5 Sand. 342. Nor is the lien of the material-man affected by the fact that he did not rely exclusively upon the lien, but looked also to the personal credit of the builder or owner, and considered him as his debtor. Ih. To create the lien, the positive application of the materials to the intended use must be shown ; and it is not sufficient to prove that they were ordered for a vessel which the purchaser was then building, and were furnished upon, and pursuant to, such order, and were sent to the yard where that and other vessels were being built. 5 Sand. 343 ; 2 JSosw. 506. The theory of the lien rests upon the basis that the materials have entered into and contributed to the production or equipment of the thing upon which the lien is imposed. And where it appeared that all the materials, in respect to the cost of which the lien is claimed, were not applied to the building of the vessel, it was held that the burden of proving what portion of them was so applied rested upon the material-man. Id. ibid. The debt is not contracted within the statute so as to give the creditor a lien, until the goods are actually delivered or furnished. An agreement to deliver, without actual performance, is not CH. XVI.] LIEN LAW : SHIPS AND VESSELS. 683 sufficient. 3 Corns. 438. Nor will tlie lien exist for materials furnished, unless the contract was made and the materials were famished within this State. 30 JImo. 184. The statutory remedy may, by the action of the creditor, be suspended, or waived ; as, where he gives a credit extending the time for the payment of the goods beyond twelve days after the departure of the vessel from the port where she was, when the supplies were furnished. 3 Corns. 438. And this, too, it seems, although the parties agree that the lien may continue and attach at a future day. lb. The lien given by the statute in cases of collision, is only for the actual damages sustained by the injured vessel ; that is, to the amount necessary to repair and put her in as good condition as when the accident happened. And the owner cannot recover for his loss of earnings or other like damages consequent upon the collision. 4 Sand. S. C. 493 ; 13 Wend. 601 ; lb. 390. Nor can the owner recover as damages, the probable loss of profits which he might have realized from a return trip from a place whither his boat was bound when injured by the collision. 8 M D. Smith, 144. But the expense of towing the vessel to a place of repair, and wharfage, while repairing, are proper items of damage. So, also, interest on the amount of the damages from the time of the injury. 4 Sand. S. C. 493. Extent of the lien, and when it ceases.] The statute provides that the debt shall cease to be a lien at the expiration of six months after the debt was contracted, unless at the time when said six months shall expire, such ship or vessel shall be absent from the port at which such debt was contracted, in which case the said lien shall continue, until the expiration of ten days after such ship or vessel shall next return to said port ; and in all cases, such debt shall cease to be a Ken upon the ship or vessel, whenever such ship or vessel shall leave the port at which such debt was contracted, unless the person having such lien shall, within twelve days after such departure, cause to be drawn up and filed, speci- fications of such lien, which may consist either of a bill of partic- ulars, of the demand, or a copy of any written contract imder which the work may be done, with a statement of the amount claimed to be due from such vessel, the correctness of which shall be sworn to by such person, his legal representative, agent, or assigns. 684 LIEN LAW : SHIPS AND VESSELS. [CH. XVX Laws of 1862, p. 956, § 2. For form of specifications, see Appen- dix, No. 357. But the last-mentioned section of the statute, does not apply to vessels navigating the western and north-western lakes, or any of them. , And any debt contracted by the master, owner, chart- erer, builder, or consignee of any ship or vessel navigating such lakes or any of them, or by the agent of such master, owner charterer, builder, or consignee, shall cease to be a lien at the expiration of six months after the first day of January next, succeeding the time such debt shall have been contracted, unless during the said six months, such ship or vessel shall be absent from the port at which sufih debt was contracted, in which case the said lien shall continue until the expiration of ten days after such ship or vessel shall next return to said port. In all cases such debt ceases to be a lien upon such ship or vessel, unless the person having such debt shall, by the fijst Tuesday of February next succeeding the time such debt shall have been contracted, cause to be drawn up, verified, and filed, specifications of such debt in the form and . comprising the statements hereinbefore required. Zaws of 1863, p. 717. The departure which takes away the lien must be upon a voyage or trip in the pursuit of some kind of trade or business. And an experimental excursion, by way of testing the machinery of the vessel, though it extended beyond the State, was held not to affect the lien. 6 JBill, 494. Where a steamboat was employed daily in navigating the Hudson River, transporting passengers between Ifew York and Albany ; it was held under the provisions of the Revised Statutes, that in contemplation of law she was engaged in making coast- ing voyages ; that every trip was a departure within the meaning of the statute; and that a debt for work, labor, and materials fur- nished such boat in the city of New York, ceased to be a lien upon the boat at the expiration of twelve days from the time of her departure from that port. 2 Sand. S. G. 395. And where repairs were made by the plaintiffs from time to time, during several months, under orders to do whatever work they should be directed by the officers of the vessel to do ; it was held, also that the contract was not an entire and indivisible one, but that each job of work done constituted a separate debt, the payment CH. XVI.] LIEN LAW : SHIPS AND VESSELS. 685 of wlucli the plaintiffs could enforce under the statute. Ih. ; and see 3 Corns. 438. The statute further provides that whenever specifications ol any lien upon any ship or vessel have been filed pursuant to the statute, and no warrant has been issued to enforce the same, any person owning or interested in such ship or vessel, may apply to any justice of the Supreme Court for leave to discharge such lien upon giving bonds therefor. Liws of 1862, p. 956, § 28. The application must be in writing, and shall set forth the amount of the lien claimed to be subsisting, and the grounds of defense thereto ; and the names of two persons, proposed sureties for the lien, with their respective residences and places of business, which sureties shall, if leave to bond be granted, justify on notice to the person having the lien, before the officer granting such leave. Upon presenting such application, with proof that a copy thereof, with at least five days' notice of the time and place of presenting the same, has been served upon the person having such lien, such officer may, if no just cause be shown in opposi- tion thereto, grant leave to* bond the said claim. Ih. For forms of application and order, see Appendix, Nos. 3T9, 380. And when such leave is given, upon the execution and delivery to the person having such lien of the bond prescribed in section seven of the statute {post) approved by the officer, such officer shall direct that the lien be marked by the clerk as discharged, and the same shall cease to be a Hen upon the vessel. Ih. § 29. For form of order, see Appendix, No. 381. The Hen, in cases of collision, will cease, unless proceedings to enforce the Hen shall be commenced within ten days after the damage has been done. Ih. § 33. In respect to the discharge of the lien, after proceedings have been instituted to enforce the same, see post, " When and how warrant will be discharged." Bpedficatioiis of lien / when and where to he filed^ When- ever the ship or vessel shall leave the port at which the debt was contracted, the creditor, to preserve his Hen, is required, within twelve days after such departure, to cause to be drawn up and filed specifications of his Hen, which may consist either of a bill of particulars of the demand, or a copy of any written contract under which the work may be done, with a statement 686 LIEN law: ships and vessels. of the amount claimed to be due from such vessel, the correctness of which must be sworn to by such person, his legal representa- tive, agent, or assigns. Laws of 1862, jp. 956, § 2. And if the vessel upon which the lien is claimed is employed in the navi- gation of the western or north-western lakes, the creditor, to preserve such lien, must in all cases, by the first Tuesday of February next succeeding the time his debt shall have been contracted, cause to be drawn up, verified, and filed, specifications of his debt, in the form and comprising the statements above mentioned. Laws of 1863, p. 717, § 2. For form, see App&ndix, No. 357. The specifications must be filed in the office of the clerk of the county in which the debt shall have been contracted, except that, when the debt shall have been contracted in either of the counties of New York, Kings, or Queens, the specifications shall be filed in the office of the clerk of the city and county of New York. Laws of 1862, p. 956, § 3. And where a contract for towing a canal boat from Troy to New York was made and accepted at Troy, but no time of payment specified, and no pay- ment made nor obligation given, the money did not become due until the delivery of the boat in New York. The debt, in such case, may be said to have been contracted in New York ; and the specifications of lien were properly filed in the county of New York. 30 How. 398. The filing of a specification of the debt, previous to applying for the writ, is not necessary where the vessel has left port. 19 AU. 60. The general agent of a firm may sign and swear to the specification of lien. 30 How. 398. JL Peooeedings to ekpoboe the Lien. The proceedings to enforce the lien upon the vessel are regulated by the statute, the provisions of which should be carefully followed. Prior to the giving of the bond to obtain a discharge of the lien, the proceeding is in rem-, or against the property ; but upon the execution and delivery of the bond— the vessel being then discharged from the lien— the proceeding is in personam; so held under the act of 1817, which was fiimilar to the present statute. 2 Wend. 303. CH. XVI.] LIEN LA"W: SHIPS AND VESSELS. 687 Application for warrani.'] The statute provides, tbat any person having any lien upon any ship or vessel, for any debt contracted for any of the purposes hereinbefore specified, may make application to any officer authorized by law to perform the duties of a justice of the Supreme Court, at chambers, in the county within which such ship or vessel shall then be, for a warrant to enforce the said lien, and to collect the amount thereof. Zaws of 1862,^. 956, § 4; 30 Eow. 398. The application is required to be in writing, and to exhibit and specify : 1st. By whom and when such debt was contracted, and for what ship or vessel ; 2d. The items composing the debt ; 3d. The amount claimed, and that the same is justly due to the person in whose behalf the application is made, over and above all payments and just deductions ; 4:th. Any assignment or transfer of such debt, if any such has taken place since the same was contracted ; 5th. When and where the specification of such debt was filed. The application must be verified by the affidavit of the cred- itor, or of the person making the application, or of his or their agent in that behalf. Zaws of 1S62, p. 956, § 4; 30 Bow. 398. For forms, see Appendix, Nos. 358, 359. If the vessel has been sold, the proceeds thereafter, until dis- tributed, stand in the place of the vessel ; and the lien is to be enforced against the proceeds in the same manner as is provided for enforcing a lien against the vessel itself, and with the like effect. Zaws of 1862, p. 956, § 19. The application for a warrant may be made by the assignee of the lien where he has obtained an assignment of it in the form and manner prescribed by the statute. Jb. § 2Y, post, " Assign- ment of Hen." In preparing the application, it is sufficient to state that the lien was for materials furnished the vessel, and referring to an account annexed as containing the items composing the debt. 3 Seld. 508, 512. And so, in respect to the allegation of the per- son who contracted the debt, it is sufficient if the application allege that the debt was contracted by " E. S. D., master, owner, or agent," of the vessel, without distinctly specifying in which character he acted. lb. Nor is it a material defect to omit to LIEN LAW: SHIPS AND VESSELS. [CH. XVI. specify the names of the ownets of the vessel in the application. 19 Ahb. 50. Clerical defects in the application may be amended on the presentation of the same. Ih. Undertaking to he ffwen.] The statute provides, that the warrant shall not be issued unless the person applying for the same shall deliver to the officer to whom the application is made, to be filed by him, an undertaking to the eflfect, that if the said applicant do not, within three months after such delivery, prose- cute any bond which may be given upon the discharge of such warrant, or if the said applicant, in any action brought upon said bond, be finally adjudged not to have been entitled to such war- rant, the parties giving such undertaking, will pay all costs that may be awarded against such applicant, not exceeding the sum specified in the undertaking, which shall be at least one hundred dollars, and any'damages that may be sustained by reason of the seizure of such Vessel under such warrant, not exceeding the sum of fifty dollars. The undertaking must be executed by the appli- cants or one of them, or their agent, and at least one surety, who must be a resident and householder within this State ; and must be approved by the officer to whom the application is made. Zaws of 1862, p. 956, §§ 7, 12 ; Laws of 1863, p. 717. For form of undertaking, see Appendix, No. 360. Before presenting the undertaking to the officer for approval, it should be proved or acknowledged, and the sureties should justify in the usual form. Sup. Goxirt Rules, ISo. 6. If the undertaking is defective, it may be amended; and when amended, will be valid from the \ime of its execution. 19 Ahh. 50. Warrant and proceedings thereon.] The officer to whom the application is made is required, thereupon, to issue a warrant to the sheriff specifying the amount of the claim, and the names of the persons making the claim, and commanding him to attach, seize, and safely keep said ship or vessel, her tackle, apparel, and furniture, to satisfy such claim, if established, to be a lien upon such vessel, according to law, and to make return of his proceed- ings under such warrant to the officer who issued the same, within ten days after such seizure. Laws of 1862,^. 956, § 6. For form of warrant, see Appendix, No. 361. CH. XVI.] LIEN LAW : SHIPS AND VESSELS. Tlie sLeriflF to wlioin tlie warrant is directed and delivered, is required fortliwith to execute the same, and to keep tlie said ves- sel, her tackle, apparel, and furniture, to be disposed of as directed by the statute. Jh. § 8. He cannot execute the warrant out of his county. 19 Abi. 50. The sheriff is required to make return of his proceedings, un- der the warrant, to the officer who issued the same, within ten days after the seizure ; and he is required, also, in his return, to state whether he has seized said ship or vessel, by virtue of any other warrant or warrants, and if so, to specify in whose behalf, and for what sums such other warrants have been issued, respect- ively, and the time of his reception thereof Zaws of 1862, p. 956. For form of return, see Appendix, N"o. 371. Notice to he published.'] The person applying for the war- rant is required, within three days after the issuing thereof, to cause a notice to be published once in each week, for four suc- cessive weeks, in some newspaper published in the county in which the vessel may then be, or, if no newspaper be so pub- lished in such county, then in the nearest county in which a newspaper shall be so published, setting forth that such warrant has been issued, the amount of the claim specified therein, the day when such warrant was issued, and that such vessel will be sold for the payment of the claims against her, unless the master, owner, or consignee thereof, or some person interested therein, appear and discharge such warrant according to law, within thirty days from the first publication of such notice. Zaws of 1862, p. 956, § 9. For form of notice, see Appendix, No. 362. When and how warrant will be disehurged.'] It is provided by the statute that the owner, consignee, agent, or commander of any vessel seized by virtue of any warrant issued, pursuant to the statute, or any person interested in such vessel, may, at any time before such vessel is sold, as hereinafter provided, apply in person or by attorney, to the officer who issued the warrant, on one day's notice, to the said attaching creditor or his attorney, for an order to discharge the same ; which notice is required to specify the names, places of residence, and places of business of 690 LIEN LAW : SHIPS AKD VESSELS. [CH. XVL the proposed sureties. Laws of 1862,^. 956, § 10. For form of notice, see Appendix, 'No. 363. The statute further provides, that the person making the ap- plication shall execute and deliver to the officer to whom the application is made, a bond to the creditors prosecuting the war- rant, in a penalty at least double the amount specified in the warrant, conditioned that the obligors therein will pay the amount of any and all claims and demands which shall be estab- lished to be due to the person or persons in whose behalf the warrant was issued, and to have been a subsisting lien upon such vessel, pursuant to the provisions of the statute at the time of exhibiting the same. And in all such cases the attaching cred- itor has the right to examine the sureties aa to their sufficiency, at such time and place as shall be fixed by the judge to whom the application is made. lb. § 11 ; 2 Bosw. 680. For form of bond, see Appendix, No. 364. It is not necessary that the bond should appear on its face to have been taken by, or before the officer who issued the attach- ment. And in an action upon it, the defendant cannot set up irregularities, or defects in the affidavit of the obligee upon which he became an attaching creditor, — the only questions being, what was the amount and nature of the claim, and was it a subsisting lien. 3 Sand. S. G. 572, 574. Nor is it any objection to the bond that its condition is to pay all such claims as have been exhibited, and which shall be established as subsisting liens; omitting the words " at the time of exhibiting the same," con- tained in the statute. Ih. Nor that the condition of the bond is for the payment of all subsisting liens, although the statute required only a bond for the payment of such demands as were exhibited to the officer granting the warrant. 26 Wend. 502. Upon the bond being executed and delivered to the attaching creditor, or his attorney, and the taxed fees of the sheriff paid, the officer is required thereupon to grant his order discharging the warrant that may have been issued by him in favor of the creditor ; and no further proceedings against the vessel so seized shall be had under the provisions of the statute founded upon any demand secured hj such bond. And such bond may be prose- cuted in any court having jurisdiction thereof, at any time within three months after such delivery, but not afterward. Laws oj CH, XVI.] LIEK LAW : SHIPS AND VESSELS. 691 1862, p. 956, § 12. For form of order discharging warrant, see Appendix^ No. 365. In respect to the discharge of the lien previous to the issuing of the warrant for its enforcement, see post, " When lien may be discharged," Action upon the hond given on the discharge of the warrant.'] The bond given on the discharge of the warrant may be prose- cuted in any court having jurisdiction thereof, any time within three months after its delivery to the officer ; but not afterward. Zaws of 1862,^. 956, § 12. For form of complaint, see Appen- dix, ISTo. 366. And if in any action brought upon such bond it be found that any sum is due the plaintiff, which was a subsisting lien upon such ship or vessel at the time of exhibiting the same, as provided in the statute, judgment shall be rendered that the plaintiff re- cover the same with the costs and allowances of the action, and the costs of the attachment, as also provided in the statute, and that he have execution therefor. Ih. § 13. But if it is found in such action that no subsisting lien existed in favor of the plaintiff at the time of exhibiting his claim, then judgment shall be rendered against such plaintiff for the costs and allowances of such action and the costs of the attachment, including the amount of the sheriff's fees due and paid on releas- ing such vessel from the warrant. Ih. After the bond is given, the lien on the vessel ceases. The action upon the bond, therefore, becomes a proceeding in per- sonam, and not in rem. 2 Wend. 303, 306. In an action upon the bond the plaintiff is bound to state his demand in the complaint ; and not only this, but he must prove it on the trial of the cause. It is not enough that he establish it before the officer issuing the warrant. 21 Wend. 260 ; and see 2 JBosw. 680. And where a bond was given to several attaching creditors, conditioned to pay to each creditor the amount due him, and the statute (2 Bev. Stat. 12, sec. 57) provided that the bond should be held for the common benefit of all the creditors, and might be prosecuted by them jointly, or by any one of them separately, in respect to his separate demand ; it was held that a single creditor might maintain a suit on the bond in his own name. 2 Corns. 388 j overruling 19 Wend. 527. 692 LIEN LAW : SHIPS AND VESSELS. [CH. XVI. In the action on the bond, the defendant cannot set up irregu- larities, or defects in the affidavit of the obligee npon which he became an attaching creditor. The question is not on the suffi- eiency of the affidavit, but on the validity of the claim and its existence as a lien. 3 Sand. S. G. 672. The recitals in the bond of the issuing of the attachment, is sufficient evidence of that fact upon the trial of the action. Ih. The successful party in the action, as we have seen, is entitled to recover the " costs and allowances of the action," as well as the " costs of the attachment." Laws of 1862, p. 956, § 13. The " costs and allowances of the action " are regulated by the Code of Procedure (§§ 303 to 322); and the "costs of the attach- ment," are those prescribed by section fourteen of the statute regulating these proceedings, as to which, see jpost, under the head of " Costs, fees of sheriff, &c." Order directing sale of property, c&c.j The statute provides that if the creditor who shall have exhibited his claim, shall not have been satisiied, and if such vessel shall not have been dis- charged within thirty days after the first publication of the notice required by the ninth section of the statute {ante, p. 689), upon due proof of the publication of such notice, the officer who issued the warrant shall issue his order to the sheriff holding the vessel under the warrant, directing the sheriff to proceed and sell the vessel so seized by him, her tackle, apparel, and furniture ; and such order shall state the amount deemed necessary to be raised to satisfy aU unsatisfied liens which have been exhibited against such vessel. Laws of 1862, p. 956, § 15. For form of affidavit to obtain order, see Appendix, No. 367. Upon proof of personal service of the notice above required, and of notice of the application for sale upon the owners of the vessel, and upon aU other unpaid creditors who have filed speci- fications of their liens, pursuant to the provisions of the statute, such order of sale, in the discretion of the officer, may be issued at any time after the seizure of the vessel. II. For form of notice of application, affidavit of service, &e., see Appendix No 368. ' At the time of issuing the order of sale, the officer granting the same is required, also, to order a notice to be published in the same newspaper in which the notice of seizure is required to be CH XVI.] LIEN LAW: SHIPS AND YESSELS. 693 published {ante, p. 689, § 9), once a -week for three weeks, re- quiring all persons who have any hens upon the vessel by virtue of the provisions of the statute, and the master, owner, agent, or consignee, and all other persons interested in such vessel, to ap- pear before him at a day to be therein specified, not less than thirty, and not more than forty days from the first publication of the notice, to attend a distribution of the proceeds arising from the sale of the vessel, her tackle, apparel, and furniture ; and the officer may, in his discretion, direct such distribution to be -made before a referee to be appointed by him on notice. Laws of 1862, p. 956, § 18. For forms, see Appendix, 'No. 369. Sale of jyroperty ; notice of sale, o&c.J The statute requires the sheriff, within ten days after the service of the order, uuless the order be sooner vacated, to proceed to sell the vessel so seized by him, her tackle, apparel, and furniture. Laws of 1862, ^.956, §16. The sale is to be upon the same notice, in the same manner, and in all respects subject to the provisions of law in case of the sale of personal property upon execution. Ih. The sheriff, therefore, must give six days' notice of the sale, by fastening up written or printed notices thereof, in three public places of the tovra where the sale is to be had, specifying the time and place where the same is intended to be had. 2 Rev. Stat. 366, sec. 21. The sale must be by auction, between the hours of 9 a. m. and sunset, at the place where the vessel is situated ; and a sale after sunset would be void. 2 Bev. Stat. 369, sec. 36 ; 14 Barb. 9. The vessel must be present, and within view of those attending the sale, and be specially designated. 2 Bev. Stat. 36Y, sec. 23 ; 4 Barb. 484 ; 17 Johns. 115. The sale may be adjourned, in the discretion of the sheriff, if there is no fraud or abuse. 5 Id. 345. Sheriff''s return.] The sheriff is required to return to the officer granting the order his proceedings under the same. Lams of 1862, p. 956, § 17. And the proceeds of the sale, after de- ducting the sheriff's fees and expenses, in seizing, preserving, watching, and selling the vessel, when duly taxed, are required to be retained by the sheriff in his hands, to be distributed and paid as prescribed by the statute (j)ost). lb. Vol. L— 48 694 LIEN LAW : SHIPS AND VESSELS. [CH. XYL The statute further requires the sheriff to make return of hia proceedings under the warrant of attachment to the officer who issued the same, within ten days after the seizure of the vessel, &c. ; and, in his return, to state whether he has seized the ship or vessel by virtue of any other warrant, and, if so, to specify in whose behalf and for what sums such other warrants have been issued, respectively, and the time of his reception thereof. Tb. § 6. For forms, see Appendix, No. 371. It is further provided by the statute, that every sheriff, to whom a warrant may have been delivered, may be compelled, by any oflBcer having jurisdiction over the proceedings thereon, to return such warrant, with his proceedings thereon, and to pay over moneys in his hands, and to take any steps necessary for the safety of the vessel, pursuant to any order for that purpose, by an order of such officer, and by process of attachment for dis- obedience thereof, on the application of any person interested therein. II. § 32. Owner, <&c. , 7nay interpose a defense ; and proceedings thereon."] At any time before the final distribution of the proceeds, the master, owner, agent, consignee, or any person having any interest whatever in such proceeds, may contest any claim which shall have been exhibited against such vessel, or the proceeds thereof. Laws of 1862, p. 956, § 20. In case of such contest, the party making objection to any such claim is required to file with the officer a written statement or answer, designating the claims he desires to contest, and controverting such of the allegations of the petition exhibiting the claims as he may be able to controvert ; and likewise setting up any other matter of defense thereto. Such statement or answer is required to be verified by the party presenting the same, to the effect that the same is true to the best of his knowl- edge or belief A copy thereof must, within five days from the filing thereof, be served upon the person whose claim it is intended to contest, or his attorney ; otherwise it will be deemed abandoned. II. § 21. For form of answer, see Appendix, No. 372. If the answer do not contain matter of defense to such claim, it may be stricken out, on motion of any person who has exhibited any daim against the vessel, or the proceeds thereof. Ih. § 22 CH. XVI.] LIEN LAW : SHIPS AND VESSELS. 695 Tnal of the issue, and siibseqitent proceedings.^ Tlie statute provides that the issue between the contestants shall be tried before a judge, in like manner as other issues which are author- ized by law to be tried before a judge, and at some early day, to be fixed by the oflBcer who issued the warrant, or the same may be referred by such officer to some competent referee, to hear and determine the same in like manner as in ciyil actions. Laws of 1862, p. 956, § 23. For form of order of reference, see Appendix, No. 373. Either party has the same right to except to and appeal from the report of the referee, or the decision of the judge, as in civil actions ; and, on such appeal, the finding of the referee or court, both of law and of fact, shall be examined, and may be reversed or modified, or a new trial may be ordered. Judgment for costs shall be rendered in favor of the successful party, as in personal actions, and the successful party shall be entitled to recover the costs and allowances provided for in the Code of Procedure in civil actions. lb. § 24. Proceeds of sale, and distribution thereof] The proceeds of the sale, as we have seen, after deducting the sheriflfs fees and expenses in seizing, preserving, watching, and selling the vessel, are required to be retained by the sheriff", to be distributed and paid, as directed by the State, Laws of 186^ p. 956, § 17. And at the time of issuing the order of sale, the officer granting the same is required to order a notice to be published in the news- paper in which the notice of seizure was published {ante, p. 689, § 9), once a week for three weeks, requiring all persons who have any liens upon the vessel, by virtue of the provisions of the statute, and the master, owner, agent, or consignee, and all other persons interested in the vessel, to appear before him at a day to be therein specified, not less than thirty and not more than forty days from the first publication of such notice, to attend a distribution of the proceeds arising from the sale of such vessel, her tackle, apparel, and furniture. The officer, in his discretion, may direct the distribution to be made before a referee to be appointed by him on notice. 2i. § 18. For form of notice, see Appendix, No. 370. The proceeds of the sale, until distributed as provided by the statute, stand in place of the vessel, and until such distribution, 696 LIEN LAW : SHIPS AND VESSELS. [CH. XVL any person entitled under the statute to enforce a lien against the vessel may enforce the same against such proceeds, in the same manner as is herein provided for enforcing a lien against the vessel itself, and with like effect. Upon the distribution of such proceeds, the various claims exhibited, which are found to be subsisting hens upon the vessel, or the proceeds thereof, accord ing to the provisions of the statute, shall, with their respective costs, expenseSj and allowances, be ordered to be paid out of the proceeds, in the order of the delivery of the respective warrants, to the sheriff. The costs, disbursements, and allowances upon the distribution shall be the same as those allowed in civil actions upon a trial. Ih. § 19. The statute provides further, that when the amount of all the claims which shall have been exhibited, and which are found to have been subsisting liens upon the vessel at the time of exhibit- ing the same, shall have been finally determined, the said pro- ceeds shall be distributed by the court, as provided in section eighteen of the statute {ante, p. 695), on motion of any person interested therein, or otherwise. And any uncontested claims entitled by the statute to be paid out of the proceeds prior to the claims which may be contested, shall, on motion of the parties interested, be paid in the order of their respective priorities, not- withstanding such contest, with costs ; and if at any time it be made to appear that after payment of all prior uncontested claims and their respective costs, and after deducting an amount sufficient to pay all prior contested claims and costs, there will remain a surplus of such proceeds applicable to the payment of any subsequent uncontested claim, such claims may, on notice to the owner or agent of the vessel, or other parties interested, be ordered to be paid out of such surplus, with costs. Laws of 1862, ^. 956, § 25. For forms of orders, see Appendix, IS'os. 374 to 377. If there is more than one attachment against the vessel or its proceeds, the creditor who obtains the first attachment is entitled to a preference in the appropriation of the proceeds. There is no pro rata distribution in such cases. 1 Wend. 39 ; Laius 0/1862, p. 956, § 19. The proceeds of the sale are subject to the direction of the court, and may at any time be invested by the court, according to the practice thereof. Il>. § 26. CH. XVI.] LIEN LAW : SHIPS AND VESSELS. 697 In respect to the surplus of the proceeds, the statute provides, that if, after payment of all claims which have been exhibited, and been found to be payable out of the proceeds of the sale, a surplus thereof remain, such surplus may be distributed by the court to the persons entitled thereto ; but such distribution sliall not be made until a notice shall have been published specifying the amount of such surplus proceeds, the names of the persons applying therefor, together with the name of the ship or vessel from which the same arose, and the date of the sale of such ves- sel. The notice must be published in the same manner and for the same time as prescribed, ante, p. 689 ; Ih. § 30. Foi- form of notice, see AppcTidix, No. 378. m. Miscellaneous. When lien may he discharged.'] The statute provides that whenever any specifications of any lien upon any ship or vessel shall have been filed pursuant to the provisions of the statute, and no warrant has been issued to enforce the same, any person owning or interested in such ship or vessel may apply to any justice of the Supreme Court for leave to discharge such lien upon giving bonds therefor. The application must be in writing, and shall set forth the amount of the lien claimed to be subsist- ing, and the grounds of defense thereto ; it shall also set forth the names of two persons, proposed sureties for such lien, vsith their respective residences and places of business ; which sureties shall, if leave to bond be granted, justify on notice to the per- son having the lien before the officer granting such leave. Upon presenting such application, with proof that a copy thereof, with at least five days' notice of the time and place of presenting the same, has been served upon the person having such lien, the officer may, if no just cause be shown in opposition thereto, grant leave to bond the said claim. I^aws of 1862, ^.956, § 28. For forms of application and notice, and order, see Appendix, Nos, 379, 380. When such leave is given, and upon the execution and de- livery, to the pei-son having such lien, of the bond prescribed in section seven of the statute {ante, p. 688), approved by the officer, such officer is required to direct that the said Ken be marked by LIEN LAW : SHIPS ADD VESSELS. [CH. XVI tlae clerk as discliarged, and the same shall cease to be a lier upon the vessel. Ih. § 29. For form of bond, see Appendix, So. 364 ; and for form of order directing discharge, see Appendix, No. 381. Assignment of lien.] "Whenever any person liaving a lien against any ship or vessel shall have filed specifications thereof as provided by the statute, such lien may be assigned and trans- ferred by an instrument in writing, duly acknovrledged and filed in the same place where the original specification of such liens were filed {ante, p. 685) ; such assignment shall describe the debt intended to be transferred, and specify the date of the filing the specification thereof, and shall state to whom it is intended to transfer it. For form, see Appendix, "No. 382. Such transfer and the name of the person or persons to whom such lien has been transferred, shall be noted by the clerk opposite the original entry of such lien ; and after the filing of such assignment and transfer, but not otherwise, the person to whom the lien has been transferred, shall be entitled to enforce the same in like manner as the person who transferred the same could have done. Zaws of 1862, p. 956, § 27. For form of assignment, see Appendix, No. 382. Costs, fees of sheriff, c&c] In an action upon the bond, the successful party is entitled to recover the costs and allowances of the action and the costs of the attachment. Zaws of 1862, p. 956, § 13. In like manner the party foreclosing his Hen under the statute, is entitled, upon the distribution of the proceeds, to his costs, ex- penses, and allowances, to be paid out of the proceeds. These costs, &c., are the same as those allowed iu a civil action upon a trial. lb. § 19. And in case of a contest between the claims of conflicting creditors, the successful party is entitled to costs against the other ; which costs are also the same as are provided for iroon a tiial in a civil action. li. § 24. The " costs and allowances of the action," above referred to are regulated by the Code of Procedure (§§303 to 322); and the "costs of the attachment," also referred to, are those prescribed by the statute regulating these proceedings. CH. XVI.J LIEN LAW : SHIPS AND VESSELS. These " costs of the attachment," the statute provides, shall be, in addition to the disbursements, for filing specification of a lien, two dollars ; for exliibiting a lien and procuring a warrant therefor, where the amount of the lien is under fifty dol]ars,«ten dollars; where the amount of the lien exceeds fifty dollars, and is under two hundred and fifty dollars, twenty dollars ; where the amount of the lien exceeds two hundred and fifty dollars, and is under one thousand dollars, thirty dollars; and where the amount of the lien exceeds one thousand dollars, fifty dollars ; for attending to the discharge of any warrant upon a bond, ten dollars. Laws of 1862,^. 956, § 14. The sheriff, by the same section, is entitled to the following fees and expenses : for serving a warrant, one dollar ; for return- ing the same, one dollar ; for the expenses of keeping the vessel in custody, the necessary sums paid by him therefor, not exceed- ing, however, the sum of two dollars and fifty cents for each day the vessel shall have been held by him in custody. And the sheriff is not entitled to receive any other or greater sums than those above specified, for any service rendered by him in any pro- ceeding under the statute ; nor can he be allowed expenses of custody upon more than one warrant at the same time. II). All costs, disbursements, and fees are required to be verified by affidavit, and adjusted by the officer who issued the war- rant. JTb. Proceedings may he contimied before other Judges.] The statute provides that whenever any proceeding shall have been commenced before any judge, the same and every part thereof, may, in the absence or inability of such judge, or by his order to that effect, be continued before any other judge of the same court. Zawo/1862,j). 956, §31. Repeal of other statutes.] By the statute, title eight, article one of chapter eight, of part third of the Eevised Statutes, en- titled Of proceedings for the collection of demands against ships and vessels, and all acts amendatory thereof; and also an act en- titled An act to extend the provisions of the law relative to pro- ceedings for the collection of demands against ships and vessels, passed eighteen hundred and thirty-one, chapter three hundred and eighteen, are repealed. Zaws of 1SQ2, p. 956, § 34. 700 LIEN LAWS. [CH. XVL Debts contracted hefore the act, not affected.'] The statute does not apply to debts contracted before the act takes effect. Laws o/'1862,_p. 956, § 35. SUPPLEMENT TO CHAPTER XYI. 1. LIEN LAW- NEW YOKE CITY. The proceeding to enforce a lien under the Statute is not an action, but a special proceeding ; so held under the Act of 1851, amended in 1855 ; and, there- fore, that the Code {§ 111), requiring every action to be prosecuted in the name of the real party iu interest, did not apply to such proceedings. 57 N. T., 409 affirming S. C, 11 Abb.. N. ;S.."826, and see 59 N. T., 372. ' The Act of 1863 (ch. 500) had no retroactive operation ; it repealed the old act as to subsequent liens, but continued it in force as to existingr liens. 57 ir. r., 433. TTie statute does not give a lien upon a pubKc building, under a contract made by a public officer. 47 N. T., 666, and see 7 Hun, 73. Nor upon the interest of any person as owner of the premises, unless such person shall have himself, or by his agent, entered into a contract for doing the work, either express or implied. 54iV. r.,369. But a lun may be obtained and enforced, although payment was to be made under the contract otherwise than in money, when the owner has made himself liable to pay in money, by failing to perform, after demand. In such case the court should determine the amount to be paid in money, and render judgment therefor. 59 N. Y., 367. Liability of owner, after payment. Under the Lien Law for the city of New York (Laws o/1863, ch. 300, as amended 1866, ch. 752, the filing of a notice by one furnishing materials to a contractor after the latter has received payment from the owner, in pursuance of the contract, for all the work done, and has made default and abandoned the contract, does not make the owner liable or give a valid lien. 60 N. T. , 127, and see 5 Hun, 13 ; 55 W.T., 491. , Nor am a lien be acquired for materials furnished to a sub-contractor, after full payment to the latter, pursuant to the contract, although moneys thereafter become due and payments are made to the original contractor. 60 JV. 7., 127. Extent of lien. Under the act of 1851, the lien attached only to the right, title, and interest of the owner at the time the notice was filed. 49 Barb. 367. If the owner had parted with his interest previous to the filing of the notice, no Uen was acquired, lb. Otherwise, however, under the act of 1863, where 'the conveyance was in fraud of the lieu. 36 How. Pr. B. , 73. How long Hens to continue. Under the act of 1851, where a lien was acquired and proceedings commenced to enforce it, it was held that the lien continued after the expiration of the year and until judgment was rendered. 57 N'. T 433. Otherwise, however, under the act of 1863. lb. ; and see 5i Id., 336 ; 57 Barb. , 165 ; 3 Lansing, 134. In the case_ last mentioned, however, the court may proceed upon the merits and give judgment against the defendant person- ally. 56 JT. T., 610. Dincharge of lien. The lien can only be discharged in one of the modes pre- scribed by the statute. The court cannot discharge it before the lapse of a year. 2 Abb., N. S., 361 Under a judgment which exempts property from a lien, the hen may be discharged of record, notwithstanding an appeal from the judgment unless the proceedings have been stayed. 3 Id., 144. CH. XVI.] LIEN LAWS. 700-1 Specific performance of contract to convey real estate. A judgment cannot be rendered against the owner requiring the specific performance upon his part of an agreement to convey certain real estate in part payment for the work done. 59 iV. P;,367. Courts harying jurisdiction under New 7ork Km law. The Marine Court has now unlimited jurisdiction in these proceedings. Code of CivU Pro. , §ti 915, 316. So, also, the Superior Court and Court of Common Pleas, lb., SS 363, 286. Amendments. The power to amend the proceedings under the statute is dis- cretionary with the court ; and it is not an abuse of its discretion to refuse an amendment which introduces a new cause of action or defence. 56 N. T.. 610. A pei-sonal judgment is now proper against a party personally liable for the amount found due (under act of 1851, as amended 1855. ) 57 N. Y. , 409 . _ Amimdm.enta to statute; Act of 1875. The following statute, defining and limiting the liens of contractors and others upon real estate in the city of New York, and providing for the enforcement of the same, was passed in 1875 (Laws 0/1875, ch. 379, p. 436). The statute is given in full, viz. : Sec. 1. Lien for labor, etc. , and amount of same. Every person performing labor upon, or furnishing materials to be used in the construction, alteration, or repair of any building, vault, wharf, fence, or any other structure in the city or county of New York, shall have a Uen upon the same for the work or labor done, or materials furnished by each respectively, whether done or furnished at the instance of the owner of the building, or other improvement, or his agent, but the aggregate amount of such Kens must not exceed the amount which the owner ■would be otherwise liable to pay at the time of the filing of the claim prescribed by section five of this act. § 3. Lien for improving lot, etc. Any person who, at the request of the owner of any lot in said city or county, grades, fills in, or otherwise improves the same, or the sidewalk orstreet in front of or adjoining the same, shall have a lien upon such lot for his work done and materials furnished, to the extent of the liability therefor of the owner of the property at the time of filing the claim prescribed by section five of this act. § 3. Extent of lien. The land upon which any building, improvement or structure is constructed, together with the appurtenances, shall be subject to the liens, if at the time the work was commenced, or the materials for the same had commenced to be furnished, the land belonged to the person who caused said building, improvement or structure to be constructed, altered or repaired, but if such person owned less than a fee simple estate in such land, then only his interest therein shall be subject to such lien. § 4. Preference of liens. The liens provided for in this act shall be pre- ferred to ally Hen, mortgage or other incumbrance of which the lien holder had no notice, and which was unrecorded at the time of the filing of the claim referred to in the next section. § 5. Claim, filing and contents of same, etc. Every original contractor, within sixty days after the completion of his contract, and every person, save the original contractor, claiming the benefit of this act. must, within thirty days after the completion of any building, improvement or structure, or after the completion of the alteration or repair thereof, or after the completion of the work or the furnishing of the materials for which the lien is claimed, file with the county clerk of the county a claim containing the names and residence of all the claimants and a statement of the demand after deducting all just credits and offsets, with the name of the owner or reputed owner, if known, and also the name of the person by whom he was employed, or to whom he furnished the materials, with a statement of the terms, time given, and conditions of his contract, and whether all the work or materials for which the claim is made has been actually performed or furnished, and if not, how much of it, and also a description of the property to be charged with the lien, sufficient for identifica- tion, which claim must be verified by the oath of himself or one of several united in interest, or of some other person. The verification must be to the effect that the statements contained in the claim are true to the knowledge of 700-2 LIEN LAWS. [CH. XVI. the person making the Bame. If his contract or any part thereof is in writing, a copy of such writing must be filed with and made part of his claim. § 6. Olaim against more than one bvilding, and lien in such cases. In every case in which one claim is filed against two or more buildings or other improve- ments owned by the same person, the person filing such claim must, at the same time, designate the amount due to him on each of such buildings or other im- provements, otherwise the lien of such claim shall be postponed to other liens. The Uen of such claimant shall not extend beyond the amount designated as against other creditors having Kens by judgment, mortgage or otherwise, upon either of such buildings or other improvements, or upon the land npon which the same are situated. § 7. Lien docket ; clerk's fees ; when lien attaches. The clerk shall enter the olaim in a book kept by him for. that purpose, called the lien docket. Such entry shall contain the name and residence of the claimant, the person who in- curred the debt, the amount, and the date of filing, the street and particular place where located, in such manner as to be convenient in searching for the liens by street and block. The county clerk shall receive ten cents on filing the same. Except as provided in the fourth section, the lien shall attach from the time of the filing of the claim to all the light, title and interest which the owner then has in the property therein described, trf the extent of the liability of such owner, for the claim preferred. , § 8. How long lien continues without actum, etc. ; claimants as parties. No lien provided for in this act shall bind the property therein described for a longer period than ninety days after the claim has been filed, unless an action be com- menced within that time to enforce the same, and a, notice of the pendency of such action- filed with the clerk of the county, and an entry of the fact of such notice made on the lien docket. And where a claimant is made a party defend- ant to any action brought to enforce any other lien, a notice of the pendency of such action must be filed by him or in his behalf. But the neglect to file such notice shall not abate any action which may be pending to enforce the lien ; such action may be prosecuted to judgment against the persons liable for the debt. § 9. Enforcing lien by action. Any claimant who has filed the notice men- tioned in the fifth section of this act may enforce his claim against the property therein described, and against the persons liable for the debt, by a civil action in a court of record held in said city. §10. Form of the action. The manner and form of instituting and prosecut- ing any such action- to judgment, and any appeal from such judgment, shall be the same as in actions for the foreclosure of mortgages upon real property, ex- cept as herein otherwise provided. § 11. Parties to the action, etc. ; court to determine priority of liens. The person filing the claim shall be the plaintiff in such action. The plaintiff must make all parties who have filed claims against the property as well as those who have subsequent liens by judgment, mortgage, or conveyance, parties defend- ant. And as to all persons against whom no personal claim is made, the plaintiff may, with the summons, serve a notice, stating briefly the object of the action, and that no personal claim is made. But all persons who have filed claims under this act may, by answer in such action, set forth the same, and the court in which the action is brought may decide as to the extent, justice and priority of the claims of all parties to the action. § 13. Consolidating actions. Any number of persons claiming Hens upon the same property may join in the same action, and when separate actions are com- menced the court in which the first was brought may, on the application of the owner of the property, or of any part thereof, consolidate them. § 13. Offer to pay into court, and acceptance thereof, etc. At any time after the action is commenced, the owner of the property affected may in writing offer to pay into court any amount stated in the offer, or to execute or deliver any securities or papers which he may describe in discharge of the property. If the offer is accepted in writing within ten days thereafter, the court in which the action is pending may make an order that on deposit with the county clerk of the amount offered, or the securities or other property described, the lien be dis- charged, and the money or securities deposited thereafter takes the place of the CH. XVI.] LIEN LAWS. 700-3 lien. In case the offer be not accepted within ten days, and the plaintiff fails to recover any more favorable judgment against the property, he shall pay all costs in the action incurred by the owner from the time of the offer. § 14. Sub-oontractar and his rights. All persons entitled to liens on the struc- ture or improvement, except those who contracted with the owner thereof, shall be deemed sub-contractors, and the court in the judgment shall direct the amount due sub-contractors to be paid out of the proceeds of safes before any part of such proceeds are paid to iie contractor. § 15. Different liens, liow determined, etc. In every case in which different liens are asserted against property, the court in the judgment must declare the rank of each lieu or class of liens, and the proceeds of the sale of the property must be applied to each lien or class of liens in the order of its rank. § 16. WJien contract is for other property than money. Whenever by the terms of his contract the owner has stipulated for the delivery of bills, notes, or any other species of property in lieu of money, the judgment must direct that such substitute be delivered or deposited as the court may direct, and the property affected by the liens can only be directed to be sold in default of the owner to deliver such substitutes within such time as may be directed. § 17. Personal judgment for de/icieney. Whenever on the sale of property subject to the lien there is a deficiency of proceeds, judgment may be docketed for the deficiency against the persons named in the judgment as liable therefor in like manner and with Uke effect as in actions for the foreclosure of mortgages. § 18. Lien, ?iow discharged. The lien may be discharged as follows : 1. By filing a certificate of the claimant or his successor in intere.st, acknowledged or approved in the same manner as the satisfaction of a mortgage, stating that the Uen is discharged. 3. By the deposit with the clerk, if before suit, of a sum of money equal to the amount claimed, with interest to the time of such deposit. 3. After the commencement of an action, by the deposit with the clerk, of such Bum as in the judgment of the court, after due notice to the claimant, wiU be sufficient to pay any judgment which may be recovered against the property. 4. In lieu of such deposit as prescribed in the last preceding subdivision of this section, the court may require the execution and delivery to the clerk, of the county of a bond, in such sum as the court may direct, executed by two suf- ficient sureties conditioned for the payment of any judgment which may be rendered against the property in the action. The sureties must justify in at least double the sum named in the bond. A copy of the bond with a notice that the suretes will attend and justify before the court or a justice thereof, at a time and place therein named not less than five days thereafter, must be served on the claimant or his attorney. Upon the approval of such bond the court may make an order discharging the lien. 5. By lapse of time, when ninety days have elapsed since the filing of the claim, and no entry has been made by the county clerk of the commencement of an action to enforce the lien. 6. By order of the court for neglect of the claimant to prosecute the same. The owner of the property or of any part thereof affected by any claim filed under this act, or the person against whom the claim is made, may at any time after the filing of any claim, serve a nofcioe in writing upon the claimant, or upon ajiy one of several united in interest, requiring such claimant to commence an action to enforce the claim within a time to be specified in the notice, but not less than ten days from the time of such service, or to show cause at a special term of any Court of record in said city, at a time to be specified in such notice, why the claim so filed should not be vacated and canceled of record. Thereupon, upon due proof of the service of such notice that no action has been commenced to enforce the claim, the court may make an order that the claim be vacated and canceled of record. And it shall not be lawful to file a claim for the same cause against the same property or any part thereof. S 19. Costs, and how awarded. Costs in all actions under this act, except as provided in section thirteen, shall rest in the discretion of the court, and may be awarded to or against the plaintiff or defendants, or any or either of them, as may be just. § 20. Right of creditor to maintain personal action, not impaired. Nothing contained in this act shaU be construed to impair or affect the right of any person 700-4 LIEN LAWS. [CH. XVI. to whom any debt may be due for work done or materials fumislied to maintaiu a personal action to recover such debt against the person liable therefor. § 21. Lien not authorized against property used for public purposes. Noth- ing contained in this act shall be construed to authorize the filing of any claim against any building or property used for public purposes. § 22. T/iis act shall take effefit on the first day of July, eighteen hundred and seventy-five. #But nothing herein contained shall afEect proceedings commenced prior to that date. IL LIEN LAW— GENEEAL ACT. The remedy generaUy. The proceedings to obtain a Uen and to enforce it, have no foundation at the common law, but rest entirely upon the statutes au- thorizing them. 54 N'. T. , 326. The party asserting a lien under the statute must bring itself within its terms, and the lien must be shown not only to have been regular and valid in its inception, but a continuing and subsisting one. 50 Id. , 360. The lien is, in general, a personal right given to the mechanic, mate- rial man or laborer, for his own personal protection. An assignee of a claim, therefore, is not authorized to acquire a lien, except for the benefit of the as- signor. 45 N. T., 767 ; and see Id., 84. A lien cannot be acquired against the property of a municipal corporation. 7 Hun, 73 ; and see 47 N. T. , 666. In wlMt cases lien may be acquired. To entitle a party to a Uen, he must proceed against the owner of the property. 1 Lansing, 314 -,8. C , 57 Barb. , 399. The statute {Laws 1 869, ch. 558) gives a lien for labor, provided the notice is filed within thirty days after the performance and completion of such labor. Where the plaintiff performed work under a written contract to plaster a house at a fixed price ; and also during the progress of that work performed other work from time to time ; the evidence tending to show that it was all one piece of work ; it was held that he was entitled to recover for all his labor, although some of the items of work were performed more than thirty days before the notice of lien was filed. 1 Hun, 489 ; but see 9 Id. , 424. The statute {Laws of 1873, ch. 489) does not authorize a lien to be created, as against the owner of the fee, where he had made a contract for the sale of the property and the vendee was in possession, for materials furnished to the vendee on a buildup contract made with him, unless such materials were furnished with the express consent of such owner. 8 Hun, 144 ; and see 45 N. T., 766. It is not necessary, how- ever, under that act, that any person furnishing materials or labor to a contrac- tor, should obtain the consent of the owner of the building to do so, but it is sufficient it the owner, knowing that labor and materials are being furnished to the contractor, does not object to it. 6 HUn, 655. Extent of lien. Where the property has been conveyed, during the perform- ance of a contract for repairs, etc. , a lien cannot be acquired against the pur- chaser, for materials and labor furnished and performed before he obtains title. 9 Hun, 434. Where a lien was sought to be acquired under oh. 478 of the laws of 1862, for work done and materials furnished for a number of adjoining build- ings, all owned by the same person, it was held, that, as against the owner, they could be treated as a single building, and a siugle proceeding could be instituted to enforce the lien against aU of them. 53 N. T. , 346. The terms of that act (§1) are sufficiently comprehensive to include a claim for flagging the side- walk- in front of the lot. lb. The notice of lien. Adding the words " with interest," in specifying the amount of the claim, in the notice, does not vitiate the lien ; but those words will be treated as surplusage. 5 Hun, 13. A statement in the notice that the claim was made against a third person, and that the work or materials were furnished at his request, will not invalidate the proceedings against the owner ; the notice stating who is the owner, and it appearing, 3so, that the contract was in fact made with him. 53 N. T., 346. The act of 1854 {ch. 402) required the notice of claim to be filed in the office of a town clerk ; and where, under that act, a lien was sought to be obtained upon property situated in a city, and CH, XVI.] LIEN LAWS. 700-5 the notice Tvas filed in the county clerk's office, it was held that no lien had been obtained. 3 Lansing, 188. Payments on contract after filing notice of lien. The operation of the lien law, when notice is filed by a sub-contractor, is, to transfer to the lienor the contractor's claim against the owner pro tanto. And no payment made to the contractor after such notice is filed, will affect the sub-contractor's Uen. 5 Uun, 13. Where the contract provides that the contra-otor shall receive eighty per cent, of the value of the work as it progresses, and the work has in part been performed, it is incumbent on the owner, in an action by the lienor, to show that such per centage was paid before the lien was filed, lb. The lien only extends to what is due, or to become due, upon the sub-contractor's contract ; and if he fails to perform his contract, "so that nothing becomes due thereon, or, if he is paid in fuU, according to its terms, there can be no lien. 55 N. T., 491 ; and see 60 Id., 127 ; ante, p. 660. The p7'ocee(Mngs to foreclose a lien is a proceeding purely in rem, and cannot be used for any purpose except as provided by the statute. It operates only as a foreclosure of a lien, and not as an action for the collection of a debt. 57 Barb., 165. The plaintifT* bid of particulars. If the plaintiff fails to serve with the notice the biU of particulars required by the statute (§ 10, of ch. 402, of 1854), the defendant's remedy is to move, before answering, to set aside the proceed- ings, or to stay them until such service be made. The defect is waived by ser- vice of an answer. 8 Sun, 639. The verification of the bill of particulars is sufficient, where the claimant swears it to be "in all respects true to the best of his knowledge and belief."' Id., 612. If the d^endant appears in the proceeding by attorney, it is a waiver of any defect in the service of the notice of foreclosure, and binds the defendant the same as in an action. 51 iV. Y., 649. Where personal judgment is improperly entered against a defendant, the remedy is by motion to correct it ; so held where a personal judgment, entered against the defendant, was not warranted by the referee's report, or by the stat- ute. 52 N. Y., 346, 349. HmJO long lien continues. Under the statute (ch. 402, Laws 1854), the Hen expires after the lapse of a year from the filing of the notice ; and the com- mencement of proceedings to foreclose the lien, within the year, does not ex- tend it beyond that time. 'A Lansing, 134; 57 Barb., 165; 54 N. Y., 226. Contra, however, under a recent statute. Laws of 1871, p. 363 ; 1873 , p. 749, Under the act relating to the County of Kings, the lieu will be discharged if the Uenor omit to file an affidavit of the issuing or service of the summons and complaint within the time specified by the statute. 50 iV^ I'. , 360. Kings County. To entitle a party fumishiag materials under the statute relating to Kings County (cA. 335, "Laws 1853), he must file his notice of hen within sixty days after the delivery of the same. 35 N. 7!, 94; and see 9 Hun, 434; lid, 489. Amendments and additions to the Statute : General Act. Since the passage of the general law on the subject of mechanics' liens (ante, p. 657), the follow- ing important amendments and additions have been made to the Statutes : § 1. ira what cases, and how liens created. Any person who shall hereafter perform any labor in erecting, altering, or repairirig any house, building, or appurtenances to any house, buUding, or building lot, including fences, side- w^s, paving, weUs, fountains, fish-ponds, fruit and ornamental trees, and every improvement whatever to any such house, building, or building lot, in either of the counties of this State, except Kings, "Queens, New York, Onondaga, and Bensselaer, and except the city of Buffalo, or who shall furnish any materials therefor, with the consent of the owner, being such owner as is in this section hereinafter described, shall, on filing with the county clerk of the county in which the property is situated the notice prescribed by the fourth section of this act, have a Uen for the value of such labor and materials upon such house, build- ing, or appurtenances, and upon the lot, premises, parcel or farm ot land upon which the same shall stand, to the extent of the right, title, and interest of the 700-6 LIEN LAWS. [CH. XVL owner of the property, whether owner in fee. or of a less estate, or whether a leasee for a term of years thereafter, or vendee in possession under a contract existing at the time of the filing of said notice, or any right, title, and interest in real estate against which an execution at law may now be issued under the general provisions of the statutes in force in this State relating to Hens of judg- ment and enforcement thereof. Laws of 1875, ch. 233, amending § 1 o/' Laws 1S73, ch. 4S9 ; 1869, ch. 558 ; 1854, p. 1086. §2. Amount limited to contract price. Whenever the labor performed or mate- rials furnished shall be upon the credit of any contractor who shall have made a contract therefor with the owner of the property, or such person interested as aforesaid, whether such contract be oral or in writing, express or implied, or for any specified sum or otherwise, or upon the credit of any sub-contract, or the assignee of any contractor, the provisions of this act shall not oblige the owner of the property, or other person in interest as aforesaid, to pay for or on account of any labor performed or materials furnished for such house, building, or appur- tenances any greater sum or amount than the price so stipulated and agreed to be paid therefor by said contract, or the value of such labor and materials, except as in the next section provided. Laws 1873, ch. 489, § 2, amending § 2 o/ Laws 1854, p. 108G ; 1869, ch. 558. § 3. Payments by collusion, and effect thereof. If the owner, or such person in interest as aforesaid, of any building for or toward the construction, altering, or repairing of whicU or its appurtenances, labor or materials shall have been furnished by contract, whether oral or written, shall pay to any person any money or other valuable thing on such contract, by collusion, for tiie purpose of avoiding or with intent to avoid the provisions of this act, when the amount still due or to grow due to the contractor, sub-contractor or assignee, after such pay- ment ha£ been made, shall be insufficient to satisfy the demands made, in con- formity with the provisions of this act, the owner or other party in interest, as aforesaid, shall be liable to the amount that would have been due and owing to said contractor, sub-contractor or assignee, at the time of the filing of the notice in the first section of this act mentioned, in the same manner as if no such pay- ment had been made. lb., % 3, amending § 3. § t FUing notice ; lien docket ; clerWsfee. Within sixty days after the per- formance and completion of such labor, or the final furnishing of such materials, the contractor, sub-contractor, laborer or person furnishing the same, shall file a notice in writing in the clerk's office in the county where the property is located, specifying the amount of the claim and the person against whom the claim is made, the name of the owner, or of the party in interest, as aforesaid, of the premises, and if in a city or village, the situation of the building by street and number, if the street or number be known. The county clerk shall enter the particulars of such notice in a book to be kept in his office, to be called the " lien docket," which shall be suitably ruled in columns headed "claimants," "against whom claimed," "owners and parties in interest," "buildings," "amount claimed," and the date of the filing of the notice, hour and minute, what pro- ceedings have been had. The names of the owners and parties in interest and other persons against whom the claims are made shaU be entered in said book in alphabetical order. A fee of ten cents shall be paid to said clerk on filing such lien, and no lien shall attach to said land, building, or appurtenances unless such notice shall be filed by said clerk ; and such notice when so filed shall thereafter operate as an incumbrance upon said property. lb. , § 4, amending § 4. § 5. Evidence to establish lien. Any person performing labor, or furnishing materials, in availing himself of the provisions of this act, shall, upon the trial, or at the assessment of damages, produce evidence to establish the value of such labor or materials ; and that the same was performed for or used by the said owner or party in interest as aforesaid, or his agent, original contractor, sub- contractor or assignee of such contractor, in or toward the construction, altering or repairing of such house, building or appurtenances. lb., § 5, amending § 5. §. 6. Action to enforce lien. — Any contractor, sub-contractor, mechanic, laborer, or other person performing any work or furnishing materials as above provided, or tjie assignee of any such person or persons, may, after such labor has been performed or materials furnished, and filing of the notice required by CH. XVI.] LIEN LAWS. 700-7 the fourth section of this act, bring an action in the supreme court in the county in which the property is situate, or in the county court of said county when the amount exceeds fifty dollars, to enforce such lien, which action shall be com- menced by serving a notice containing a statement of the facts constituting the claim and the amount thereof, and any other facts material to the case, on the owner of the property, or such party in interest as aforesaid, or his agent, as well as upon each and every claimant by whom notice of lien shall have been previously filed, as well as upon any contractor, sub-contractor, or other person having an interest in the subject matter of said claim, requiring such person oi persons to appear in person or by attorney within twenty days after such service and answer the same, and serve a copy of such answer, together with a notice of any set-off or claim that he or they may have, upon the claimant or his attorney, or in default thereof, that the claimant will take judgment against said owner or other person in interest as aforesaid, for the amount claimed to be due for the labor performed or materials furnished with interest thereon and costs, and the enforcement of said lien ; said supreme court and county court shall have full power to adjust and enforce aJl the rights and equities between all or any of said parties, and enforce or protect the same by any o^ the remedies usual in said courts, lb. , § 6, amending § 6. §. 7. Answer; mthin wlmt time to be ser««tZ.— Within twenty days after the service of said notice and a bill of particulars, as hereinafter provided, the defendant or defendants named therein shall personally serve the claimant, or his attorney, with a copy of his or their answer or answers, and notice of set-oH, or counter-claim, if any, duly verified by oath, to the effect that the same is in all respects true, or his or their default may be entered and judgment taken and enforced as hereinafter provided, lb. , § 7, amending § 7. §. 8. When action may be brought in justices' court. — ^When the amount of the lien claimed is two hundred dollars or under, the claimant, may commence his action in a Justices' court of the town or city in which the premises are located, by serving a notice upon the owner or party in interest as aforesaid, or his or their agent anywhere within this State, requiring him or them to appear before a justice of the town or city in which such premises are located, which notice shall contain a statement of the facts constituting the claim and the amount thereof, and shall require him or them to appear before said justice in person, or by attorney, at a time certain, not less than twenty days after such service, and answer the same, or in default thereof, that the claimant wiU take judgment against such owner or party in interest, for the amount so claimed to be due, with interest thereon and costs, lb. , § 8, amending § 8. §. 9. Notice and service thereof. — In any case where a notice hereinbefore mentioned cannot be served personally on such owner or party in interest, or his or their agent, by reason of absence feom the State, or being concealed therein, then such service may be made by leaving a copy of such notice at the last place of residence of such owner or party in interest, and publishing a copy thereof for three weeks in succession, in a newspaper published in the city or county where the property is located ; and in case of the service of such notice by publication, then the said twenty days shall commence to run from the date of first pubUca- tion of said notice, lb., § 9, amending § 9. §. 10. Bill of pa/rticvXars. — At the time of the service of said notice as hereinbefore directed, a bill of particulars of the amount claimed to be due from such owner or party in interest, his or their contractor or sub-contractor, verified by the oath of the claimant or his attorney to the effect that the same is true, shall be served as aforesaid upon such owner or party in interest, or his or their agent, and all other persons made parties (if any), except that such bUl of parti- culars need not be published with such notice, lb., § 10, amending § 10. §11. When derk may assess ammnt of lien ; Execution. In case said owner or other party in interest, or the person or persons upon whom such notice shall have been served, as mentioned in section six of this act, shall not appear as re- quired in and by the notice given in pursuance of the sixth and eighth sections of this act, then, on filing with the county clerk, when such action is brought in the Supreme Coujt or County Court, or with the justice, when the action is be- fore said justice, an affidavit of the service of such notice and bill of particulars. 700-8 LIEN LAWS. [CH. XVI. and the failure of the owner or other party in interest, and such person or per- sons as aforesaid, to appear as therein required, the amount of such claim may be assessed by said county clerk, or by the court or justice as the case may be ; and upon the assessment of damages as aforesaid, judgment shall be entered upon the said assessment, establishing the amount of said lien, with the costs ; execution shall thereupon issue for the enforcement and colleciHon of said claim so adjudicated and established, in the same manner as executions upon other judg- ments in said courts in actions arising on contract for the recovery of money only, except that the execution shall direct the officer to sell the right, title, and interest which the owner or other person in interest had in the premises at the time of filing the notice prescribed by the first section of this act. lb., § 11, amending §11. § 12. Issue, etc. On the appearance of both parties before the justice, where an action is brought before a justice of the peace, the owner or other party in interest as aforesaid shall put in an answer in writing duly verified with a bill of particulars, or counter claim or set-off (if any) annexed, and the issue formed by the service of the notice and bill of particulars on the part of the claiinant, and the answer and bill of particulars on the part of the owner or other party in interest, shall be tried and governed by the same rules as other issues in Justice's courts ; and the judgment thereon shall be enforced, if for tb« claimant, as here- by provided, and if for the owner or other party in interest, as in ot)ier actions arising on contract, lb., § 12, amending § 12. §13. Trial, etc., in the Supreme and, County Courts. When the action ia brought in the Supreme Court or in the County Court, the issue shall be formed by the service of the notice and biU of particulars, on the part of the claimant as before directed ; and the answer with a bill of particulars, set-off, or counter- claim of the owner or other, party in interest, or of any other person who has been made defendant as hereinbefore provided, duly verified. Id., § 13, amend- ing § 13. § 14. Notice of trial. At any time after the issue shall be so joined in the Supreme Court or County Court, and at least fourteen days before the com- mencement of the court, the same may be noticed for trial and put upon the calendar of said courts by either party furnishing the clerk of the court with a note of issue as now required in other actions ; and the action thereafter shall be governed and tried ia all respects as upon issues joined and judgment ren- dered in other actions for relief arising on money demands upon contracts in said courts ; and judgment thereupon shall be enforced if for the claimant, as pro- vided by this act, and if for the owner or person or persons in interest, as in other actions arising on contract. lb., § 14 amending § 14. § 15. Trial in Bupreime and County Courts. When such action is brought in the Supreme Court or in the County Court, such court shall have power to as- certain and declare the interests of the several claimants, if more than one, in the moneys due or to grow due from the owner, or other person or persons interested in said premises, as aforesaid, and the priority^and amounts of the respective Hens, as well as to adjudge or decree the particular person or persons entitled thereto, and to declare the interest of all parties who have been made parties to the proceedings, and to conclude the whole controversy in one final decision, ajid for that purpose to render judgment or make such order or decree in favor of or against any one or more of the parties severally or jointly as may be just, leaviug the action to proceed against the other party or parties, and may order separate trials between any of the parties in its discretion. lb. , § 15. § 16. Transcripts to be filed, etc.- When a judgment has been rendered by any justice in favor of a claimant, such justice shall give a transcript thereof, which may be filed and docketed in the office of the clerk of the county where tihe judgment was rendered. Such transcript shall contain the full name or names of ihe party or parties in whose favor or against whom such judgment shall be rendered, and their relation as claimant or owner, debtor or creditor a specific description of the premises affected thereby, the amount for which such judgment is rendered, together with the costs incident thereto. The time of receipt of such transcript by the county clerk shall be noted thereon, and entered on a docket, and thereupon such judgment shall become a judgment of the » ■ CH. XVl] LTEIT LAWS. 700-9 County Court, and enforceable in all Tespects as provided by section eleven of this act. lb., § 16. § 17. Refer enee to take proofs. All or any of the issues in such action (if brought in the Supreme Court or a County Court), or for the purpose of taking proofs therein, may be referred by the written consent of the parties, or where the parties do not consent, the court may, upon the application of any party to such action, direct a reference thereof, in the same manner and to the same effect, in all respects, as specified in section two hundred and seventy-one of the Code of Procedure, and such referee or referees shall have all the powers con- ferred upon referees by sections two hundred and seventy-two and two hundred and seventy-three of said Code. lb., § 17. § 18. Costs, etc. Costs and disbursements shall be allowed to either party upon the principles and by the same rules in such actions as are now allowed by law in actions for relief arising on contract, and shall be included in the judg- ment recovered therein, and the expenses incurred in serving said notice by publication may be allowed in Justice's courts, and added to the amount of costs now allowed in said courts. When the action is brought in the Supreme Court or in a County Court, such direction shall be made in the discretion of the court, as to the payment of costs, as shall be just and equitable, and the judgment entered shall specify as to whom and by whom the costs are to be paid. lb. , § 18, amending § 16. § 19. Transcripts, and filing of same. A transcript of every judgment ren- dered under this act, headed " Uen docket," shall be furnished by the clerk of the county where rendered and docketed to the successful party, who may file the same with the county clerk of any other county, and the same shall there- after be lien on the real property, in the county where the same is filed and docketed, of every person against whom the same is rendered, if for twenty-five dollars or upward, exclusive of costs, in like manner and to the same extent as in other actions for the recovery of money arising on contracts, and where the judgment is against the claims, the county clerk shall enter the word " dis- charged " under the last head in his lien-docket, on receiving a transcript from the county clerk or justice that judgment has been rendered against the claim- ant, lb., § 19, amending § 17. § 20. Proofs of claims of oth^ claimants. In case the owner or his agent, or other parties in interest, shall desire to secure proofs of and from persons having claims under the provisions of this act, he may at any time give personal notice to such person or persons, or if, by reason of absence from the State, or being concealed therein, such personal service cannot be made, then such owner or party interested in such property as aforesaid, or his or their agent, may, at any time, give public notice in the same manner as notice is required to be given for sale of real estate by virtue of an execution, to all persons having claims under any of the provisions of this act against such buildings, lands, premises, or ap- ( purtenances, at the time of the date of publishing such notice, to present the same, with vouchers in support thereof, to any justice of the peace in the city, town, or village where such premises are situated, on or before a certain hour or day to be specified in said notice, and to be at least six weeks from the service or the first publication of said notice ; and ia case of the failure of such person or persons to present his or their claims as required by said notice, each and every person so failing shall forever lose the benefit and be precluded of the said lien. lb., % 30, amending % 18. § 21. Notice to claimants to present claims; staying proceedings. Whenever such owner or party in interest, as aforesaid, or his or their agent, shall be pro- ceeded against by a mechanic, contractor, or sub-contractor, or any other person claiming under the provisions of this act, it shall be lawful for such owner or person in interest, or his or their agent, to give the notice prescribed by the pre- ceding section for the presentation of claims to the court or justice before whom the proceedings all commenced, and present as a set-off all claims and liens thereupon presented or established, and the justice before whom, or a judge of the court in which the proceedings shall be commenced may, upon the request of the owner or his agent, or such person interested in the premises as afore- said, grant a stay of proceedings sufficient to enable such notice to be given, and Vol. L— 49 700-10 LIEN LAWS. [CH. XVL call in aU such claims, which said claims, if established and allowed by the justice or the court, shall be adjusted and may be a set-off to such contractor's claim to the amount so allowed or otherwise, as shall be just, according to pri- ority, and the court may determine and enforce any of the claims so presented, and render judgment thereupon, i?., § 31, amending § 19. § 22. When lien ceases ; jvdgment, how enforced. Every lien created under the provisions of this act shall continue until the expiration of one year, unless sooner discharged by the court or some legal act of the claimant in the proceed- ings ; but if within such year proceedings are commenced under this act to en- force or foreclose such lien, then such lien shall continue until judgment is ren- dered thereon, and for one year thereafter ; such lien shall also continue during the pendency of an appeal, and for one year after the determination thereof./ When a judgment is rendered as aforesaid, it may be docketed in any county of this State, and enforced as if obtained in an action in a court of record. li., % 22, amending § 20, and Laws 1871, p. 363. § 23. Appeals. After a judgment shall have been rendered in pursuance of the provisions of this act, either party may appeal therefrom in the same manner, and within the time appeals may now be taken in actions for the re- covery of money arising on contract, and said appeal shall be thereafter heard, governed, and determined upon the same principles and by the rules that appeals in said actions are now heard, governed, and determined, vrith like costs and disbursements, and the judgment thereon enforced in the same manner as judg- ments on appeal are now enforced and collected. Such appeal shall be had and taken only in the proceeding or action wherein judgment shall' be given or ren- dered, but such appeal shall not be operative as a stay of proceedings or in any manner to affect the foreclosure or action of any other claimant or claimants then pending. /6. , § 33, amending § 21. § 34. Judgment for defwieney. When any action is brought in the supreme court or county court under the provisions of this act, the court shall have power to direct that judgment be entered for any deficiency remaining after the en- forcement of the judgment originally rendered in such action against the owner or other party interested in said premises affected thereby ; and may issue execution against other property, real or personal, of such owner or party in- terested as aforesaid, lb., § 34. § 25. Pi-iority of payments. The liens created and established by virtue of the provisions of this act shall be paid and settled according to priority of notice filed with the county clerk, as directed by the fourth section hereof. lb., § 35, amending § 22. § 26. Liens, how discharged. All liens created by this act may be dis- charged as follows : First. By filing with the county clerk a certificate of the claimant, or his successor in interest, acknowledged or proved in the same mau- ner as a conveyance of real estate, stating that the lien has been paid or dis- charged. Second. By depositing with the justice or clerk of the court a sum of money equal to double the amount claimed, which money shall thereupon be held, subject to the determination of the lien ; or. Third. By an entry of the county clerk, made in the book of liens, that the proceedings on the part of the claimant have been dismissed by the court in which it is brought, or a judgment rendered against the said claimant ; or, Fourth. By an afiidavit of the service of a notice from the owner or party in interest, as aforesaid, or his or their agent, attorney, contractor or sub-contractor, to the claimant, requiring such claimant to commence an action for the enforcement of his lien, and the failure of said claimant to commence an action as provided by section twenty, of this act. 2b., % 26, amending %2S. § 87. Acts reptaied. All acts heretofore passed for the better security of mechanics and others erecting buildings and furnishing materials in either of the counties of this State, except the counties of Kings, Queens, Brie, New York, Onondaga, and Rensselaer, are hereby repealed ; but this act shall not be so construed as to affect, enlarge, invalidate or defeat any Uen, or right to a lien, now existing, or any proceeding to enforce such liens now pending by virtue of the provisions of the acts hereby repealed. lb., % 27, amending % 24. The ajnended law (1869, ch. 558), requiring notice of the lien to be filed with CH. XVI.] LIEN LAWS. 700-11 the county clerk, applies to claims for materials furnished before its passage. 5 Lansing, 173. Lien, as to whariies, piers, etc. By the statute {Laws of 1873, p. 1567), the provisions of the laws relating to mechanics' liens, theretofore passed, were made to apply to wharves, piers, bulkheads, and bridges and materials furnished there- for, and labor performed in constructing the same, and other structures con- nected therewith ; the lien to be filed within thirty days from the time when the last work was performed or materials delivered. in. LIEN LAW— SHIPS AND VESSELS. The act unconstitutional, in part. The proceedings authorized by the act of 1862 (c7i. 482), providing for the collection of demands against vessels, so far as they give a Uen for supplies furnished to, or repairs made upon a vessel engaged in foreign commerce, are unconstitutional. 59 If. Y. , 554 ; 43 Id. , 554 ; 39 Id., 19. A bond, therefore, given under the statute to release a vessel detained by virtue of an attachment issued therefor, is void. 59 Jf. T., 554 ; and see 44 Id. , 415 ; 46 Id. , 636. But where, in such a case, the attachment was issued to enforce a claim for materials furnished and labor performed in building, re- pairing, fitting, furnishing and equipping a vessel, it was held that so much of the statute as authorized proceedings to be taken to enforce a claim for repairs, was unconstitutional and invalid, but so much thereof as authorized proceedings to be taken to recover so much of the demand as was for building, was constitu- tional and valid. 1 Sun, 140. In what cases a lien may be created. A lien may be created against an ocean bound vessel, for the building of the same. 1 Hun, 140. The fact that work done upon a vessel was done upon the personal credit of the owner, does not, except by express agreement, impair or affect the lien thereon given by the statute. Nor is the lien affected because time was given for payment, unless the time extends beyond that specified for the existence of the Uen. 57 N. Y. , 112. The consent of the claimant to the departure of the vessel from port is not a waiver of his lien. lb. A lien does not arise for materials furnished in this State, and used in the construction of a vessel in another State. 1 Bun, 650. A canal boat is a vessel within the meaning of the statute. 3 Hun, 545. When Hen ceases ; specifications. The lien ceases when the vessel has left the port unless the person claiming the lien files specifications thereof within the time prescribed by the statute. 61 W^. Y., 530. But where an unfinished ves- sel leaves the ship-yard of her builder for further work to be done at another port (three-quarters of a mile away), and proceedings to enforce a lien for a debt contracted at the ship-yard are taken before she leaves such port, the hen, it seems, is not lost, although no specifications have been filed. 3 Landing, 417. If a particular statement of the claim is filed in due time, although filed as part of the proceedings to enforce the lien, and not separately, it is a compli- ance with the statute in regard to the filing of specifications. lb. A Judge of the Superior Court of the city of New York is authorized to issue an attachment on a lien claimed under the statute. 51 2/'. Y., 78 ; and sea Code of Civil Pro. , § 267. CHAPTER XVII. LIMITED PAKTNEESHIPS, AND OOMPEOMISES BY JOmT-DEBTOES. Section. I. Ltmitei) ok Special Pabtneeships. n. COUPBOIBSES BT FASTNEBS AND JOINT-DeBTOKS. SECTION I. LIMITED OR SPECIAL PABTNEESHIPS. This form of partnersMp was wtoUy nnknown to the com- mon law, and is authorized and regulated only by statute. By the common law of partnership a party having any interest in the stock, and receiving any proportion of the profits, was a partner, and as such, liable in solido for the whole debts of the firm. The liability of a partner in a limited partnership is differ- ent ; the purpose of a limited partnership being to enable a party to put into the stock of a firm a definite sum of money, and abide a responsibihty and share a profit which shall be ia pro- portion to the money thus contributed, and no more. Pars, on Con. vol. 1, p. 185. Limited partnerships have but recently been introduced into this State ; the first statute on the subject having been passed on the 17th of April, 1822. Laws of 1822,^. 259. The present statutes on the subject may be found in the Re- vised Statutes of 1830, which, with the amendments, and addi- tions since made, constitute the statutory law of this State in reference to this species of partnership. 1 H&a. Stat. 764 ; Laws 0/1837, p. 101 ; 1857, vol. 1, p. 836 ; Pub. Acts, 79 ; 1858, p. 702 SPECIAL PAETNEESHIPS. [CH. XVII. . 449; 1862, p. 880; 1863,^. 227; 1854,^. 1084; 1864,^. 71; 1866, ch. 70 ; II. eh. 661. Those who associate themselves into a special partnership under the statute, must substantially comply with its provisions, or they wiU be liable as general partners. Defects of mere form will be overlooked, but not those of substance. 6 HiU, 481, per Beardsley, J, ; and see 4 JE. D. Smith, 611, &2Q,per Woodruff, J. For what purposes formed,